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The Use of the Principle of Subsidiarity in the Reformation of Australia’S Federal System of Government

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The Use of the Principle of Subsidiarity in the Reformation of Australia’S Federal System of Government School of Business Law and Taxation The Use of the Principle of Subsidiarity in the Reformation of Australia’s Federal System of Government Michelle Evans This thesis is presented for the Degree of Doctor of Philosophy of Curtin University May 2012 Declaration To the best of my knowledge and belief this thesis contains no material previously published by any other person except where due acknowledgment has been made. This thesis contains no material which has been accepted for the award of any other degree or diploma in any university. Signature: …………………………………………. Date: ………………………... 2 ACKNOWLEDGMENTS Writing this thesis whilst working full time, changing jobs and having a small child has been one of the most difficult, and at the same time rewarding, tasks I have ever undertaken. It would not have been possible without the help and support of many people who I would like to sincerely thank. I would like to thank Professor Greg Craven for getting me started. Although our supervisor-student relationship was short-lived due to Professor Craven taking up the Vice-Chancellor’s position at the Australian Catholic University, Greg saying ‘yes’ to supervising me was a huge inspiration and motivation. Professor Pauline Sadler has been my supervisor from the very beginning and has stayed with me, providing guidance, support and motivation throughout this project. She has also been a wonderful friend and mentor and I could not have written this thesis without her. I would also like to thank Professor Joan Squelch, who came on board as a co-supervisor for a short time before taking up the position of Deputy Pro Vice-Chancellor at Curtin University, for her thoughtful and very helpful comments on several chapters of this thesis. I would like to acknowledge the very significant role and support of Professor Gabriël A. Moens, my co-supervisor, who has watched, encouraged and guided my career for many years. It would not have been possible to complete this thesis without his mentorship and guidance. Many people have offered words of advice, encouragement and support that have helped me to complete this thesis. In this regard I would like to particularly acknowledge my friend and colleague Augusto Zimmermann for our many talks about federalism and subsidiarity, and his helpful research suggestions. Huge thanks are due to Dr Christopher N Kendall, Robyn Honey, Sarah Withnall, Bruce Bott, Haydn Rigby, Natalie Wilkie, Professor Jürgen Bröhmer, Associate Professor Verena Marshall, Lorraine Finlay, Linda Murdoch, Professor Nicholas Aroney, Robert Mitchell SC, Lisa Tovey, and Jin Her (Roy) Hee who have all encouraged me with thoughtful advice and who have listened to the trials and tribulations of my 3 thesis writing. Also, thanks to my uncle, Ken Spivey, for encouraging me in my scholarship since I was a small child. I hope I have done you proud. I would also like to thank the many constitutional law students I have had over the years, at both the University of Notre Dame Australia (Fremantle) and Murdoch University who have enthusiastically engaged with my teaching of constitutional law and from whom I have also learnt a great deal. Finally, I would like to thank my family from the bottom of my heart. My father, Professor Philip Evans for being my inspiration, my mother Diane for her support and ongoing help with my family responsibilities, and my husband Chris who believes I can do anything. I would like to dedicate this thesis to my little boy who was born one month after I enrolled and who has flourished and grown during the writing of this thesis into a beautiful and vivacious four-year-old. Michelle Evans May 2012 Perth, Western Australia 4 TABLE OF CONTENTS ACKNOWLEDGMENTS ......................................................................................... 3 TABLE OF CONTENTS ........................................................................................... 5 ABSTRACT .............................................................................................................. 10 CHAPTER 1: INTRODUCTION ........................................................................... 11 I BACKGROUND................................................................................................. 11 II FEDERALIST ASSUMPTIONS ..................................................................... 17 III RESEARCH QUESTIONS AND OBJECTIVES ........................................ 20 IV CHAPTER DIVISION .................................................................................... 21 A Chapter Breakdown ........................................................................................ 22 1 Chapter 2: Introduction to Federal Theory and the Philosophy Behind Federalism....................................................................................................... 22 2 Chapter 3: Introduction to the Principle of Subsidiarity: From Catholic Social Theory to European Union Law ........................................................... 22 3 Chapter 4: A Conceptual Comparison of Federal Theory and Subsidiarity 22 4 Chapter 5: Why Australian Federalism is in Need of Reform (Part 1): An Overview of Constitutional Interpretation by the High Court Leading up to the Engineers Case ................................................................................................ 23 5 Chapter 6: Why Australian Federalism is in Need of Reform (Part 2): The Demise of State Financial and Legislative Powers after the Engineers Case 24 6 Chapter 7: How Can the Principle of Subsidiarity be Implemented to Enhance Australian Federalism? .................................................................... 24 7 Chapter 8: Conclusion ................................................................................. 25 V SIGNIFICANCE ............................................................................................... 25 VI RESEARCH METHODS ............................................................................... 25 CHAPTER 2: INTRODUCTION TO FEDERAL THEORY AND THE PHILOSOPHY BEHIND FEDERALISM ............................................................. 26 I INTRODUCTION .............................................................................................. 26 II DEFINING FEDERALISM: WHAT IS A FEDERAL SYSTEM OF GOVERNMENT? ................................................................................................. 30 III DEFINING FEDERALISM: THREE KEY TEXTS REFERRED TO BY FRAMERS ............................................................................................................. 34 A James Bryce: The American Commonwealth ............................................. 34 1 A Written Constitution that is Difficult to Alter ........................................... 35 2 Division of Power Between Federal and State Governments ...................... 35 3 Sovereignty of the States .............................................................................. 37 5 4 Independent Judicial Guardian of the Constitution ..................................... 39 B Edward A Freeman: History of Federal Government in Greece and Italy40 1 A Written Constitution that is Difficult to Alter ........................................... 41 2 Division of Power between Federal and State Governments....................... 41 3 Sovereignty of the States .............................................................................. 43 4 Independent Judicial Guardian of the Constitution ..................................... 44 C Alexander Hamilton, James Madison and John Jay: The Federalist Papers ............................................................................................................................. 44 1 A Written Constitution that is Difficult to Alter ........................................... 45 2 Division of Power Between Federal and State Governments ...................... 46 3 Sovereignty of the States .............................................................................. 47 4 Independent Judicial Guardian of the Constitution ..................................... 48 IV DEFINING FEDERALISM: ADDITIONAL THEORETICAL COMMENTARY .................................................................................................. 48 A A Written Constitution that is Difficult to Alter ............................................ 49 B Division of Power Between Federal and State Governments ....................... 50 C Sovereignty of the States ................................................................................. 53 D Independent Judicial Guardian of the Constitution ..................................... 56 V CONDITIONS REQUIRED TO ESTABLISH A FEDERAL SYSTEM OF GOVERNMENT ................................................................................................... 58 A Desire .............................................................................................................. 58 B Capacity ........................................................................................................... 61 C Equality ........................................................................................................... 62 D Established Government ................................................................................. 63 E Financial Viability .......................................................................................... 64 VI THE FEDERAL NATURE OF THE COMMONWEALTH CONSTITUTION ................................................................................................
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