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Co-Operative Federalism in Australia – an Intellectual Resource for Europe? I by Justice R S French

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Co-Operative Federalism in Australia – an Intellectual Resource for Europe? I by Justice R S French Co-operative federalism in Australia – an intellectual resource for Europe? I by Justice R S French This two-part article is taken from a lecture given at the Institute of Advanced Legal Studies on February 22, 2006. INTRODUCTION Although operating on vastly different population sizes and he European Union has, in recent times, been across vastly different ranges of diversity, Europe and much pre-occupied with the adoption of a Australia may benefit by mutual consideration of the constitution. That pre-occupation may be seen as a approaches taken by each other in co-operative T arrangements between their Member States. response to the demands placed upon community governance by the increasing number of Member States. It Recognition of the benefits that Australia can derive may also be seen as an attempt to mitigate the perceived from a consideration of European approaches to the tension between effective and representative government challenge of community governance is reflected in the sometimes referred to as the democratic deficit. establishment of the National Europe Centre at the Australian National University in Canberra. In an address The rejection of the proposed new constitution by given in November 2005 at the ANU, Professor Simon referendum in France and Germany last year was a blow to Pronitt, Director of the Centre, remarked upon the utility the development of a document which could arguably be of drawing lessons from Europe and the European Union called a constitution as distinct from “an aggregate of relevant to Australia. The absence of any principle of treaties, case law and political convention” (Ford, J (2004), subsidiarity and the guarding by Australian States of their “The Age of Constitutions, Reflecting on the New Faith in traditional competencies, particularly in the area of Federal Constitutions” (National Europe Centre, Canberra criminal justice, were pointed out as obstacles to national Paper No 132, May 2004) citing G Puig (2003) “The coordination. European Constitution: Past and Future” (National Europe Centre, Canberra Paper No 115, November 2003)). And On the other hand in his 2001 Robert Schuman yet that aggregate of proto or pre-constitutional Lecture, Chris Patten, the European Commissioner for arrangements has delivered much. They might even boldly External Relations, pointed to the lessons that Europe be described as reflecting a species of co-operative could draw from the process by which the Australian federalism without a federation. Federation was created. He referred in particular to the way in which those who drove that process “… made sure In Australia, with a written constitution over a century all Australia’s people had an emotional bond to the old, the demands of the global market place and the constitution and government.” For Europe he saw a need challenges of trans-national crime and terrorism have to “… connect national political institutions to required national responses with the co-operative exercise supranational ones. To win over the hearts and minds of of powers divided between the polities of the federation. those alienated by the whole process.” (Patten, Some of these responses are specifically provided for by the “Sovereignty, democracy and constitutions: finding the constitution. Others are adopted by consensual right formula”, National Europe Centre Paper No 1, mechanisms for which the constitution does not Canberra April 19, 2001). specifically provide but which the parties to the federation Australia, although operating under a written are left free to use. All come under the general rubric of constitution as a fully fledged federation, has had to find co-operative federalism. co-operative mechanisms including delegations and The achievement of common or coordinated responses referrals of legislative power, intergovernmental by groups of polities, whether in federation or not, may agreements backing interlocking legislation, cooperation at attract similar solutions and give rise to similar problems. executive levels and in the application of judicial power. 9 Amicus Curiae Issue 65 May/June 2006 These are all things that Europeans may perhaps consider this case of the Commonwealth and the States. Because it in the evolution of their own community processes as, for involves divided powers the constitution gives Australia no its part, Australia may find inspiration in European standard gauge railway for good government across the solutions to problems requiring transnational cooperation. country and across the component parts of the federation. Against that background a consideration of co-operative To solve national problems which cannot be covered by the federalism in Australia is undertaken. legislative powers of either the Commonwealth or the States alone demands the coordinated and therefore co- FEDERATION AND COOPERATION operative use of governmental power from all units of the federation. This is co-operative federalism. Federation is and remains a widespread family of responses to the problem of combining people from Having so stated the general problem it is helpful to distinct political communities into viable national polities. consider briefly how the Australian federation came to be, The idea dates back at least to the 17th century and the how the constitution creates options for co-operative writings of Johannes Althusius. He proposed a theory of federalism and how co-operative arrangements can be federations in which the various kinds of human effected without any specific constitutional sanction. associations such as family, guild, province and state had its own function in allowing the living of a full life. He THE MAKING OF AUSTRALIA – A POTTED proposed that such associations in effect enter into HISTORY agreements, pactum foederis , to co-exist to their mutual In 1768 the Royal Society of London for the benefit ( Stanford Encyclopaedia of Philosophy, Improvement of Natural Knowledge engaged Captain http://plato.stanford.edu/entries/federalism at February James Cook to lead a scientific expedition to observe the 16, 2006). Many other political philosophers have transit of Venus across the Sun from a vantage point in considered the actual and desirable forms of association Tahiti. After the observations were made on June 3, 1768, that fall within the large family of federalism – see for Cook continued his voyage in search of a postulated example in the 18th and 19th centuries Montesquieu, The southern continent of Terra Australis. On that voyage Cook Spirit of the Laws (1748); Hume, Idea of a Perfect found New Zealand and, in April 1770, the south eastern Commonwealth (1752); Rousseau, A Lasting Peace through the coast of Australia. He mapped the eastern coast of Australia Federation of Europe (1761); Kant, On Perpetual Peace (1796); to Cape York and claimed it for the British Crown. Madison, Hamilton and Jay, The Federalist Pape rs; J S Mill, Following the loss of Britain’s American colonies, New Considerations of Representative Government (1861); PJ Proudhon, Du Principe Federatif (1863) South Wales was designated, in 1786, as a place to which British convicts might be transported (Declaration by The distinguished Australian constitutional scholar, Order in Council in 1786 pursuant to 24 Geo III c 56 Professor Geoffrey Sawer, writing in 1976, thought it a (1784)). On October 12, 1786 Arthur Phillip was futile exercise to try to define ‘federalism’. He considered commissioned by the British Government as Governor of it appropriate to speak of ‘the spectrum of federalism’– the proposed new colony of New South Wales. He arrived that is the range of reactions to the situation in which: at Sydney Cove on January 26, 1788 as the embodiment of the authority of the British Crown. It was the same year that 13 American colonies voted on the constitution of the …geographical distribution of the power to govern is desired United States. The fleet that accompanied Governor or has been achieved in a way giving the several governmental Phillip brought with it 717 convicts. Australia was, of units of the system some degree of security – some guarantee course, already occupied by Aboriginal people. However of continued existence as organisations and as holders of under the common law doctrine of the times they were not power (Sawer, Modern Federalism , Pitman (1976) at 2). recognised as having any legal rights or entitlements to the The words “co-operative federalism” have been used to land which they inhabited (enunciated 100 years later in describe a range of mechanisms to manage the conflict, Cooper v Stuart [1886] App Cas 286). This was a doctrine duplication, costs and inefficiencies that can arise in the not overturned until much later by the High Court in Mabo concept of federation. The importance of such v Queensland (No 2) (1992) 175 CLR 1 – a common law mechanisms to its effective functioning is obvious. judgment of great importance influenced by principles of international law. The distribution of power between Commonwealth and States set out in the Australian constitution reflects the One constitutional historian has written that European objectives of what Sawyer called “coordinate federalism”. Australia began as a gaol which covered half a continent. It involves the transferring of particular responsibilities and New South Wales covered all of Australia east of the 135th powers to the central government leaving the balance of meridian together with the adjacent islands (see McMinn, the regions. That distribution of power however brings A Constitutional History of Australia, Oxford University Press into existence the boundaries which define it. Limits are (1979) at 1). It was of course much more than a prison and 10 placed on the powers of the centre and of the regions, in much larger than was necessary to constitute a prison. In Amicus Curiae Issue 65 May/June 2006 1823 the first appointed local legislative body was created The coexistence of six colonies on the Australian continent and a Supreme Court established. In 1825 Tasmania was independent of each other in local policies, although united by carved out of New South Wales as a distinct colony.
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