Federalism is not Working in Australia - Essay Example

Federalism Is not Working in Australia Name: Tutor: Subject: Date: Abstract Federalism in Australia is an inefficient and costly system of governance because it does not conform to a conventionally perceived federal state. It produces nothing more than duplication and overriding services that hold the country back economically and socially. The commonwealth holds the majority of the powers thus causing problems to states. This imbalance is caused by the power given to the High Court to interpret the constitution in accordance with the federal government. The increasing problems which are witnessed relate to High Court’s interpretation of the constitution in favor of commonwealth making the states feel that the needs of the people are not met. The federal system has created public frustrations due to inefficiencies created by multiple levels of the government and increasing problems with health and education policies. Federalism in a country with large geographical size such as Australia is expected to promote democracy but this is not the case with Australian system. Keywords: Federalism, Commonwealth, States, High Court, Constitution. Introduction Federalism refers to a system of government where all entities including states and provinces share power along with the national government (Follesdal, 2010). Federalism was adopted because it offered several advantages such as uniting to achieve national goals, democratic rights, passing goals and developing a policy for local needs (Stewart, 2009). However, this system can be true in other federal systems such as Canada or Brazil, or in any other countries where they are running effectively. In Australia, federalism does not get good press as it is constantly scrutinized that it is a wasteful system of government as it does not conform to the conventional federal model. Saunders (2014), argue that under Australian federal system, it is difficult to get better outcomes in areas such as housing, health, and indigenous affairs unless the governments work together.”In other words, Australian federal system is responsible for economic and social drawbacks that are being experienced. In other parts of the world that apply federal system, it is seen as a flexible system of government that is highly competitive, efficient, and most appropriate for addressing modern pressures of globalization. This paper will show how federalism is not efficient in Australia like in other parts of the world. This is mainly because Australia’s federal system is one of the oldest federal systems of governance in the world as it follows the United States Model. The former Prime Minister, Bob Hawke also recognizes that Australian federal system is worthy for abolition. In other countries, federalism in Australia solves no problem and offers no problem. One of the supposed benefits from federalism is to protect against dictatorship through distribution of power but distribution of power are not effective in Australian system (Sharma, 2008) Disadvantages of Federalism in Australia There are several weakness associated the Australian federalism. One of the major weaknesses is duplication and overlapping of services in different parts of the country (Saunders, 2014). The term overlap refers to a situation where there is more than one government operating the same policy. On the other hand, duplication is when multiple levels of government are providing the same policies to the people. Duplication and overlap are products of concurrency which is a key feature of federal systems (Hollander, R., 2009). When federalism was formed, Australians expected an organized federalism where states had clearly defined and separate roles from that of the federal government, improved economic efficiency, and international competitiveness. However, this has never been a reality as the role continuously becomes collaborative forming a “cooperative federalism” (Stewart, 2009). Commonwealth government used s 109 of the constitution to gain its power and now it has fiscal power. Commonwealth government is using section 96 of the constitution to manipulate states to ransom funds. This has promoted inequality and unhealthy competition between states. The redundancy of this system is reflected in its inability to important areas such as education. In developed countries, public policies have significantly improved the quality of education because of improved transparency, investment, and flexibility. But Australian system has a problem with education and health policies subjecting this federal system to questions (Hinz, 2010). Federalism has created a Vertical Fiscal Imbalance because the commonwealth government is the primary collector of revenue. This gives the commonwealth government power to leverage the spending policy, which was decision originally intended for states. This control of spending policy interfered with the limits which were originally designed (Stewart, 2009). This encroachment into state territories has resulted into duplication of some areas and this has negative impacts. This impact is, however, beneficial to the electorate as they can pursue alternative paths for resolution of difficulties. Constitution and the High Court The other problem with federalism is the power given to the High Court of Australia to interpret the constitution in accordance with the federal government. This power has caused problems to the states and citizens. It is the primary function of the High Court to interpret the constitution and settle disputes (Zines, 2008). The High Court has the power to decide whether it is the commonwealth government or the state government which has the authority and responsibility towards a situation. The problem with this is that the High Court usually makes decisions that favor the commonwealth government. Developing interpretations of the constitution by the High Court has resulted in more law-making powers for the commonwealth especially in external matters. Commonwealth uses corporation powers 51 (xx) of the constitution to regulate employment and industrial relations instead of the historical industrial legislation, conciliation, and arbitration in s 51 (xxxv). States have challenged this but the High Courts ruled in favor of the commonwealth. The High court also endorsed commonwealth the powers over defense and taxation and this makes them have a monopoly over those areas. Commonwealth also has been given external affairs powers such that they deal with cases on discrimination (Zines, 2008). High Court also interprets s 109 of the constitution, “inconsistency clause” to encourage the expansion of commonwealth control. This commonwealth legislative power is seen as Court’s favor towards commonwealth such that it is the only commonwealth can expand its powers and also the expansion of commonwealth capacity to exercise exclusive control over those areas. A number of cases have been presented in an effort to interrupt those expansions but the rulings have always been made in favor of the commonwealth. Examples of such important cases include the Engineers case (1926) and the Tasmanian Dam case. These cases indicate the extent of the conflict between state and commonwealth legislation. Commonwealth government gains its powers at the expense of the states (Dixon, 2015). Australian federalism Australian federal system comprises of six states and two territories operating under commonwealth government and it was created in 1901 and it was inspired by US Constitution which was slightly decentralized. The six British colonies agreed to unite so that they can benefit such as having unrestricted trade throughout the federation, single armed force, and currency. The intention of the colonial government when they borrowed ideas from American model was to promote distribution of power so that commonwealth government has exclusive powers (Aroney, N., 2016). However, it does not explain how much power to be left for state government. The decentralized government was also to be achieved by forming a judicial institution and this led to the formation of High Court of Australia so that it can interpret the constitution. Decentralization was also to be achieved by ensuring that federal laws override any state laws, and this is where they are said to be inconsistent with federal laws. Some decisions made by the High Court have resulted in more power being centralized in the commonwealth. For example, the High Court’s decision in the Uniform Tax case (1942) gave the commonwealth exclusive powers to impose an income tax. Another example is in Tasmanian case (1983) where the High Court gave commonwealth the authority to legislate over external matters. In this case, the Tasmanian government proposed to dam Franklin River in order to generate electricity but the court claimed that it conflicted with several federal acts (Sayers, 2013). There was a most recent constitutional challenge to Workplace Relations Amendment (Work choice) Act 2005, failed because of 5- 2 majority of the High Court deemed that the commonwealth legislation is more superior over state legislation in matters related to corporations (Fenna, 2012). Australian Parliament resembles English monarchical government as the founders of Australian model designed. A parliamentary responsible government is accountable to the parliament and to the citizens. Those elect into power is expected to act in the best interest of the country and to have full sovereignty over the party that elected him/her into power. However, co-operative federalism is now part of an integral part of Australian federal system as the High Court regards it as “positive objection of the constitution.” Co-operative federalism refers to a system of governance where the federal and the state work together to achieve a common goal. Co-operate governance is normally used where the federal government doesn’t have the power to legislate in such an area (Jones, 2008). There are so many cases where this has been applied in order to achieve a common goal. Some of the known cases include the case of R v. Duncan; and Ex parte Australian iron and steel Pty Ltd. In this case, the High Court deemed the formation of coal industry tribunal with both federal and state power as constitutionally valid. According to the constitution, both commonwealth and the state should exercise their powers in such a way they are complementary of each other. However, due to the influence of the High Court, co-operative federalism is not exercised as indicated by the constitution. The High Court even termed co-operative federalism as “political slogan” in the case of Re Wakim; Ex Parte McNally. A recent debate on health and mining tax under the Labour government showed that the cooperative relationship between the two levels of the governments is not built on strong constitutional foundations (Fenna, 2012). The Australian co-operative federalism continues to be the main feature of Australian model despite posing a threat of forced coercion. The American model has been adhered to except the presidency model. However, English principles of parliamentary needs to be strengthened. Is Australian model federal in nature? The answer to this question is No as it fails to fulfill the conditions of a federal system. The unabated centralism is the main reason that contributes to the failure of federalism. Commonwealth continues to be powerful over the states in several areas. For example, commonwealth retains powerful financial, legal, and political levers (Fenna, 2012). In general, the states and territories have not been successful in fighting the centralizing tendencies exhibited by the continued dominance by the commonwealth. These trends towards centralism render the relevance of federalism obsolete. The potential benefits of federalism are wasted, including innovation, diversity, and responsiveness (Hinz, 2010) and this has questioned its purpose of implementation. Although federalism was established to meet the diverse needs of the population, there are differences. Australia today has a diverse population with differences in culture, race, religion and linguistics. On the other hand, the then British states were diverse in terms of geographical location, size, and economic activity. This is a clear indication that federalism was created for a totally different purpose from those which are commonly cited. Democracy is also undermined by wearing away of the principal mechanism for the democratic control of governments by parliaments, by the people. The notion of democracy through increased participation can be challenged. Australian constitution guarantees equal state representation in the senate. However, more that 60% of the population resides in Victoria and New South Wales thus in confers more powers to smaller states. Despite this, it is difficult to completely assert that Australian federalism has not enhanced democracy. This is because the system has implemented multiple tiers of the government which ensures that everyone is represented. Australians are represented by three levels of government; local, state and federal. The problem with this model is that the multiple tiers of government can hinder democratic process and the abilities of the government to enact beneficial policies. The multiple tires of government decrease accountability and responsibility between state and federal government. The state government will blame the federal government and the federal government will also point a finger on the state government for unaccomplished activities. This affects the citizen’s voting decision and this is a threat to the federalism system (Hollander, R., 2009). The other support that Australia federalism is not federal in nature is that it the federalism is conflicting with the principles of a responsible government. This is because the purpose of a responsible government is “to unify and consolidate political powers” while that of federalism is to decentralize powers. A close analysis of these two shows that they are opposing each other in that one is trying to distribute powers while the other promotes consolidation of powers into one sovereign power. However, in Australia, the responsible parliament government has been integrated into the federal system (Doeker, 2012). It is been argued that the advantages of the commonwealth government continue to complement those of the state government and thus the federal system is far from obsolete. The unitary economy, national defense force, and the ability of Australia to engage in international initiatives reflect the benefits of working as a united country and not as small colonies. These beneficial outcomes can still be achieved with the state government’s ability to govern areas such as environment, health, and education (Doeker, 2012). The state and the local governments are the victims of a federal system that doesn’t work. This is because although it may appear there is three tier of government working together, these two have much less power than people can imagine. S 109 of the constitution gives the federal government more power when the law is inconsistent with that of the state. Commonwealth provides the law based on subject matter and any state attempt to regulate part of that subject matter will conflict with the commonwealth and s 109 will render it invalid. The approach to s 109 has serious implications for the autonomy and effective power of states. A recent conflict arising from the inconsistency of laws was related to “award wages.” According to s 109 of the constitution, a federal award would prevail over an inconsistent state award. An example that illustrates this is the case of Clyde Engineering Co Ltd v Cowburn. In this case, the High Court held that the Forty-Four Hours Week Act (1992) was inconsistent with the Conciliation and Arbitration Act supported by the Federal award. They claimed that it attempted to alter the terms of the federal award. This decision rendered the State Act invalid (Fenna, 2012). Undemocratic feature Those who argue that Australian federalism system is democratic usually overlook the undemocratic feature. The undemocratic feature in this system is associated with its division into many electorates. This is means that a decision needs a majority of the majority to be qualified. For example, a party may get a majority of votes nationwide but does not get a majority in the parliament. This is equivalent t dividing the assembly into classes or unequal electorates. Although this is beneficial because it obstructs those who want majority votes for this own interest, it is still undemocratic in a way. The disadvantage with this is that it interferes with all changes even the positive ones. The prospective candidates must also campaign all over the country to gain a majority vote because they cannot rely on the support of those within his/her geographic location. Therefore they have to reach geographically disperse majority and this can be expensive for them (Summers, 2013). There is a contradiction between section 239A and s 240. Section 240 is a democratic electoral system which ensured that voters could freely choose between candidates. Section 239A of the constitution was designed to prevent people from undermining the electorate that the parliament had chosen. Conclusion This discussion is a proof enough that Australian federalism model is not working as required. However, it is important to note that there is no federal model which is perfect anywhere in the world. Just like any other federal system, Australian system has all essential features but it fails to conform to a convention federal state. The main problem with Australian model is a duplication of services. The problem occurs because Australia’s system of financing is inadequate. About 85 per cent of the revenue is given to the commonwealth while huge spending responsibility is bestowed on the states. In this case, commonwealth gives grants to state that are subject so many policy requirements. In other words, the commonwealth is controlling the state policy and this has resulted in a lack of accountability and each government blaming the other (Aroney, 2016). Commonwealth has also maintained a form of monopoly in tax collection and the states are left with minor taxes which continue to shrink. This means that commonwealth has adequate money to run their constitutional responsibilities while states have less for their own needs and this led to substantial transfers. Unlike other federations such as Germany where the government responsible for raising revenue is also responsible for its spending, Australian constitution does not contemplate this imbalance. The elaborate legislative schemes contribute to the complexity and distorted lines of accountability that characterize Australian federalism today ( Hinz, 2010). To be successful, Australian federalism must return to mutually beneficial form of collaborative federalism. References Aroney, N., 2016. Federalism and subsidiarity: principles and processes in the reform of the Australian Federation. Dixon, R. and Williams, G. eds., 2015. The High Court, the Constitution and Australian Politics. Cambridge University Press. Doeker, G., 2012. The treaty-making power in the Commonwealth of Australia. Springer. Fenna, A., 2012. Centralising dynamics in Australian federalism. Australian Journal of Politics & History, 58(4), pp.580-590. Follesdal, A., 2010. Federalism. Hinz, B., 2010. Australian federalism and school funding arrangements: An examination of competing models and recurrent critiques. Hollander, R., 2009. Rethinking overlap and duplication: federalism and environmental assessment in Australia. Publius: The Journal of Federalism, p.pjp028. Jones, S., 2008. Cooperative federalism?: The case of the ministerial council on education, employment, training and youth affairs. Australian Journal of Public Administration, 67(2), pp.161-172. Liberman, J., 2013. Plainly constitutional: the upholding of plain tobacco packaging by the High Court of Australia. American journal of law & medicine, 39(2-3), pp.361-381. O'Flynn, J. and Wanna, J. eds., 2008. Collaborative Governance: A new era of public policy in Australia?. ANU E Press. Saunders, C. and Foster, M., 2014. The Australian Federation: A story of the centralization of power. In Federalism and legal unification (pp. 87-102). Springer Netherlands. Sayers, A.M. and Banfield, A.C., 2013. The evolution of federalism and executive power in Canada and Australia. Federal dynamics. Continuity, change, and the varieties of federalism, pp.185-205. Sharma, R., 2008. The Australian perspective: Access, equity, quality, and accountability in higher education. New Directions for Institutional Research, 2008(S2), pp.43-53. Summers, J. and Lowe, J., 2013. The federal system. Government Politics in Australia, p.87. Ward, I. and Stewart, R.G., 2009. Politics one. Palgrave Macmillan Australia. Zines, L., 2008. The High Court and the Constitution. Federation Press. Read More