Is Federation a Benefit or Defect to Australia?

During 2001 Australia celebrated its century as a federation. Evaluate the apparent benefits and defects of this constitutional arrangement for Australia.

Federation is the creation of a nation by uniting previously separated states, which will retain some powers of self-government but will also give some powers to a national government. In Australia's case, federation began in 1901, after Australia was formed from six colonies: Western Australia, NSW, Victoria, Tasmania, Queensland and South Australia. Each state has its own State government and the National government is known as the Commonwealth of Australia. The Founding Fathers of Australia's Constitution incorporated several theories and other federal models, and each factor caused Australia to either benefit or defected by Federation. Examples of the theories and federal models are: the United States, Canadian and Swiss Constitutions, Liberalism, Democracy, Washminster System and the 'separation of powers'.

The belief of the 'separation of powers' comes from the French political thinker Montesquieu, where the legislative, executive and judiciary are held at separate institutions and the powers are divided across society to create 'checks and balances'. This would stop an individual or group from abusing their political power. Allowing no one to abuse their power can be seen as a benefit; however, the separation of power has also caused defects of the constitutional arrangement for Australia. Examples are: there is "over government" and confusion as there are too many politicians, divided regulations and laws, and unclear lines of political responsibility which weakens responsibility. Also, the division of powers reduces Australia's ability to meet national changes especially in new policies such as environment.

Liberalism emphasizes the importance of individuals in society, and its views are that the liberties of citizens such as free speech and property rights would be protected by law. Citizen's rights such as free speech today are seen as a benefit of federation. In the United States Constitution, citizen's rights were explained through the conventions of the constitution, whereas, in Australia it is matters of common and statute law, citizen's rights can be found through the Rule of Law. The Rule of Law keeps society together in a peaceful coexistence; everyone is equal and equally protected, and no one is above the law. Examples of the rules from the Rule of Law are:

* No one should be goaled unless found guilty by a Judge or magistrate.

* Everyone in society is to be subjected to the law equally--no one is above the law.

* The governments should not be arbitrary.

The Rule of Law can be seen as a benefit of federation to the Australian people, as it protects the citizens from discrimination, unfairness, and they have their rights of freedom of speech. Another belief that can be seen as a benefit of federation in Australia, is the democratic belief, as all citizens are eligible to vote which involves more of 'the people' in political decisions.

In the United States Constitution, the belief of the division of powers is done so between the central and state governments. The National governments have specific powers whilst the State governments have wider residual powers, and this was incorporated into the Australian Constitution by the Founding Fathers. However, this can be seen as a defect of federation as the National government has leverage over the State governments through its exclusive power of customs and excise duties. Since 1901 the authority of the Commonwealth has grown significantly. Under the Constitution the Commonwealth collects customs and excise duties, and section 87 gave the Commonwealth authority, after 10 years, to determine how the excess funds would be distributed to the States. Since WWII the Commonwealth has also organized income tax collection. From 1942 the States gave up the collection of income taxes in return for increased grants. Grants to the states are a means by which the Commonwealth can influence the state government policies. The grants must be spent in the areas set by the Commonwealth which gives it influence over the states residual powers.

Another federal model the Founding Fathers of Australia's Constitution incorporated is the Canadian Constitution, the first 'Washminster Model', combining federalism with the British Westminster System. Features of the Washminster Model were:

* Preservation of colonies, limiting the government to 'national powers' such as defence.

* A national common market with external customs collected by the government.

* House of Representatives and the Senate.

* Governor General, the Queen's Representative.

* Federal High Court as the superior Australian Court.

The last two points can be seen as a defect of federation from some views.

The Constitution gives the executive power to the Queen and her representative, the Governor General, to maintain the political system and its processes to keep the law effective. Examples of the role the Governor General has are:

* Commander in Chief of the Armed Forces

* Appoints Prime Minister and other Ministers of State

* Can dissolve both the Senate and House of Representatives

* Appoints the Justices of the High Court

However, the Governor Generals powers were not intended to be taken literally, and were expected, under normal conditions, to take advice from the Prime Minister. However, the Governor General has reserve powers under section 64 in the Constitution which enable the Governor General to exercise political powers in political crisis. An example in Australia is the dismissal of Whitlam Labour Government by the Governor General, Sir John Kerr in 1975. The key reserve power is in section 64 and provides the Governor General power to appoint or dismiss the Prime Minister and other Ministers of the State.

The High Court was formed

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