The Federal System in Australia Part 3
Other High Court Interpretations
As stated before, High Court interpretations of the Constitution have caused many imbalances in the relationship between the levels of government. An example is the famous Engineers’ Case, the Amalgamated Society of Engineers v. Adelaide Steamship Co. (1920) which gave the Federal Government the power to legislate in industrial relations, especially when concerning s. 51 (xxxv).
Another instance is the Tasmanian Dam case, Commonwealth v. Tasmania (1983), where it interpreted “external affairs” in s. 51 (xxix) quite broadly, in essence, it means that any international treaty or accord ratified by the Commonwealth is binding upon the States. Thus, Australia’s ratification of UNESCO’s World Heritage Program meant that Tasmania could not build a dam in the Heritage-listed Franklin River area.
Although, in theory, alterations to the Constitution may change the balance of power between States and the Commonwealth, in practice, it is rarely done. For a referendum to pass, it requires a double majority, and if the States campaign against it, as they would invariably do if it concerns a loss of their power, it is unlikely to pass. The only referendum that may have come close is the Social Services Referendum (1946), which added s. 51 (xxiiiA) and gave the Commonwealth the power to legislate in various pensions and allowances.
The third level of government, local governments, is not mentioned in the Constitution, and so they are residual powers; the States control their funding. Hence, there have been pushes and referendums in the past to recognise local governments in the Constitution, including a 2013 referendum during the upcoming election. Recognising local governments would mean that the Federal Government could exercise power over the local councils directly.
As Dr Dennis Jensen, Federal MP for Tangney, wrote on his website (Editor’s note: here), it is merely a tactic of the Commonwealth to increase their own power and that of the local councils at the expense of the States’ own power and relevance. The 1974 and 1988 referendums failed miserably, with 47% and one state, and 33% and no states, respectively.
(Editor’s note: at the time of writing, the 2013 referendum on local governments was still going ahead. After Rudd took over from Gillard, he moved forward the date of the election so the referendum could not be put to the people. After the Coalition won the election, they decided not to continue with it.)
The Australian Constitution stipulates that State Governments and Constitutions shall remain independent. However, there are exclusive powers over which the Federal Government is the sole legislator, whilst concurrent powers are shared between the two levels, and residual powers are those powers that are not mentioned, and are the State’s responsibility.
The Constitution also states how funds are to be raised and distributed among the levels of government, whilst various High Court cases have interpreted the Constitution in regards to the relationship between the States and the Federal Government.
This relationship is ever changing, illustrated by how interpretations, referendums and other factors continually change the balance of power, but always favouring the central system. Thus, the federal system operates by attempting to keep a balance between the two levels, and by outlining what one can or cannot do in the Constitution and in constitutional interpretations. In spite of this, the Commonwealth is increasingly becoming more powerful, to the detriment of their State counterparts.