Australia’s Federal System Is in Need of Reform

NB: We do not resell your papers. Upon ordering, we do an original paper exclusively for you.

NB: All your data is kept safe from the public.

This paper seeks to analyze and discuss whether Australia’s federal system needs reform. A federal system presupposes the independence of each state while allowing the federal government to be the final ruler above certain state decisions. A change if any would seem to presuppose making the structure of government more centralist, hence giving more power to the central government. Viewed in this context, this paper will try to evaluate the situation of Australia if such is change is necessary.

If one will try to trace the history of Australia, one may find that it has been the federalism structure that has been the focus for reform. There have been referenda that have been conducted in the past and that from about forty-two (42) referenda about more than one-half have proposed a change to the structure of the Australian Constitution. One recorded evidence of strong desire to prove about moves for reform in the structure includes that Gough Whitlam making his famous criticism in 1957, that the Australian Labor Party (ALP) ‘has been handicapped… by a Constitution framed in such a way as to make it difficult to carry out Labor objectives.’ (‘Chifley Memorial Lecture’,1957)

As to what has caused Gough Whitlam to have made such comment must have a basis in fact and law. First, it would appear that one part of the Australian system that has been clamoring for constitutional change appears to be coming from the ALP. Such or attempts or moves for change from the ALP are not therefore surprising since the party has the interest to clamor for change as the party believes it.

To argue for a change of structure would however seem to change the foundations of the house under which the building was built and it could connote changing the very philosophy of the original framers of the Constitution and substituting what might have been felt as applicable to the present. The possibility of such must be viewed therefore on the practical side on whether there are compelling reasons to do so based on the activities of the present institution of the Australian present system of government. It could be observed that it is the federalism (Warhurst, 2004) structure that is the least rigid part of the Constitution. One factor that reinforces the present strength of the current constitution which has been there for a very long period already appear to be coming from Australia’s High Court interpretation which has made broad construction to a variety of federal powers such as external affairs, corporations, executive power (Byrnes, A. and Charleszvorth, H.,1985), and the appropriations power. This is believed to “have enabled Commonwealth Governments more easily to undertake the programs of national, social and economic reform for which they had earlier sought authority at referendums.” (Leslie Zines, n.d.)

The above means that the High Court reinforces what is old and what has been written. In any democratic form of government, the judiciary is the most conservative of the different departments as the court normally works under the principle of ruling based on precedents. If there are moves to change the constitution, the imitative will most probably come from the executive branch of government since it’s the executive who may feel limited by the constitution. The ALP to be at the helm therefore for constitutional change is expected since political parties see change as important for the growth of the nation from its past. Political parties are where alternative programs of government are made. Thus groups wanting reforms may have a basis to find fault for the judiciary. This reality in the judicial system seems to be best illustrated in a recent book by Neville Wran: ‘If you want real social change, let me appoint the judges.'(Fia Cumming, 1991). It may be argued however that appointing the judges may not affect the needed change because judges are program to interpret based on the rule of precedent, hence their view of the law is most probably conservative.

This bias against the court reinforcing the effectiveness of the present federal system in Australia is not without basis. This could be found in the cases of an intergovernmental agreement that Australian laws appear to allow. These agreements are noted to allow court cases to move freely between federal and state courts (Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). For observers, this has the effect of extending state jurisdiction in Australia’s coastal zone (Coastal Waters (State Powers) Act 1980 (Cth), and Coastal Waters (State Titles) Act 1980 (Cth)). These powers of the courts in making the ruling appear to disturb some in the context of the judiciary (O’Flynn, J.,2004) as the third branch of government trying to cause the establishment of a national corporations law (Corporations Act 1989 (Cth)).

It would seem there is the difficulty of changing the structure from federalism as seen in court decisions and a result of defeats of prior attempts to do so. This may indicate that the pressure for change to the federalism structure may have lessened, but observers say that the need for reform has not disappeared. Some of the issues that may merit a change in the constitution as indicated in the presence of general agreement on all sides and levels of politics that the taxing powers of state Parliaments needing clarification. This proposal is of course intended to prevent states from resorting to convoluted schemes to tax cigarettes and liquor. This would therefore define the boundaries of rights of states and have been a perceived benefit for the Federal Parliament, in the view of the clarified or extended its powers of the Parliament’s law-making power on issues like communications, family law, nuclear development, intellectual property, and industrial relations (Constitutional Commission Report, Chs 10 and 11). The proposed reform may not need a rewriting the federal system in any radically different way, by making it more centralist such reforms would confirmation of the existence of an existing federal arrangement that the Australians now have. The other side of the coin may however argue to just do it by ordinary legislation. As a counterargument, the Parliament may pass such a law but they may also abolish the same law under the present constitution, hence placing the necessary safeguard via the constitution may accomplish the purpose. This is based on the premise that from the many experience cases of federal constitutional difficulties were an aspect in costly conflicts under Australian experience. Such experience includes the settlement of de facto marital disputes, corporate regulation, integrated regulation of media, and many other things that could cause problems.

Although the proposed change may not touch on the structure of the constitution the same issues may be said to be addressing the concern of the present and future generations. On this basis, it may be argued that Australia, like any other nation, does not currently have a perfect Constitution. Its democracy may be stable; its Constitution may have survived the wars and even an economic depression. Such a test could not be conclusive proof that said fundamental law is already foolproof. There must be a basis therefore to take with care the statement of David Kemp, one of the perennial opponents constitutional change will not be ‘an irrelevant, time wasting and damaging distraction’ (Canberra Times, 14 April 1991). The drafters of the original constitution did not aim for an inflexible one, since there is a provision on the process for the change or amendment of the constitution. Such a process may be presumed to have been installed to prevent hasty actions of the Parliament or any of its political institutions to impose their will on other Australians when the idea for change would simply not work. There is also wisdom for change but there is also greater wisdom in putting a process to be followed in effecting constitutional change.

To conclude, Australian constitutional reform is important because the said constitution is a document that affects the lives of Australians. The fact that there have been attempts although there were unsuccessful is an indication that those who know that the Australians have a written constitution, the fact the many Australians do not know of its existence (Constitutional Commission Report, para 1.56.) is also a disturbing thing. This implies that if the people know it, they would be in a better position to say if they need to assert some of their powers. Australia may have managed very well with the present Constitution, but this does not hide the problems with its constitution. It may be argued that the Constitution is not only a document of the past and the present but also of the future. Hence since the old drafters may not have fully anticipated all the things that Australia could become, amending the same if possible would not be a crime. The present generation has more knowledge than those in the past and the present technology may be affording more chances to have more knowledge that may not be present then. To deny therefore the present generation to recast its vision of tomorrow would not be a dangerous thing for Australians considering the fact the present Constitution does provide a way where change or amendment could be had. The people then of present Australia, in their collective knowledge and wisdom may therefore change their Constitution if their basis to do so under the present set up. However, under present circumstances, Australia may just effect changes without changing its structure of federalism.

References

Byrnes, A. and Charleszvorth, H. (1985) Federalism and the International Legal Order: Recent Developments in Australia ; American Journal of International Law, Vol. 79.

Canberra Times, 14 April 1991, p 7.

‘Chifley Memorial Lecture’ (1957), reprinted in E G Whitlam, On Australia’s Constitution Widescope, 1977, p 16.

Coastal Waters (State Powers) Act 1980 (Cth), and Coastal Waters (State Titles).

Corporations Act 1989 (Cth), and the legislation in each state adopting the Commonwealth law, eg, Corporations (NSW) Act 1990 (NSW).

Fia Cumming, Mates; Five Champions of the Labor Right, Allen & Unwin, Sydney 1991.

Final Report of the Constitutional Commission, Australian Government Publishing Service, Canberra, 1988, , Chs 10 and 11.

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).

Leslie Zines (n.d.), ‘What the Courts have done to Australian Federalism’, also published in this volume of Papers on Parliament.

O’Flynn, J. (2004) Australian Capital Territory; The Australian Journal of Politics and History.

Warhurst, (2004) Patterns and Directions in Australian Politics over the Past Fifty Years; The Australian Journal of Politics and History, Vol. 50.

Click Here To Order Now!

Australia’s Federal System Is in Need of Reform

Do you need this or any other assignment done for you from scratch?

We have qualified writers to help you.

We assure you a quality paper that is 100% free from plagiarism and AI.

You can choose either format of your choice ( Apa, Mla, Havard, Chicago, or any other)