Commonwealth of Australia

The constitutional distribution of powers and responsibilities in the Australian federation has proved to be exceptionally flexible. Originally conceived as a decentralized federation with the bulk of powers remaining in the hands of the states, in fact there has been a steady accretion of power to the Commonwealth government since shortly after federation in 1901. Although formal amendment of the constitution has been limited, changing interpretation by the High Court and the exercise of financial control by the Commonwealth have resulted in growing power and responsibility being exercised by the Commonwealth government. The Constitution of the Commonwealth of Australia came into force on 1 January 1901. The creation of “one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland” was the result of protracted negotiations throughout the 1890s between the framers of the Constitution, the colonial parliaments, the people, and, ultimately, the Imperial Parliament. The result was a constitution that brought together the two themes that have since dominated Australian governance: responsible government and federalism. These twin aspects of the Constitution captured Australia’s comfortable constitutional inheritance from the United Kingdom together with the less familiar constitutional solution of a federal system. The latter dimension was an obvious solution to the need to retain the political integrity of the Australian colonies. The system was informed by comparative constitutional research that focused primarily on the United States and, to a lesser degree, on Canada and Switzerland. As Cheryl Saunders has made clear, the “distinctive characteristic” of the Constitution’s growth, including the development of the powers and responsibilities within the federal structure since 1901, has been one of evolution not revolution. To achieve the union, the Constitution built on what was largely known, and what was needed, in 1901. Not surprisingly, the imperatives for federation defence, uniformity of economic policy, freedom of interstate trade, and uniformity in immigration policy form central parts of the constitutional compact. In a way that was consistent with their understanding of extant models, the framers trusted in parliamentary government and thus saw no need to adopt a bill of rights. Since federation, the development of the Constitution has continued along an evolutionary path. In the 105 years since the Constitution’s adoption, there have been only eight formal amendments, of which only three relate directly to the distribution of powers. This is a reflection of both the procedural difficulty to effect such change and the cautious approach with which Australian electors approach reform. Yet, notwithstanding the lack of formal change, the Constitution, inasmuch as it relates to the distribution of powers and responsibilities between the states and the Commonwealth, is now read in different terms than it was in 1901. Several factors account for this. The assertion of Australia’s legal sovereignty vis-à-vis Great Britain shows an incremental shift despite the formal links to the British monarch still in place. More significantly, it is the High Court, rather than formal constitutional amendment, that has presided over the significant centralization of authority in the hands of the Commonwealth. The role and function of the states have, consequently, reflected this change. Moreover, an overview of the drafting, management, and development of the distribution of powers and responsibilities in the Australian system is reflective of a federal system founded on concurrency. Despite the limited number of expressly exclusive powers of the Commonwealth, contemporary governance has seen the Commonwealth come to dominate the states. This has been the result of changing interpretation and national sentiment.