Australia's Federalism: A Critical Analysis of Governance Issues

This report provides a critical analysis of Australian federalism, examining the statement that Australia would be better governed without it. It explores the historical context of federation, the division of powers between the federal and state governments, and the impact of federalism on Australian politics and media. The analysis delves into the complexities of intergovernmental relations, fiscal imbalances, and the challenges of policy making in a federal system. The report discusses the evolution of federalism, the influence of modernization, and the roles of self-rule and shared rule. It also considers landmark cases related to federalism, the three wings of government, and the relationships between federal, state, and local governments. The study examines the merits and demerits of federalism, the budgetary realities of governmental funding, and the complexities of the system in the context of policy and service delivery. It draws on theories, tools, and concepts from political science to support its critique, and offers a comprehensive overview of federalism's impact on Australian governance.

Running Head: CRITICAL ANALYSIS OF FEDERALISM
AUSTRALIA WOULD BE BETTER GOVERNED IF IT WERE NOT A FEDERATION
Name of the Student
Name of the University
Author’s Note

1CRITICAL ANALYSIS OF FEDERALISM
Federalism is the shared form of Government between the national and the state levels.
The federation in Australia was formed by combining the six European Colonies namely; New
South Wales, Victoria, Queensland, South Australia, Western Australia and Tasmania, into a
single federation called the Commonwealth of Australia. This federation was a result of a lot of
consultation, debate and deliberation and has successfully emerged only after the approval of the
people by voting or referendum.
The purpose of this thesis is to critically analyze the issues of federalism and its impact
on the Australian politics and media. The thesis aims to bring out the pros and cons of federal
system and its impact on the Australian community as a whole. The aim of the study if to bring
out the critical analysis of the federal system in Australian government and the analysis of the
Australian system of Government if the contrary is applied to its regulatory forms. The thesis is
critically analyzed to bring out the differentiation that lies between the federation as a function of
society and not of constitution or political structures
The Constitution of Australia that came into effect was laid on the principles of power
sharing arrangement between the Federal and the states. Section 51 laid down the powers of the
Federal Government, which includes powers related to taxation policies, immigration, marriages,
old-age pension policies, the census, trade with other countries, bankruptcy and many more.
However, there are other sections, which also talk about the powers of the federal, unless that
same is described by the Constitution, such powers shall remain with the state. The federal
system of Australia had started out like a clear distinction between the powers of the state and
the federal. However, over the time and evolution, the powers have mixed and have formed a
mess out of such distinction and relation to the international policies. At a certain level of
Government, which is the working class, there has been a mix up of powers and authorities,

2CRITICAL ANALYSIS OF FEDERALISM
which is likely to cause huge confusions and overlapping between the powers owned by the
federal and the states. The vertical fiscal imbalance is grave vicious cycle where the federal
government raises money and the state government spends it. The state government may or may
not need the percentage of funding provided by the Federal government. However, in case of
surplus, it embarks over expenditure and in cases of deficit, the service from the fund gets highly
affecting. Therefore the coordination between the state and the federal government has caused
the imbalance and hence, people are calling out for a change in the regulations. The makers of
the Constitution did not think that the state would give up their revenue sources and powers.
Every now and then, there have been continuous meetings arranged by the State Premiers to
meet with the Prime Minister, for the Council of Australian Governments meeting. In this
meeting, all the leader of the federation come together and meets regarding the discussions of
their respective matters. Some of the federal ministers also meet at different times with their
respective state counterparts for the discussion of core matters and its growth and development.
Some scholars like Chibber and Kollman 2004, see that an inherent tendency to
centralization succumbs to the pressure of uniformity and coordination that is the essence
towards modernization. However, Sawer 1969 observes that such a pressure is only a tendency.
However, the most intriguing question is that whether such a pressure created by modernization
can be avoided by the personnel of centralized program and resist the tendency of encroach the
prerogatives of the constituent units to drift to the central government. The factors influencing
the approach differ vastly from socio-economic to the political and legal matters along the
United Nations Conventions and principles. Therefore, the differentiation lies between the
federation as a function of society and not of constitution or political structures. The framework
of the government lies on the approach of two rules namely; the self-rule and the share rule. The

3CRITICAL ANALYSIS OF FEDERALISM
self-rule implies the centralized mode where the powers and authorities are centralized in an
accumulated form in a single place. However, the share rule implies federalism where the rights,
powers and the authorities of the government are not accumulated. Rather it is distributed evenly
among all the states to look closely into the local matters and delivering the services to the
required field. According to Zines 1986, it has been explained the makers of the Australian
Constitution had focused largely on then limited powers to the central, which means limitation of
centralization, form of government. It was further held by the scholar that the powers were
delegated to the states as the independent entities, each carrying out their functions within their
own territory without the interference of the center. Deakin 1890 saw the U.S. Model as the one
preserving rights with the most jealous caution. On the contrary, in the Australian form, no
mention has been made for the local governments at the local levels. It is at the free will of the
states to exercise their powers accordingly at their own instrumentality depending largely on then
delegated powers including both revocable and delegated powers.
As opined by Toyne 1994; Yenken 2002, p. 84, the central government leadership in
Australian policies is making it well known in the literature. However, the universal health
program initiated by President Clinton in the period 1993-1994, raised loud debates not only
about the health program as a value for public but also for the federal power and its involvement
in such propositions. According to Atlantic Monthly, historian Genovese argues that the trend
towards or away from the federal system is very complex and constantly in flux.
In the current era of education, the trend seems to be weighing the side of federal system.
According to McDermoth, the growing federal system can be evidenced in the budgetary and the
staffing perspective assessing the mandate federal activities. Michael Greve, stating that the more
innovative and the states are opting for the federal state system, has explained the same.

4CRITICAL ANALYSIS OF FEDERALISM
However, this may result in the problem for the federal intervention in state federalism. On the
other hand, in the Posner’s view, it has been stated that the approach of cooperation among the
states is a voluntary and surety way to avoid any preemptive and unnecessary federal
intervention in the governing of the states and their authorities.
In the lights of above discussion, it can be understood that the concept of federalism is a
very broad concept. The division of labor tries to segregate the powers and authorities from the
center to the state. The merits of federalism lies vastly on the segregation of power, which gives
each, state its own authority and set of powers to deal with the matters and policies. However, in
complete federalism, the states have no intervention from the center in its policy and
implementation. Both the set of governments operate independently without interfering in the
matters of one another. Nevertheless, in the absence of federalism, the power will be
accumulated in the center and all the policies, laws, and everything shall be enacted and executed
from one authorizing party. Accumulation of power may lead to complications and mess relating
to the effective delegation of authority and the policies’ proper implementation. As opined by
Michael Belknap, the control of crime and its level at the local level will be difficult in case the
federalism is absent. In Seminole Tribe v. Florida (1996), it was held that the states are immune
from the legal suits initiated by the private parties even when the funds provided to the states for
the continuation of the activities of the private parties is from the federal power. Further, in
Alden vs. Maine (1999), it was held by the Court that the state workers do not have the
advantage to sue the state to enforce a federal law or poly unless otherwise mentioned in such
policy or law. Therefore, it can be understood that the state enjoys similar sovereignty and
sovereign powers and immunities as enjoyed by the Center. Therefore, the sovereign immunities
of a state cannot be abolished by the Center or Congress thus, protecting the states from legal

5CRITICAL ANALYSIS OF FEDERALISM
proceedings as initiated by the state workers against the state. The two landmark cases in the
understanding of the concept of federalism are firstly, Planned Parenthood vs. Casey (1992),
wherein the Court reaffirmed the ruling in Roe vs. Wade (1973), and upheld certain restrictive
regulations on the abortion policies in the state of Pennsylvania stating the requirement of
informed consent and a mandatory 24-hour waiting period. However, the ruling was criticized by
Robert Nagel as the violation of the fundamental right to the choice to reproduce. The case cited
by him was City of Boerne vs. Flores (1997), where the court invalidated the Legislation called
the Religious Freedom Restoration Act passed in 1993, leading to the affirmation of the judicial
supremacy. Therefore, the concept of federalism is a combination of Legislature, Executive, and
the Judiciary, the three wings of the Government in the state as well the national portfolio.
There are three wings of government namely; the Legislature, the Executive and the
Judiciary. All the three wings are organized interdependently and at the same time dependently
so that one does not interfere in the powers and duties of the other. Likewise, in a decentralized
form, the three wings are enacted in the states as well as in the centralized form to give effect to
the independency of their powers and duties. The relationship between the federal, state and the
local governments is that of a significant one, particularly in the big cities where the fund
allocation and the maintenance of the three wings of the government in each of the national,
state, and the local level is difficult and expensive. In some places, the federal governments
maintain direct working relationships with through grants, policies, legislative earmarks and
others with big cities, school districts, law enforcement agencies and so on. For an instance,
Michal Belknap mentioned that the city of San Diego long bypassed the state Government to
deal directly with U.S. Navy. On the contrary, the local governments have developed a very
complicated relationship with the federal government as some policies are devolved from the

6CRITICAL ANALYSIS OF FEDERALISM
federation to the local governing authorities. Michael Greve explains that state government does
not operate to closely examine the problems of the citizens rather, their option is largely
dependent of the interstate competitions for business and trade, resulting in each state emerging
as a potential rival independent power thriving to improve and develop each state. It works more
as independent power centers rather than the supplement to the powers of the national
government without the thrive to compete and grow their states independently in the best interest
of the people and the business. Competition imbibes to work more towards the growth and
development while mere supplementation works more like the obedience to the national power
without the zeal to work towards the best interests of the people of the state. However, Kathryn
McDermoth takes the precautionary approach and explains that there are certain responsibilities,
which require expertise of knowledge, and not the general rule of politics like the school district,
education, areas of crime and crime control and family matters and policies related to the state
customs and rituals of every community and others. The concept of federalism defines the
intergovernmental relationships, which are likely to get largely influenced by the budgetary
reality of the governmental funding system. Kathryn McDermoth affirms federalism as an
effective way of governmental functioning if the federal budget permits the continuity. In other
words, this means that the budget surplus is an important aspect to implement such a bifurcated
federal system of government and if the funding continues to be in surplus, then the federalism
can be effective in achieving goals and objectives of the government and its policies. On the
contrary, Michael Greve, explains that there is an inevitable pendulum existing between the
centralized and the decentralized form of governments. If the centralized programs fail, there
will be debates looking out for flexibility, autonomy and a system that would be more ‘close to
the people’ to assess their problems and requirements closely whereas, if the decentralized

7CRITICAL ANALYSIS OF FEDERALISM
programs fail, there will be lack of accountability and hence, the debates will call for renewed
approach to centralization. Thus, one cannot exist without the other, and so, depending upon the
situations and the requirements of the government system and the political stability of the state,
the centralized and decentralized programs can be effectively implied. However, there can be a
combination of both the programs like in India, the country stand on the quasi-federal form of
government where the state and the center has different divided powers and duties and
authorities which is not absolute. The policies imposed by the state are independent but in
concurrence to the national laws and policies depending upon the national and the concurrent
list. This means that the state and the center are independently dependent upon each other
highlighting the fact that the policies introduced by the state cannot conflict with that of the
national provisions relating to the similar policy.
Federation is most useful for large countries with diverse population like Russia or the
United States, or those countries with internal division based on its history and cultural
background like Germany, Belgium, and United Kingdoms. Australia is a small island, which
emerged out as a shipping time between the capitals. In the recent calculation, the country is vast
though the population of the country is sparse which a single unified form of government can
govern. There are presently, nine governments governing the country and its thriving for the
efficient officials to perform local services, which the Commonwealth cannot. The national
government is more is like a general form, which should look into the matters, which involve
national issues, and not the local matters like the transport and planning. The new Australian
constitution would give way to replacement of monarchy with various different positions. Like in
Ireland, the president has more powers than the Taoiseach.

8CRITICAL ANALYSIS OF FEDERALISM
Thus, the analysis lies in favor of semi federalism which involves keeping the states but
limiting the powers as per the directions of the central power. Starting with the collective
national elections in the Senate, every legislation should be negotiated by every executive before
its enactment. Furthermore, the constitution should protect the fundamental liberties and rights of
every person, which can be challenged in the Court in case of any violation. This should be done
to curb the politicians from claiming more powers from the state. The constitution of Australia
should recognize its people irrespective of their caste, creed, race, color, religion and everything,
which may cause a matter of dispute. However, the system largely depends upon the fiscal
surplus as re-organization means re-investment of money and therefore, the expenditure. Peter
Beattie also states that if the states are not properly funded, they should be abolished or the scope
of their powers can be brought to a limit. Instead, larger amalgamated councils would pave way
for an effective federation in a country like Australia. Similar amalgamation can be seen in New
South Wales at the time. Other scholars like Bob Hawke and John Howard also Affirms that if
the Constitution making is started over, the states shall be abolished for the better government
formation in Australia. However, it can notice that over the years that changes to federalism has
become incremental and that the states have ceded their powers to the federal.
Thus, it can be concluded from the above study that centralization has always
been a sub-constitutional mechanisms and processes rather than former constitutional changes.
Only three constitutional amendments have been passed which has made major changes to the
constitution of Australia resulting in the alteration of the division of power in the Australian
constitutional authorities. The first amendment of 1928 Section 105a has given Commonwealth a
role play in managing state borrowing. Secondly, the 1948 amendment where section 51xxiiia,
has granted Commonwealth the power to fund a range and variety of social services. Thirdly, the

9CRITICAL ANALYSIS OF FEDERALISM
1967 amendment, section 51xxvi, allows the Commonwealth to enact special laws for the natives
or the aboriginal people. Therefore, from the trend, it can be realized that the state is ceding its
powers in the coming evolutions resulting in the more uniformed distribution of the powers
between the central, the state government, and hence keeping a balance between both the
authorities. In other words it can be said that the state is withdrawing its absolute powers that it
derives from the constitution of Australia and is effectively giving it to the central government
for a more uniformed and centralized mode of policy making and execution for the matters
which affects the population and the country as a whole like central taxation systems, the policy
making for the indigenous people, management of state borrowing, centralized social services to
reflect country’s social responsibility as a whole. Thus, the changes in the system have taken an
incremental trend and thereby are an invitation to more evolutionary changes, which will adapt
the principles of modern politics and society in a more accepting way. The changes brought by
the amendments have affected the country at large against coercive use of spending power, High
Court interpretation by centralizing constitutional interpretation, coercive use of the treaty
power, and cooperation. The last change is a significant change where the states themselves have
pooled in to transfer certain responsibilities to the Commonwealth with regard to certain policies
and provisions. It can notice that over the years that changes to federalism has become
incremental and that the states have ceded their powers to the federal.

10CRITICAL ANALYSIS OF FEDERALISM
References:
McDermott, Kathryn A. Controlling Public Education: Localism Versus Equity. Lawrence:
University Press of Kansas, 1999.
Greve, Michael. Real Federalism: Why It Matters, How It Could Happen. Washington, D.C.:
American Enterprise Institute, 1999.
Posner, Paul. The Politics of Unfunded Mandates. Washington, D.C.: Georgetown University
Press, 1998.
Eugene D. Genovese, “Getting States’ Rights Right: A Review of Forrest McDonald, States’
Rights and the Union,” Atlantic Monthly 287.3 (March 2001): 82–89.
Toyne, P 1994, Reluctant nation: environment, law and politics in Australia, ABC Books,
Sydney.
Yenken, D 2002, ‘Governance for sustainability’, Australian Journal of Public Administration,
vol. 61, no. 2, pp. 78–89.
Belknap, Michal. Federal Law and Southern Order: Racial Violence and Constitutional Conflict
in the Post-Brown South. Athens: University of Georgia Press, 1987.
Seminole Tribe v. Florida, 517 U.S. 44 (1996)
Alden v. Maine, 527 U.S. 706 (1999)
Planned Parenthood v. Casey, 505 U.S. 833 (1992),
Former Queensland State Premier Peter Beattie. Where To From Here, Australia?

11CRITICAL ANALYSIS OF FEDERALISM
City of Boerne v. Flores, 521 U.S. 507 (1997)
Roe v. Wade, 410 U.S. 113 (1973)
Nagel, Robert F. The Implosion of American Federalism. New York: Oxford University Press,
2001.
Deakin Alfred 1890 Speech. In Debates and proceedings of the Australasian federation
Conference, Melbourne, 6–14. February.
Howard John. 2007. Australia rising to a better Future. Millenium Forum, Sydney, 20 August
2007.
Zines Leslie. 1986. The federal balance and the position of the states. In The convention debates
1891–1898: Commentaries, indices and guide, ed. Craven G., 75–87. Sydney: Legal
Books.
Chhibber Pradeep, Kollman Ken. 2004. The formation of national party systems: Federalism and
party competition in Canada, Great Britain, India, and the United States.Princeton
NJ: Princeton University Press
.