Clare Gregory

University

Macquarie University

Place (Rank)

6th Place

Year

2005

Introduction

To speak of federalism is to speak of tension, compromise, and competition. The story of federalism in Australia illustrates this tension: sustained as it is by conflicting centrifugal and centripetal forces; and caught as it is between loyalty to the past and the service of the present and future. This paper will analyse the centripetal influence of international laws and external pressures, and the centrifugal influence of internal diversity and the framework supporting such diversity in contemporary Australia and Canada. It will be seen that whilst contemporary Australia has clearly moved towards the centralisation of power in the federal government, and Canada towards a decentralised distribution of power, contrary to the intentions of the founders of both, nevertheless each retains its federal system. This is due to the ongoing, though perhaps not always visible, tension between centrifugal and centripetal forces that at once sustain, and threaten to dissolve, the federal system.

Essay

Centripetal and centifugal forces in Australia and Canada

 

Introduction

To speak of federalism is to speak of tension, compromise, and competition. The story of federalism in Australia illustrates this tension: sustained as it is by conflicting centrifugal and centripetal forces; and caught as it is between loyalty to the past and the service of the present and future. This paper will analyse the centripetal influence of international laws and external pressures, and the centrifugal influence of internal diversity and the framework supporting such diversity in contemporary Australia and Canada. It will be seen that whilst contemporary Australia has clearly moved towards the centralisation of power in the federal government, and Canada towards a decentralised distribution of power, contrary to the intentions of the founders of both, nevertheless each retains its federal system. This is due to the ongoing, though perhaps not always visible, tension between centrifugal and centripetal forces that at once sustain, and threaten to dissolve, the federal system.

Australia's centrifugal past

The establishment of a federal system of government in Australia in 1901 with only limited power vested in the central government[1] was achieved through the retainment of residual powers by the States under s 107, and by the vesting of concurrent, rather than exclusive, powers in the Commonwealth under s 51.[2] This division of powers provided for federal regulation of external affairs, defence, navigation, customs and immigration, and for postal and telegraphic services,[3] leaving under state control education, law and order, public works, transport, and the development of agriculture and industry.[4]  Various explanations have been advanced for why a centrifugal brand of federalism was initially adopted for the country. Economic pressures, heighened by the need to rebuild the country following the depression of the 1890s,[5] were a significant factor. The depression highlighted structural problems in the colonial economies. Moreover, the contraction of Australian credit abroad, trade recession,[6] and consequently the increased pressure in competing for export markets and the perceived need for free trade between the colonies were reasons for an economic union between the colonies. The strength of the colonial governments, and of separate colonial ties to England, the desire to appear as a unified nation for the limited purpose of relations with England,[7] and the great distance between colonies were all factors which affected the nature of the union formed in 1901.

Canada's centripetal past

At federation in British North America, on the other hand, the Dominion government, under s 91 was granted residual rights and power over certain subjects, whilst the Provincial legislatures were also given exclusive power over certain subjects under s 92.[8] This was to avoid coordinate federalism's conflict[9] and tension, and to establish strong national unity. Fear of domination by the United States, and the belief that state sovereignty in the United States had lead to secession movements[10] were factors which pushed British North America to establish a strong central government. The colonial spirit of expansion – into the North-West territories[11] – was another factor. Further, a strong central government was perceived as necessary to remove conflicts between english and french speaking groups, and to protect the interests of minorities.[12]

Contemporary Australia and Canada: Centripetal Forces

Globalisation and economic pressures, new political and social problems, judicial review, and changed international relations and conceptions of distance account for shifts in the centrifugal / centripetal balances of Australia and Canada.

A significant modern development which has impacted the relative power of, and relationship between, Federal and State or Provincial governments has been the increased role of international law in Australian and Canadian domestic law.[13] The treaty-making power which vests in the federal executive branch of government[14] has expanded the reach of federal government into areas traditionally reserved to the states. Human rights issues and environmental protection treaties and standards are the areas of most significant influence in recent years.[15] Environmental protection, for example, in both Canada[16] and Australia, does not fall within any head of power as intended at federation.

The Tasmanian Dam Case[17] has been considered the most significant blow to the sovereignty of the states in Australia in the history of federation. The separate judgments handed down in this case reveal something also of the dynamic and fragile nature of the balance struck at any one time between centrifugal and centripetal forces. Three different understandings of the nature of this balance were delivered in the judgments.

Historically, the Australian courts have distinguished Canadian precedent in this respect. An example of this is the way in which the courts distinguish the Labour Conventions Case [18]in the King v Burgess, Ex parte Henry,[19] stating that "the power includes, but also extends further than, the power assigned to the Parliament of the Dominion of Canada by s. 132 of the British North America Act."[20]

This centripetal force is fuelled by a perceived need for representation of Australia with a single voice in the international community, and to make agreements on a state to state level. This modern development is just one manifestation of a broader argument advanced in support of centralised federalism: the national unity argument. Indeed, this argument was used by Henry Parkes in his Tenterfield Oration in support of federation when he referred to the idea of 'national greatness'.[21]

In the realm international development, comparison with another state is particularly valuable. It can be seen that Canada's approach to the adoption of international standards in domestic law has been more collaborative than that of Australia. It has been contended by the Quebec government that the Canadian provinces have a treaty-making power concurrent to and independent of that of the federal government.[22] This claim is justified with reference to regional diversity and needs. In Canada, too, though, the international standing of the state of Canada has been used as a centripetal force in Canadian federalism. The intergovernmental consultations conducted in both do little to alter the power which vests in central authority with respect to external affairs.

Contemporary Australia and Canada: Centrifugal Forces

Diversity between different groups, whether with respect to religion, history, or ethnicity,[23] has been traditionally considered a principal centrifugal force in federal societies. It is in comparing federalism in Australia and Canada that the limitations of this explanation for federalism become evident, for such an understanding of federalism and of centrifugal forces does not adequately explain the continuation of a federal system in contemporary Australia: a country where diversity is not regionally grouped[24] along state border lines, but rather permeates society as a whole. This sharp contrast between Australia and Canada: the distinct lack of regional diversity in the former, and the centrality of it in the latter,[25] gives great value to a comparison of federalism in these two otherwise closely related countries: both having responsible parliamentary government, and both constitutional monarchies.

Another less visible, yet perhaps more significant, centrifugal force is the self-sustaining and renewing capacity of governments once established. The continued existence of the Australian States in the face of calls that they are economically inefficient,[26] and cripple Australia internationally[27] is testimony to this institutional resilience. The adversarial nature of the federal system contributes to, rather than threatens, the continued existence of two levels of government. In support of this centrifugal force is concern for the preservation of democracy. In Canada, this finds its voice in calls for the protection of cultural and linguistic minority groups. In Australia, the States are not associated with such group specific identities, yet democratic values nevertheless justify a decentralised federalism. This is due to the inherent value of increased political participation generated by the existence of several levels of government.[28]

Conclusion

The forces of unity and diversity, of centralisation and decentralisation, whilst in apposition to each other are the foundation of a system of government flexible enough to adapt to societies as different and dynamic as Australia and Canada, and which provides a degree of stability and control on the power of government otherwise not possible. The new challenges to federalism in contemporary society constitute nothing more than new manifestations of centrifugal and centripetal forces and values forever at play within a federal system.

 

Bibliography

Anderson, George, "Canadian Federalism and Foreign Policy" (2001) 27 Canada-United States Law Journal 45.

Beckton, Clare, and Mackay, A Wayne, Recurring Issues in Canadian Federalism (Toronto: University of Toronto Press, 1986)

Cairns, Alan, "The Governments and Societies of Canadian Federalism" (1977) 10 Canadian Journal of Political Science 693.

Gageler, Stephen, "Foundations of Australian Federalism" (1987) 17 Federal Law Review 162.

Galligan, Brian (ed.), Australian Federalism (Melbourne: Longman Cheshire, 1989).

Gilbert, Christopher D, Australian and Canadian Federalism 1867-1984: A Study of Judicial Techniques (Melbourne: Melbourne University Press, 1986).

Hodgins, Bruce W et al., Federalism in Canada and Australia: The Early Years (Canberra: Australian National University Press, 1978).

Irving, Helen (ed.), The Centenary Companion to Australian Federation (Melbourne: Cambridge University Press, 1999).

Livingston, William S, "A Note on the Nature of Federalism" (1952) 67(1) Political Science Quarterly 81.

Macintyre, Stuart, The Oxford History of Australia Volume 4: The Succeeding Age 1901-1942 (South Melbourne: Oxford University Press, 2004)

Martin, A W, "Economic Influences in the 'New Federation Movement'" (1953) 21 Historical Studies 64.

Painter, Martin, "Public Sector Reform, Intergovernmental Relations and the Future of Australian Federalism" (1998) 57(3) Australian Journal of Public Administration 52.

Proudhon, Pierre Joseph, The Principle of Federation (Toronto: Toronto University Press, 1979).

Sawer, Geoffrey, Modern Federalism (Carlton: Pitman Publishing, 1976).

Stack, Robert, "The Legal Geography of Expansion: Continental Space, Public Spheres, and Federalism in Australia and Canada" (2001) 39 Alberta Law Review 488.

Stevenson, Garth, Unfulfilled Union: Canadian Federalism and National Unity (Toronto: Gage Publishing Limited, 1979).

Trone, John, Federal Constitutions and International Relations (St Lucia: University of Queensland Press, 2001)

Attorney General for Canada v Attorney General for Ontario (Labour Conventions Case) [1937] AC 326.

Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1.

Koowarta v Bjelke-Petersen (1982) 153 CLR 168.

The King v Burgess, Ex parte Henry (1936) 55 CLR 608.

The Australian Constitution.

The British North America Act 1867.

The Constitution Act 1982.

 

[1] B W Hodgins, "The Plans of Mice and Men" in B W Hodgins et al., Federalism in Canada and Australia: The Early Years (Canberra: Australian National University Press, 1978), 3-6.

[2] The Australian Constitution.

[3] Macintyre S, The Oxford History of Australia Volume 4: The Succeeding Age 1901-1942 (South Melbourne: Oxford University Press, 2004), 77-78.

[4] Ibid, 78.

[5] A W Martin, "Economic Influences in the 'New Federation Movement'", (1953) 21 Historical Studies 64, 67.

[6] Ibid, 67.

[7] H Irving, The Centenary Companion to Australian Federation (Melbourne: Cambridge University Press, 1999), 7.

[8] The British North America Act 1867.

[9]  R Stack, "The Legal Geography of Expansion: Continental Space, Public Spheres, and Federalism in Australia and Canada", (2001) 39 Alberta Law Review 488, 490-494.

[10] G Stevenson, Unfulfilled Union: Canadian Federalism and National Unity (Toronto: Gage Publishing Limited, 1979), 58.

[11] Ibid, 58.

[12] R Stack, above n 9, 499-500.

[13] H Collins, "A Political Science Perspective", in B Galligan (ed.), Australian Federalism (Melbourne: Longman Cheshire, 1989), 185.

[14] J Trone, Federal Constitutions and International Relations (St Lucia, University of Queensland Press, 2001), 32.

[15] G Anderson, "Canadian Federalism and Foreign Policy" (2001) 27 Canada-United States Law Journal 45, 51-53.

[16] Ibid, 51.

[17] Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1.

[18] Attorney General for Canada v Attorney General for Ontario (Labour Conventions Case) [1937] AC 326.

[19] The King v Burgess, Ex parte Henry (1936) 55 CLR 608.

[20] Evatt and McTIernan JJ in The King v Burgess, Ex parte Henry (1936) 55 CLR 608.

[21] H Parkes, in H Irving, The Centenary Companion to Australian Federation (Melbourne: Cambridge University Press, 1999), 8.

[22] J Trone, above n 14, 39.

[23] W Livingston, "A Note on the Nature of Federalism" (1952) 67 Political Science Quarterly 2, 2-6.

[24] B Galligan, "A Political Science Perspective", in B Galligan (ed.), Australian Federalism (Melbourne: Longman Cheshire, 1989), 45.

[25] A W MacKay and C Beckton, "Institutional and Constitutional Arrangements: An Overview", in C Beckton and A W MacKay (eds.), Recurring Issues in Canadian Federalism (Toronto: Toronto University Press, 1986), 3-8.

[26] M Painter, "Public Sector Reform, Intergovernmental Relations and the Future of Australian Federalism", (1998) 57(3) Australian Journal of Public Administration 52, 53.

[27] For example, Murphy J's comment in Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 241.

[28] B Galligan, above n 24, 62-63.