Federalism Flashcards
Types of power included in federalism
Legislative power and financial power
Sovereignty
Supreme power to govern
Federalism
Division of sovereignty
Federal balance of power
How sovereignty is divided
Undivided sovereignty
Present in unitary systems with one central government such as the UK and NZ
Australia’s federal system
Purpose of constitution was the create a federal system (outline how power was divided between the six colonies and newly created federal government), Division of power related to both financial and legislative powers of the Commonwealth and States, Founding fathers intended Australia to be coordinate (started) or cooperative however overtime it has become more coercive
Coordinate federalism
Each level of government is relatively autonomous within its own sphere of influence
Cooperative federalism
Even balance of power between central and regional governments, substantial cooperation, demonstrated in national cabinet
Coercive federalism
Strong central government
Exclusive powers
Power which may only be exercised by the Commonwealth Parliament, S90- customs and excise duties, S52- Commonwealth public service and the seat of federal parliament
Concurrent powers
Lawmaking powers over which both the Commonwealth parliament and the State parliaments share jurisdiction, S51 (ii)- taxation, S51 (xxi)- marriage, S109- Commonwealth law prevails over states to the extent of any inconsistency
Residual powers
Law making powers left with the states at the time of federation that aren’t listed in the constitution, S107- every power of the colonies remain with them unless otherwise specified in the constitution (saving powers of state parliaments)
Financial powers- s51 (ii)
Taxation, states also raise taxes under this power (exception of customs, bounties and excises under s90)
Financial powers- s87
Required the Commonwealth to pay the States 75% surplus revenues from s90 for the first 10 years
Financial powers- s90
Customs bounties and excise, charge on goods crossing borders or forms of taxation applied to goods
Financial powers- s92
Requiring interstate trade to be absolutely free
Financial powers- s96
Commonwealth can determine the terms and conditions of the grants it makes to the states
Cases do to with changing the balance in financial powers
Uniform tax case (1942)- commonwealth receiving income tax which is 57% of Australia’s tax, states challenged but ruling favoured the commonwealth, Ha and Hammond V NSW (1997)- defined “what is excise”, Cole and Whitfield (1998)- restriction on small lobsters was found to go against s92 as it was limiting trade of South Australian lobsters, Betfair (2008)- argued that it went against s92 for WA residents to bet on Tasmanian sports
Vertical fiscal imbalance
When the expenditure of a level of government doesn’t correspond with its own sources of revenue, Federal government having excess revenue but the states having a deficit
Horizontal fiscal equalisation aim and calculation
Aim is to ensure all Australians enjoy the same standards, whether their state of residence is richer or poorer, Commonwealth Grants Commissions calculates the size of grants to the states based on how much money each state needs to provide a level of government services to their citizens equal to other states
Horizontal fiscal imbalance in the States
WA currently receives 70c back for every $1 under the distribution of the GST by the grants commission, States with low fiscal capacities are raised to the average fiscal capacity of states, All states are raised to the capacity of the fiscally strongest (currently WA), Remaining GST revenue is distributed to all states on an equal per capita basis
How federal balance can be changed
Referendums (minimal impact)- unlikely to pass if it gives the government/Commonwealth lots of power, Voluntary referral powers and unchallenged legislation (minimal impact)- terrorism, family law (referred by every state except WA), Cooperative arrangements (increasing impact)- national disability scheme, Financial power (major impact), High court judgements (Major impact)- greatest agent of constitutional change
Cases to do with legislative power changing balance
Peterwald’s case (1904)- s90, Railway servants case (1906)- s51 (xxxv), Engineers case (1920)- s51 (xxxv), Koowarta (1982)- s51 (xxix), Tasmanian dams (1983)- s51 (xxix), Workchoices (2006)- s51 (xx)
Referral powers
Section 51 (xxxvii)- affects only the referring state, Rare as states are protective of their powers, Criminal law powers in relation to the crime of terrorism were referred in 2002, Family law powers were referred between 1986-1990 (except WA)
National cabinet
Formed as an emergency federal forum to meet the challenge of COVID-19, Composed of the PM, premiers of States and Chief Ministers of Territories, Had an advantage of COAG as they could meet frequently (met weekly) and make rapid decisions, Showed the significance of States power- opening borders, elective surgery restrictions, now meet around every 2 months
COAG
Peak ‘ministerial council’ of the federation, ‘Ministerial council’- PM, state Premiers, Territory chief ministers, president of the local government authority, Meets regularly to debate, plan and monitor programs that are jointly administered by the Commonwealth and States/territories, met twice a year
