Federalism Australian Constitutionalism

Federalism is the tension between competing inclinations of decentralization and centralization, or the dynamic of centrifugal and centripetal forces. Regarding the history of the Australian Commonwealth, practitioners and academics make an implicit assumption about constitutional law that, if left uncontrolled, would result in the implosion or explosion that would destroy or harm the federal system. In Australia, maintaining the federal balance is seen as the High Court's responsibility. Therefore, has been described as exhibiting traits identified by Venn Dicey as a crucial federalism indicator (Patapan 2000 p. 131). According to Dicey, Federalism means Legalism and is defined as “the judiciary’s preeminence in a constitution.” However, Dicey's argument could be quite misleading in modern Australian Constitutional Law (Patapan 2000 p. 131). The current publicity provided to High Court’s role in the adjudication of the constitution and its description as the political institution tends to obscure the major effects of high court’s decisions. Through expansion of high court's Commonwealth’s legislative power interpretation and via slackening constraints on the government’s activities impacting interscale trade imposed; high court shows a rising tendency to leave final determinations and rulings on the federal balance to political process rather than the legal process (Forum of Federations 2017, p. 26). In responsible government institutions, the Australian Constitution recognizes the political process as a constitutional constraint mechanism that can operate in association to Federalism issues and that it is precedent of the political process in which an institution of the judicial review is assimilated.

Australian Constitutionalism

The Australian Constitution is made up of two traditions. It incorporates the United States tradition as well as the British ideology of a responsible government. It is undeniable that both traditions tend to create tension and are the causative factors of the Australian constitutional crisis. However, practitioners and scholars have ignored the apprehension caused by the traditions hence calling for further research on their effect (Patapan 2000 p. 134). According to Madison, the charter was developed to ensure that governments would act to enhance general welfare. Notably, the political philosophers of the 18th century developed three legal mechanisms to ensure that it achieves its intended objective. They include representative government, the division of government powers and judicial review.

Division of government powers was developed upon the first mechanism of a responsible government. Madison argued that there was the need to govern the ruling class governing others since they were also men. He explained that despite the factor that the government was dependent on people, experience had provided the reason to develop precautions (Tiernan 2008, p. 133). They were based on the creation of different government organs which had the power to check each other. The objective of power division in the government was to develop a state that was balanced (Patapan 2000, p. 137). In federated republics, the division of government powers could take place in two major forms. They include a vertical plane in which functions allocations between state and federal governments could see to that no government had the ability or potential of dominating its citizens. On the horizontal scale, diffusing the government’s power among the executive, judiciary and legislative would make further moderation of the government’s exercises.

With respect to the third mechanism, judicial review, the federal law was to be assigned the power and mandate to declare void an executive or legislative act that contravenes the constitution. It was vital to political philosophers and was emphatically asserted in early years of Supreme Court operations. Therefore, it was an efficient government department that would act as the constitutions’ interpreter. Its nature is described as the least hazardous to constitutional political rights that lack will or force but just a mere judgment (Hollander & Patapan 2007, p.284). In case the executive’s or legislative’s act validity was questioned, the main legal function was laying the Act besides the constitutional text, and in case conflict arises, it was to choose the people’s intention rather than agent’s intention.

In modern Australian, there are two features significant features of these mechanisms. To start with, with respect to the United States Constitution, federalism did not bring about legalism. Judicial review and federalism were associated, mechanisms that arose from a certain political process conception. The government was perceived as hazardous, and the participation of common people in politics was greatly feared. Hence, the title “The People” eradicated the government from the people and divided it amongst itself (Paris & Bell 2016, p. 153). The second pattern is the justification of judicial reviews that are continuously upheld in Australian High Court. The Judicial review is perceived as an appropriate technique of policing different sectors or arms of the governments mainly due to its politics from its nature, the judicial review was not similar to politics, and its judgments were made up of applications of predetermined constitutional standards before.

Constraints of Legalism

The ascendant technique of a high court to the judicial review with respect to Australian constitution was described as legalism. According to Chief Justice, Sir Owen Dixon, the perspective that total adhesiveness to legal thinking as the only way of maintaining confidence of every party in federal conflicts, is complete legalism. According to Owen, constitutional legalism is made up of two elements: The first associates the High Court’s function in federal systems. It entails an assumption that federalism mainly requires courts play a special role in determining any government’s action constitutionality. In other words, federalism entails the judicial constitutional predominance. The second element is associated to the way through which the high court does exercise the constitutional function. It is the judiciary’s role projection as primarily involving enforcement and interpretation of limitations on governments’ power demonstrated in the constitutional text.

There exist close interrelationship between the two elements. The second is derived from the first though it does provide its justification. The courts’ major function in creating lines to limit or control the government's power with respect to its interpretation of the constitutional power description does justify it as being the courts only chief function. The odd judicial institutional capacity to draw lines in accordance with the dimensions of complete and strict legalism does explain the court's predominant constitutional role (Gelber 2005, p. 311). Legalism has led to the persistence of constitutional arguments founded on an ideology that the law does set definite and substantives limits on government’s power and the judiciary can determine the substantive limits through an interpretative judgment process founded on the spirit and letter of the constitutional text (Fema 2012, p. 590). It also entails the notion that the high court must and can draw lines that limit the power of the government and through adhering to strict conceptual and analytical techniques of formalized legal arguments does provide the sole certain method of approaching political function that is sensitive. In accordance with history, it is evident that legalism failed to offer a safeguard to judicial decisions. According to doctrinal development, the high court’s constitutional interpretation does divide into two different periods. A major example is the Engineers Case. Despite the factor that the court does not accept that it does something extra than drawing lines via the legal interpretation process, the periods produced different conceptions of ways through which lines can be drawn.

Engineers Case

With respect to the Engineers case, a high court made destroyed the implied prohibitions doctrine to a reserved powers doctrine. According to the judgment, the implication process upon which the implied prohibition doctrine was based got criticism of being based on a vague individual conception of compact spirit as having led to uncertainty and entanglement and as having resulted. “To inconsistencies and divergences and pronounced decisions accumulate” The necessity principle was explained as “not referring to any definite standard that the individual opinion of the judge declaring it.”

Justices Isaacs and Higgins also depict the failure of legalism after they used the High court to push for perceptions emphasizing the Commonwealth supremacy and powers. Implicitly, Isaacs did criticize Graffiti’s perception after he alleged that constitutional interpretation was a matter of making interpretations of constitutions’ works only instead of analyzing the certain ideological perspective (Fenna, A, & Hollander 2013, p. 225). Practitioners have noticed that there are several wavering at the High Court in the Engineers case, the long-term impact of the interpretive approach has led to production the centralization of constitutional power in Common Wealth Parliament hands. The centralization of the constitutional power happened in association to various governmental obligations (Zines 2008, p 111). To illustrate, after the Concrete Pipes case, Commonwealth does have more responsibility on corporate activity. Additionally, most of the recent cases that have consistently hindered states options with respect to establishing taxes designed to provide the Commonwealth with significant revenue (Brett et al 2014, p. 165). On the other hand, the Work Choices Judgment in 2006 which endorsed the broad application and interpretation of corporation’s power has impacted the federal balance. The judgment led the states more vulnerable to federal intervention. Ijaiya shows that the conflict and vagueness hardships are faced when there is an attempt to shift formality towards policy as guiding constitutional line drawing principle. In such instances, there is always a line drawn between federal balance and federalism as offering a reason to prefer the restricted interpretation and analysis of commonwealth’s power and the national interest concept. Federalism has been described to be in constant search of meaning hence the federal balance is always in a constantly changing state. The freezing of federalism by the high court can only be justified by a concept that was derived away from the constitution. The expanded ideology of federalism does not address powers and how they may be held by states (Ijaiya 2017, p. 88). Therefore, a judge is always left to make his predilections or intuitions. Additionally, nationhood also does suffer some affliction. It should be noted that there lack single topic that cannot be present as a national concern matter provided that it generates vital government interests at Commonwealth level. Therefore, the inclusion of judges by some topics as well as exclusion of others is at worst an issue regarding personal; an impression and at best a query regarding degree.

A single doctrine is in which the federalism concept has resulted to vivid rule limiting of commonwealth powers offers probably the best example of indeterminacy in absence of the existing normative judgment. The decision by court affirmed Sir Owens’s statement in state banking case that: The Australian federal system efficacy rationally requires that “unless a given legislative power appears from its content, context or subject matter so to intend; it should not be understood as approving the commonwealth to make a Law aimed at restricting or controlling of nation in exercising its executive mandate. In whatever way, it could be expressed that an intention of this kind is to be plainly observed in the same constitutional frame (Appleby et al. 2012, p. 124). Scholars argue that the language in this statement does depict its weakness. According to Cohen Felix, logical rules are not capable of producing moral or legal doctrines. The legal doctrines alleging to be logic foundations are either unaware or not proud of their real parents (Appleby et al. 2012, p. 124). Hence, the federal system efficacy could probably be described as a demand doctrine Laid down in a statement only if an assumption is made that commonwealth government is rebels the interest of a state that, maintaining high executive autonomy levels is a vital part in federalism and there is no other constitutional mechanism constraint that provides sufficient protection against aggression by Commonwealth. The assumptions are aligned with animators concerns of constitutional framers of America, but they are only visible to Australian constitution frame only in the projection light of a certain political version.

Conclusion

In conclusion, it is vivid that the division of government powers was meant to protect the nation’s citizens from the employment by the leaders. As a result, political philosophers advocated the use of court reviews, to ensure that each government arm is fair and does not create acts or laws that are unfair to the society. However, the role of the court review seems to have an adverse impact. With respect to the Australian constitution, it is evident that the court has been provided with much power which often diluted government powers. It has also been associated with various adverse constitutional effects like the constitutional crisis. Legalism does wholly fail, which is due to the factor that it does not achieve the objectivity level upon which legality depends. A basic explanation of power or restraint to power has no ability to dictate drawing of lines in a specific concrete case. Neither would the basic concepts be neutrally derived from the federal system nature. According to Appleby & Aroney, an element of choice is always available (Appleby et al. 2012, p. 124). Additionally, High Courts advocated role is one that aims at reconciling potentially competing for constitutionalism forms identifiable within Australian Constitution. However, by doing so, it accepts institutional of a responsible government as being foundational. The judiciary would on this perspective accept that the primacy of federal political processes but should be prepared to quickly and effectively respond to its weaknesses.

References

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Ijaiya, H. O., 2017. Judicial approach to the interpretation of the constitutions in Nigeria, Australia, Canada and India.

Patapan, H., 2000. Judging democracy: the new politics of the High Court of Australia. Reshaping Australian institutions. Cambridge [England], Cambridge University Press.

Tiernan, A., 2008, 'The Council for the Australian Federation: A New Structure of Australian Federalism', Australian Journal of Public Administration, vol. 67, no. 2, pp. 122-134. Available from: 10.1111/j.1467-8500.2008.00576.x. [14 October 2017].

Zines, L., 2008. The High Court and the Constitution. Sydney, The Federation Press.