Australian federalism: A prospective assessment.
Domestically, globalization has led to the diminution of the economic roles of both the Commonwealth and the states by forcing the dismantling of state socialism and decreasing the Commonwealth's scope for managing the economy. At the same time, it has produced new and equally important roles for the Commonwealth. The Commonwealth has expanded responsibilities in managing regional economic relations and mediating the impact of global politics on domestic issues. Australia is well positioned to take advantage of global opportunities, but due to its size and location, it is vulnerable to risks from larger players dominating the world system for their advantage. While Australia has opened its markets to international competition and its trade is predominantly with Asian countries, it is not accepted as an Asian country in the region. In any case, there exists no Asian regional economic bloc that it might join.
The Commonwealth's abandonment of protective state policies and its partial redress of vertical fiscal imbalance with the new goods-and-services tax have altered relations with the states and the federal balance. Overall, the press for economic efficiency has preserved the policy dominance of the Commonwealth, but eroded its scope for national economic management. In addition, globalization has strengthened the legitimacy of Australia's federal institutions. The policy transformation of the Labor Party-Australian federalism's most strident critic-has reconciled the party with federal institutions; so, there remains no fundamental domestic threat to the future of Australian federalism. At the same time, growing global political forces advocating human and environmental rights, coupled with the willingness of the Australian judiciary to import international legal norms, have allowed international law to penetrate the Australian system in ways not characteristic of federal democracies that have their own domest ic bills of rights. Particularly in the areas of human rights and the rights of indigenous people, the Commonwealth has been forced to respond to an increasingly rights-conscious and rights-respecting population prepared to challenge its legislation for violating international norms. The international has become a significant third force in the dynamics of federal-state relations in Australia.
GLOBALIZATION AND AUSTRALIAN FEDERALISM
The main challenges for Australia in the next century are likely to come from global rather than domestic sources, mediated by the institutions of federal government. How federal arrangements might work and adapt to global influences depends largely on the ways in which politicians and bureaucrats maneuver and manage the system. Australia's federal institutions, however, are well equipped to mediate the impact of global political forces.
Globalization is not new to Australian government. From colonial origins as British settler societies, Australian politics and its institutions of governance and citizenship were shaped by, and responded to, global influences. Forged as a nation within the protective umbrella of the British Empire, Australia's role in foreign affairs was that of loyal dominion, eschewing an independent foreign and defense policy until the 1940s. The drift toward centralism in federal governance accelerated dramatically during the Second World War when the Curtin and Chifley Labor governments centralized the domestic economy for war purposes and redirected Australia's security dependency from Britain to the United States. Keynesian macroeconomics reinforced the national government's dominant role during the postwar decades. While the need for reliance on the United States has diminished with the ending of the Cold War, Australian foreign policy continues to be dominated by the search for security in the Pacific. (1)
The national government's role in mediating economic forces has likewise changed, with Australia's economy remaining heavily dependent on international investment and trade. Protective state policies that characterized the domestic political economy until the 1980s were a bold attempt at nation-building by boosting manufacturing industries in order to build up an industrial work force and increase population. (2) With the floating of the Australian dollar, the deregulation of Australian financial markets, and the phasing out of tariff protection, Australia switched to a market strategy in the late 1980s and early 1990s. This sea change in national policy was the consequence of applying neo-liberal theories whose resurgence has been a global phenomenon. (3) Australia's deliberate policy decision to scrap "protection all round" in favor of a deregulated national economy has been instrumental in exposing its domestic political economy to globalization.
Globalization has intensified international linkages in all spheres of human activity, especially those dependent on communications and market forces. Supplanting national governance with transnational regulatory regimes, globalization has eroded the independent sovereignty of nation-states. However, new communication technologies have enabled greater devolution of economic power to local governance structures and community associations. The twin forces of "glocalisation" (4) have moderated the power of the nation-state on one hand, and enhanced community and cosmopolitan citizenship on the other hand. Accordingly, the impact of globalization on federal systems is complex and contentious. (5) With the globalization of policy issues, the role of the national government can increase at the expense of the states. Yet, simultaneously, greater reliance on global markets diminishes the economic role of national governments. The impact of globalization on Australian federalism has been partly to reinforce centralis t tendencies, partly to stimulate cooperative federalist arrangements and the reform of intergovernmental relations, and partly to stimulate economic competitiveness between the states.
The emergence of transnational regional groupings of nations is one of the most potent developments in the global environment of federal countries. This is the case when federal countries are members of regional blocs, such as Germany in the European Union or Canada in the North American Free Trade Association. But it is also the case for outliers such as Australia because of its relative isolation as a smallish Western nation adjacent to Asia. The benefits of participating in regional economic groupings has seen an increased role for the Commonwealth. The Hawke-Keating governments sought greater involvement in Asia through its aggressive Asia Pacific Economic Cooperation initiative, while successive Commonwealth governments have made relations with Asian countries a priority. However, Australian trade with Asia remains constrained because there is no Asian regional economic bloc equivalent to the EU or NAFTA that Australia could join. Australia does have its own tight Australasian regional association with N ew Zealand, but that is too small to make a significant difference to its economic and strategic vulnerability. Nevertheless, Australasian regionalism is in part a quasi-federal innovation that might serve as a future model for asymmetric associations.
The regional organisation for Asia Pacific Economic Cooperation (APEC) (6) formed in 1989 is weak and diffuse. Aimed at developing regional free trade and economic cooperation, APEC includes countries from all around the Pacific, including Northeast Asia, Southeast Asia, Australasia, and the Americas. Despite the exaggerated expectations of Prime Minister Keating, who was one of its founders, (7) APEC languished with the economic crisis that struck Asian countries in 1997-1998, and the weakening of Indonesia in its transition to democracy. While the Howard Liberal National Party Coalition government elected in 1996 renewed Australia's commitment to close relations with the Asia Pacific, it changed the emphasis to "practical diplomacy" and bilateral relations with particular countries. (8) This replaced internationalism and multilateral relations preferred by the previous Keating and Hawke Labor governments (1983-1996) and epitomized in the policies pursued by their foreign minister, Gareth Evans. (9)
APEC has also been partly displaced by Asian rival groupings: ASEAN Plus Three (the three being Japan, China and Korea) and the Asia-Europe Meeting (ASEM) that first met in Bangkok in 1996. The older Association of Southeast Asian Nations (ASEAN) is more cohesive and highly valued by its members (10) and was extended in the 1990s to ten countries: Vietnam, Cambodia, Laos, and Burma were added to the group that included Indonesia, Thailand, The Philippines, Malaysia, Singapore, and Brunei. ASEM is a looser forum whose purpose is to promote cooperation between Asia and Europe. Nevertheless, it is a significant Asian initiative in regional definition, and in strengthening ties with Europe to balance the Asian Pacific links fostered by APEC. It includes the main ASEAN countries of Indonesia, Malaysia, The Philippines, Singapore, Brunei, Thailand, and Vietnam, as well as the three Northeast Asian giants, Japan, China, and South Korea. On the European side, it includes the 15 member-countries of the European Union plus the European Commission. ASEM is essentially a regular summit forum for leaders from Asia and Europe to discuss issues of common interest and to promote cultural and business interaction.
So far, Asian regionalism has been relatively weak, and this is likely to remain the case into the future. Japan is the dominant economy in the region but, unlike Germany in Europe, Japan does not support close regional integration like the EU. Australia is not a member of ASEAN and has been excluded from ASEM because of Malaysia's objections that it is not sufficiently an Asian country. For the time being at least, Australia is likely to remain outside these Asian forums, while APEC has become so large and diffuse that it is hardly a regional association at all. Australasian type free-trade associations might be extended to particular countries, as was suggested for Singapore at the APEC 2000 meeting. For the time being, however, regional integration is unlikely to provide Australia with an alternative to dealing directly with globalization.
In contrast, the regional association between Australia and New Zealand was formalized in the Australia/New Zealand Closer Economic Relations Trade Agreement (CER) of 1983. CER marked a commitment to create a genuine free-trade area, and was part of a wider plan to harmonize relations between the two highly similar countries. Perhaps more significant is the extensive people-to-people or social connection between two countries that have few restrictions on movement or settlement. Defense and strategic arrangements are similarly close, with New Zealand becoming more reliant upon Australia after its rift with the United States over banning nuclear ships from New Zealand's ports in the 1980s. Currently, there are calls for monetary union that would tie New Zealand more closely to Australian economic policy. Although New Zealand is unlikely to surrender its independent national status, its economic vulnerability and cultural homogeneity with Australia will probably ensure a strengthening of the association.
Australia and New Zealand have not formalized their close political association in an overarching treaty, rather they are joined by a variety of particular treaties, arrangements, and close cultural and popular ties. Essentially, the two nations maintain "an asymmetric pluralist association" that combines elements of transnational association with traditional forms of intergovernmental relations typical of federalism within a nation-state. (11) This Australasian association incorporates a variety of structures involving constitutional relations of three basic kinds. One is relations between nation-states, with New Zealand dealing with Australia like a smaller nation-state deals with a larger one. Another is the more routine federal kind where New Zealand participates in federal-state ministerial councils and agreements, such as mutual recognition of standards, more or less as another state of the Australian Commonwealth. A third involves shared or joint institutions, such as common commercial courts, that ma ke binding rulings applicable for both countries. Although the first type of nation-to-nation has been predominant in the past, aspects of the other two federal and joint types are now in place and will likely become more prevalent. Increasingly, Australasian governance will be a system of complex and diffuse power centers with an intermingling and overlapping of jurisdictional responsibilities and policy activity. The Australasian experiment shows that novel forms of integrated regionalism are possible through a variety of quasi-federal instruments in special circumstances.
Australia's political economy response to globalization from the late 1980s has been to abandon protective state policies and deregulate its domestic economy. This has entailed winding back tariffs, dismantling much of the "state socialism" that consisted of the extensive government provision of infrastructure and utilities, deregulating currency markets and banking, as well as seeking to establish "more flexible" labor markets. The overriding purpose was to make Australia's domestic economy more competitive and export-oriented, forcing Australian businesses to be more efficient. Initiated by the Commonwealth, the press for efficiency has preserved policy dominance of the federal government but diminished its responsibility for national economic management in favor of the states.
The rationalization of Australian economic policy, which was introduced by the Hawke Labor government with a complementary set of reforms designed to make government more efficient by streamlining federal arrangements and intergovernmental relations, culminated in the formation of a new Council of Australian Governments (COAG). This council was engineered through a series of special premiers' conferences involving the prime minister and premiers, backed up by extensive officials meetings. The Commonwealth initiated and drove the process, while the states were attracted by the promise of fiscal reform to address severe vertical fiscal imbalance (the Commonwealth collecting the lion's share of taxation and the states being dependent for approximately half their revenue on Commonwealth general and specific-purpose grants). During a rare period of relatively stable politics in all jurisdictions in the early 1990s, a good deal was achieved that showed the flexibility of Australian federalism.
By contrast, the succeeding Howard government has shown little interest in COAG, but through taxation reform and the introduction of a Goods and Services Tax (GST), has redressed the problem of fiscal imbalance and significantly enhanced the economic independence of the states. Reforms such as COAG and the GST are indicative of the pliability of Australian federalism, which ultimately tends to preserve the policy dominance of the Commonwealth while ensuring consensual agreement with the states. This pattern is likely to continue, although we can probably expect a winding back of Commonwealth expenditure in policy areas that can be better managed by the states. In other words, fiscal centralism is likely to remain the hallmark of Australian federalism but with increasing devolution of revenues and program management to the states.
The pressures of globalization on the Australian marketplace necessitated greater efficiency in government service delivery, and hence better relations between the state and Commonwealth governments in coordinating policy. Essentially, COAG was representative of a Commonwealth attempt to collaborate with the states on the efficient delivery of government services. The process enjoyed some early successes. At only its second meeting in July 1991, COAG confirmed new agreements to rationalize responsibilities for disability services and to establish a National Grid Management Council for electricity, a National Rail Corporation, a national heavy-vehicle regulation scheme, and a national system for the supervision of building societies and credit unions. (12) Under the new collaborative process, the array of ad hoc intergovernmental bodies was streamlined and more than halved. National competition policy was adopted to eliminate inefficient government provision of utility services and the privileging of governme nt providers. The new arrangements included the extension of trade practices legislation to state businesses and the establishment of stronger regulatory bodies, the Australian Competition and Consumer Commission (ACCC) and the National Competition Council (NCC). The core principle of competition policy is "competitive neutrality" that prohibits any privileging of government providers. If governments retain state provision, as some states have, they are subject to competition. Other key reforms include achieving national standards in such areas as food processing and packaging, and adoption of mutual recognition for regulatory provisions for goods and occupations across the various jurisdictions. Sharing in this latter reform was part of New Zealand's motivation in securing quasi-federal status as a contributing state.
The COAG reform process has been extensively documented and critically assessed by Glyn Davis, Martin Painter, and, comparatively with Canadian reforms, by Douglas Brown. Painter characterises these reforms as "collaborative federalism" and shows that the states played a significant role in defining the "national interest" and devising new intergovernmental arrangements for setting national standards based on majority decision-making rather than unanimity. (13) Similarly, Davis argues that moves to redress jurisdictional overlap through COAG produced a major upgrading of federal and state coordination capacities. (14) It bolstered the authority of the Commonwealth government and streamlined the bureaucratic structure of state departments by making the state governments more responsible both to each other and to the idea of "Australian government" as a whole. Significantly, Brown demonstrates "that Australia has produced a more coherent and innovative set of reforms processes" than Canada, (15) in part becaus e Canada has relied more on free trade with the United States as a discipline for promoting federal efficiency. The COAG reforms show that Australia's federal arrangements can be streamlined and improved, provided there is the political will. The continuing discipline of international competitiveness will likely ensure that cooperative efficiency remains a feature of Australian federalism. While the Commonwealth is reluctant to surrender its dominant role, the states retain significant economic jurisdiction and, therefore, are essential partners in intergovernmental policy and management.
Michael Keating and John Wanna argue that the reform intensity of COAG could not have been maintained indefinitely. COAG was a time-consuming and rigorous process in which success was contingent upon the careful preparation of meetings and the development of trust between participants. As the composition of governments change, and as their individual priorities alter, the process of negotiated and coordinated reform inevitably breaks down. (16) Although capable of being revived, COAG may have served its purpose for the present. Indeed, the Howard Liberal coalition government elected in 1996 has been unconcerned with federalism, showing little interest in, and giving no leadership to, COAG. Its main policy concern has been with tax reform, in particular with the introduction of the GST and associated income-tax reductions. As with the earlier COAG reforms, tax reform has been touted as an efficiency reform to make Australia more internationally competitive. The Howard government took the proposal to the peopl e in the general election at the end of 1998 and, against the odds, won a majority of seats although not a majority of popular votes.
Introduction of the GST has a major impact on federalism because the entire proceeds go to the states, allocated on the standard relativity basis calculated by the Australian Grants Commission in the horizontal fiscal-equalisation process. Principles for administering the GST were agreed at a Special Premiers' Conference in November 1998, and an Intergovernmental Agreement on the Reform of Commonwealth-State Relations ratified at the Premiers' Conference in April 1999. All states signed on, even though the Labour premiers formally registered their party opposition to the GST in the text of the agreement. Such opposition was largely symbolic, although the federal Labor party in opposition claims it will not roll back aspects of the GST in the future. The intergovernmental agreement sets up a Ministerial Council for Commonwealth-State Financial Relations consisting of the various treasurers, and gives the states a role in determining the GST base and future rate. This is currently set at 10 percent and requires the unanimous support of state and territory governments before it can be varied. This elaborate mechanism has gone some way toward alleviating state fears that the GST is yet another dose of fiscal centralism, implemented via Commonwealth legislation, albeit for their benefit.
Fiscal centralism has been the engine powering the Commonwealth's dominance and its expansion of jurisdiction into major policy areas of health, education, and welfare since World War II. The Commonwealth imposed a uniform tax for war purposes and consolidated its monopoly in this lucrative area during the postwar period. It used the revenues to expand its own policy initiatives and to impose conditions on compensating grants paid to the states. Before the GST, the Commonwealth raised about three-quarters of all government revenues, and the states received about 45 percent of their income from general and specific-purpose grants. With nearly half of the total grants "tied" for specific purposes, the Commonwealth exercises enormous policy influence on the states. The GST replaces the old Commonwealth wholesale sales tax and a number of inefficient states' taxes, including payroll tax, as well as reducing income-tax rates. With the entire proceeds, less collection costs, being allocated to the states, there is a corresponding reduction in grants. (17) Although the GST is not as broad based as the Howard government hoped because the Australian Democrats who hold the balance of power in the Senate forced the government to exempt food, it will be a growth tax into the future.
Curiously, and although indirectly, globalization has had a stabilizing effect on Commonwealth institutions. As the earlier discussion of COAG reforms to intergovernmental relations suggests, the Australian Labor party has changed tack from wanting to abolish federalism to reforming its operation. This reconciliation of Labor and the Constitution has removed the main domestic challenge to Australian federalism. Until the 1960s, Labor was formally committed to the abolition of federalism and its replacement with a unitary system of government. The thirteen years of Commonwealth Labor government under Prime Ministers Hawke and Keating that ended in 1996 showed how complete Labor's reconciliation with the federal Constitution has been. Labor wasted little time in trying to change the constitutional system, opting instead to improve the working of federalism and streamline intergovernmental relations. Labor's federal conversion was part of a broader transformation of the party, that was itself precipitated by cha nges in the global economy: from a trade-union-based workers' party pledged to centralize power for purposes of statist intervention and economic control, to a party of public managers committed to neo-liberal economics, market solutions, and effective targeting of welfare policies.
As a result, the transformation of Labor has helped ensure ongoing institutional harmony between federalism and responsible parliamentary government that a minority of founders thought would prove an unworkable combination. Australia's constitution accommodates responsible government within a federal democratic structure. The Australian system cannot quite properly be classified as a form of "constrained parliamentarianism", as Bruce Ackerman defines the term. (18) That is because the executive is fully integrated within the House of Representatives. Australia's is a modified system of constrained parliamentarianism, however, because the Senate has virtually co-equal formal powers with the House of representatives and is typically controlled by minor parties with which the government has to deal in order to pass its legislation.
Ackerman misreads Australia's system because he focuses on the exception rather than the rule. (19) The exception was the constitutional crisis of 1975 when Governor General Kerr sacked Labor Prime Minister Whitlam whose government was denied supply by an opposition-controlled Senate. The rule is routine negotiation and compromise between the government that controls the House of Representatives through strong party discipline and minor parties and independents that typically hold the balance of power in the Senate. That has always been the case since 1975, and the dominant minor party is the Australian Democrats, which is pledged not to block supply. The majority of Australia's founders who supported combining responsible government with strong bicameralism expected that political good sense and compromise would ensure the effective operation of the system and, except for 1975, that has been the case.
Contrary to Ackerman's criticism, it is precisely the Senate's strong legislative autonomy that provides the basis for effective parliamentary scrutiny of government legislation and action. The adoption of a proportional-representation voting system in 1948 has broken the major parties' dominance in the Senate and allowed a quiet revolution in Australian parliamentary practice. The Senate has enhanced its role through broadening inputs into national legislation and providing greater scrutiny of government administration and expenditure. The Senate has played a major national role in shaping native-title legislation, exempting food from the new GST, and influencing the government's annual budgets.
The Senate's legislative-review function was extended in 1982 through the establishment of the Scrutiny of Bills Committee that can refer bills to an array of Senate legislative and general-purpose standing or select committees. (20) While the Senate committees can serve party purposes of embarrassing the government and delaying its legislative program, they also help to expose ministerial and bureaucratic weaknesses and improve legislative outcomes. Currently, a quarter of bills passed by the Senate undergo prior committee examination whence substantial amendments derive. As John Uhr concludes, "the emerging legislative process is an improvement on the traditional modes of party government and shows encouraging signs of a capacity to measure up to effective deliberative standards." (21) Ian Marsh has argued that the traditional two-party system of adversarial politics that characterizes traditional parliamentary life is inadequate for representing the diversity of modern life and new social movements. Effec tive public policy and problem-solving require a wider and more diverse process that incorporates multiple interests and produces more consensual outcomes. The Senate, through its electoral system of proportional representation and its committee structure, provides something of that in modern Australian politics. (22)
The Senate's main role is one of contributing to national legislation and scrutinizing the Commonwealth executive and only incidentally acting as a states' house. Most significantly, it weights national representation in favor of smaller state populations, and it provides a forum for injecting particular state interests into national consideration. While sometimes benefiting state interests, that is usually a part or consequence of its party and national purposes. In looking to the future, both Labor's reconciliation with federalism and the development of Australia's own unique brand of constrained parliamentarianism are highly significant. Today, there is both a broad political consensus regarding federalism as well as the development of a more effective integration of parliamentary responsible government and constitutional federalism.
Likewise, the Australian people seem satisfied with this century-old federal Constitution. The people have traditionally played a significant role in shaping Australian federalism. The Australian Constitution was radically democratic for its time, being framed in a series of constitutional conferences in the 1890s by delegates elected by the people of the various colonies. The final draft was endorsed by popular referendum before being formally passed by the imperial Westminster Parliament at the request of the Australians. The Constitution incorporated a referendum procedure in Section 128 that was both thoroughly democratic and federal, with changes to the Constitution requiring a double majority of electors overall and in a majority (four out of six) of the states. Australia's record of constitutional change by popular referendum is modest: only 8 out of 44 proposals for constitutional change that have been put to the Australian people have passed. While some blame the ignorance and apathy of the people f or such a low success rate, the record may be more a reflection of the quality of proposals than of popular intransigence. The Commonwealth government that controls the framing and initiation of proposals has often sought to expand its own powers or to put questions lacking popular support. Such proposals invariably fail.
The most recent example was the 1999 referendum to republicanize the head of state that was roundly defeated. While a majority of Australians claimed to favor a republic, most wanted to elect the head of state rather than have that office filled by the prime minister with Parliament's endorsement, which was the proposal put to them at referendum and rejected. Denied the opportunity for direct election, the people preferred to stick with present arrangements. As the centenary of Australian federation was celebrated in 2001, Australian federalism was largely taken for granted by Australians because it has proved itself constitutionally. As a system of government, Australian federalism provides a robust and flexible means of negotiating a diversity of regional and domestic issues while presenting a relatively unified face to the world. Politicians and bureaucrats from Commonwealth and state polities will continue to maneuver and manage the intricacies of competitive edge against collaborative gain.
TREATIES AND RIGHTS PROTECTION
Perhaps the most interesting area in which the Commonwealth has been forced to respond to globalization concerns treaties and rights protection. Global instruments for human and environmental rights protection, coupled with the willingness of the Australian judiciary to interpret the Commonwealth's external affairs power broadly, have allowed international law to penetrate Australia's federal system in ways not yet characteristic of most Western federal democracies. Without a bill of rights, Australia has increasingly integrated international human-rights norms and become subject to scrutiny by United Nations monitoring committees. Sometimes reluctantly, various Commonwealth governments have been forced to modify policy in the presence of a rights-conscious and rights-respecting population prepared to challenge its legislation as being in breach of international law. Nevertheless, the integration of global political norms into the Australian system is nothing new, and should present few substantial challenges for the Commonwealth. Indeed, tied to Britain by imperial obligations, Australia was without an independent foreign policy until 1941, and entered the Second World War with Britain in 1939 without making its own declaration of war.
The High Court has played a major role in legitimating the Commonwealth government's enhanced power over rights protection that displaces traditional state jurisdictions. It has also absorbed international standards into its common-law jurisprudence, especially in the area of indigenous land-title. Paradoxically, the Commonwealth's expanded rights jurisdiction that has been gained via the mechanism of implementing international treaties has been two-edged. In expanding its domestic jurisdiction at the expense of the states, the Commonwealth has become subject to international standards and bodies. This entails a certain diminution of national and parliamentary sovereignty that the Howard Liberal Coalition government finds especially galling.
Since the Engineers case of 1920, the High Court has adopted the interpretive method of reading Commonwealth powers in a full and plenary way regardless of the effect on state powers. Such constitutional jurisprudence favors the expansion of Commonwealth powers, and that has been the dominant pattern in judicial review. (23) The High Court has sanctioned ever-increasing expansion of Commonwealth powers to the point where there are now few constitutional constraints of a federal nature. In recent decades, contestation has shifted from old-style left-versus-right struggles over economic management and redistribution to the new politics of rights protection, gender equality, indigenous people, and the environment. (24) The Commonwealth has expanded its jurisdiction over such policy areas by means of implementing international treaties using its Section 51 (xxxix) external-affairs power. The High Court has legitimated this by taking an extremely broad view of the power so that the Commonwealth can make laws over virtually any matter that becomes the subject of an international treaty. According to Anthony Mason, one of the prime architects of this view and chief justice at the time, "the power must be interpreted generously so that Australia is fully equipped to play its part on the international stage." (25)
Two key areas where the external-affairs power has been used in recent decades are human rights, especially concerning aboriginal people, and the environment. In the Koowarta case (1982), the Court upheld the validity of the Commonwealth Racial Discrimination Act, passed by the Whitlam government in 1975 that implemented the UN Convention on the Elimination of Racial Discrimination. At issue was a discriminatory Queensland law preventing the transfer of pastoral land to an aboriginal purchaser. This was a landmark ruling by a narrow majority of judges that laid the foundation for the modern expansive interpretation of the treaty power. By means of this power, the Commonwealth could overide state law and practice using international standards that it had embraced.
The Tasmanian Dam case (1983) saw the consolidation by the High Court, with two new members, of the expansive reading of the treaty power. In this highly controversial case, the Court upheld Commonwealth legislation preventing Tasmania from building a hydroelectric dam on a river included on the World Heritage List maintained under the UN World Heritage Convention. In that case, two subsequent chief justices strongly endorsed a virtually open-ended power of the Commonwealth to trump the states in implementing international standards to which Australia had become party. Mason claimed that "there are virtually no limits to the topics which may hereafter become the subject of international co-operation and international treaties or conventions." (26) The dynamics of globalization and such an open-ended Commonwealth power would inexorably change the federal system, expanding the Commonwealth's jurisdiction and eroding that of the states. Brennan affirmed the inevitable logic; the power of the Commonwealth would wax and that of the states would wane. (27)
Despite dire warnings from the dissenting judges in the Tasmanian Dam case that such an open-ended interpretation of the treaty power was "a threat to the basic federal polity of the Constitution," (28) the expansive interpretation has continued to be adopted in subsequent environmental (29) and human rights cases. (30) The consequence has not been the demise of Australian federalism, but an enhanced role for the Commonwealth and greater reliance on political compromise and intergovernmental relations to work out the respective roles of Commonwealth and state governments.
In expanding its own power at the expense of the states, the Commonwealth has also extended Australia's reliance upon international human-rights norms and UN monitoring committees. The consequences are that domestic rights issues are increasingly influenced by international practice, and domestic controversies are readily elevated to international forums. Ironically, in expanding its policy role vis-a-vis the states, the Commonwealth is making Australia more dependent on policymaking and rule-setting by international bodies. Adding an international dimension has changed Australian rights protection and produced some curious outcomes.
The Toonen case from the mid-1990s was a cameo instance of the practical operation of international human-rights norms in ending discriminatory domestic practice. On behalf of the gay and lesbian reform group in Tasmania, Nicholas Toonen mounted a complaint to the UN Human Rights Committee against Tasmanian criminal law forbidding homosexual conduct between adult males. Although Tasmania did not enforce the law, it refused to repeal it. The UN committee found in favour of Toonen (31) and, when the Tasmanian government refused to act, the Commonwealth government passed legislation overriding aspects of the Tasmanian law. (32) Tasmania first challenged the Commonwealth law in the High Court, but then suspended its challenge and repealed its offending law, replacing it with nondiscriminatory provisions. The Toonen case shows how determined individuals and groups can now take their human-rights grievances to international bodies and use their favorable advisory decisions to leverage political change through the Australian federal system. This alternative is particularly significant for Australia in the absence of a domestic bill of rights, as Justice Michael Kirby noted:
As we do not have a general constitutional Bill of Rights in Australia and as there is no regional human rights court or commission for Asia or the Pacific, the importance of the ICCPR could not be over-stated. Indeed, the significance of the Toonen decision runs far from Tasmania and Australia... It brings hope to people in countries where individuals are still oppressed by reason of their sexuality. (33)
More indirect, but nonetheless significant, is the increasing influence of international legal norms on Australian common law. Most notable was the Mabo decision that overturned two centuries of discriminatory property law based on the doctrine of terra nullius and recognized native title for the first time. In the leading opinion of the High Court, Brennan appealed to international standards:
The opening up of the international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports...It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy traditional lands. (34)
The Mabo case revolutionized Australian property law and showed how the line of demarcation between international and domestic law is being blurred through Australian judges' transposing international norms into their decision making. The case had major federal implications because property law is a key area of state jurisdiction, and the states are bound by the Commonwealth's Racial Discrimination Act. Thus, they had to abide by Mabo and subsequent Wik decisions that extended native title to pastoral leases that cover much of north and central Australia.
The use of international standards in domestic common law has been endorsed by Kirby, a prominent internationalist and now judge of the High Court. Kirby advocates the Bangalore Principles, adopted by the International Commission of Jurists (ICJ) at a conference in India in 1995, that call for use of international law to fill gaps or overcome uncertainties in domestic statutory or common law. (35) While on the face of it a moderate doctrine, there is clearly scope for judicial creativity in determining gaps and uncertainties. Some see a role for such creativity. For example, Kirby argues that application of these Principles calls for "equal attention and urgent consideration ... (to) be given to the implementation, promotion and protection of economic social and cultural rights, as well as civil and political rights." It is acknowledged that such implementation of broader social and cultural rights in legal decision making demands "legal skills and imagination." (36)
However, the Commonwealth has not accepted the influence of global politics uncritically. While concerned to measure up to international standards, it is also concerned to play a role in contributing to the determination of those standards. Indeed, the globalizing of Australian rights protection has drawn strong criticism from some quarters. The Howard government is critical of the UN committee system that monitors the compliance with human-rights treaty obligations. In contention are the reporting mechanisms set up under such UN human-rights treaties as the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, and the Convention on the Elimination of Racial Discrimination. In particular, the government charges that the CERD Committee's decisions in March and August 1999 and its concluding observations in March 2000 that were critical of the government's recent handling of aboriginal policy were not well founded or reasoned. According to Attorney-General Williams, t he committee failed to "engage seriously with the extensive material put before it by the Government"; it "failed to deliver well-founded criticism, strayed well beyond its mandate and made recommendations of a political nature." (37) The government has initiated a review of Australia's interaction with the UN treaty committee system to "ensure that such interaction is constructive and worthwhile." (38) Confident of its capacity to manage rights protection, the Australian government is sensitive to criticism of its record with respect to aboriginal people and protective of controversial laws such as the Northern Territory's mandatory sentencing that applies to juveniles.
Also contentious has been the impact of international law in the absence of domestic legislation implementing it. The basic principle that international law does not have effect unless it is incorporated into domestic law was challenged by the Teoh case (1995). The Court found that by entering into a treaty, the Australian government creates a "legitimate expectation" in administrative law that the executive and its agencies will act in accordance with the terms of the treaty, even when the treaty has not been incorporated into Australian law. The case involved the deportation by the Immigration Department of Mr. Teoh, a non-citizen father of young children convicted of possession and trafficking in heroin. Australia had entered into the United Nations Convention on the Rights of the Child that makes the best interests of the child a primary consideration in cases involving separation from their parents. However, it had not implemented the provisions of the convention into domestic law, and the immigration o fficials had not taken it into account. The High Court's innovative finding was summed up by Mason and Deane: [R]atification by Australia of an international instrument is a positive statement by the executive government of this country to the world and the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention. (39)
Both sides of politics were aghast at the decision. The Labor minister for foreign affairs and the attorney-general immediately issued a joint statement denying any such legitimate expectation and promising to introduce legislation to that effect. (40) The Court had also made it clear that a legitimate expectation cannot arise where there is a statutory or executive indication to the contrary Government changed before legislation was passed, and the new Liberal National Coalition government made a similar declaration in 1997. Their proposed legislation also lapsed with the calling of the 1999 election, and a new bill is currently before the Senate. If it eventually passes, the executive will have reasserted the determining role of parliament in translating international treatises into domestic law.
Despite their reservations with Teoh, the Labor government and its forceful minister for foreign affairs, Gareth Evans, exploited the untrammelled treaty-making power with little concern for parliamentary scrutiny or public accountability. The practice of bulk tabling treaties every six months developed and, by the 1990s, between 30 and 50 treaties per year were being tabled in Parliament. In about two-thirds of cases, Australia had already ratified or acceded to the treaties before tabling and was obliged to comply under international law. (41) Such contempt for Parliament, combined with concern about the High Court's open-ended interpretation of the external-affairs power that favoured the Commonwealth over the states, caused a political backlash. A Senate committee called for greater public scrutiny and public accountability, (42) and its key recommendations were adopted by the incoming Howard Coalition government in 1996.
The 1996 overhaul of the treaty-making process included mandatory tabling of treaties 15 sitting days before the government takes action to bring them into force; provision of an accompanying National Interest Analysis explaining the reasons for Australia's becoming a party; scrutiny by a Parliamentary Joint Standing Committee on Treaties; establishment of a Treaties Council under the auspices of COAG; and public access to treaty-making information via the internet. (43) While the COAG Treaties Council has yet to prove itself, other parts of the new policy are operating to give greater scrutiny. Since 1996, the Joint Standing Committee on Treaties has issued 34 reports covering 185 treaty actions. (44) A recurring federal theme has been the states' complaint of lack of consultation in areas they claim to be of vital concern for their jurisdiction. The COAG Treaties Council is designed to remedy this by providing a regular forum for the prime minister and the premiers and first ministers from the states and te rritories to meet together. As well, states like Victoria have implemented their own state parliamentary scrutiny of treaties that affect them.
Australian federalism can no longer be analyzed without reference to the international stage. Globalization has altered Australia's perception of itself within the region and stimulated major reform of intergovernmental relations that has in part consolidated the Commonwealth's dominance within the federal system but partly rejuvenated the balancing role of the states. Australia's federal system has proved flexible in responding to the pressures of globalization and mediating their impact on domestic issues. Whatever the global future, Australia's system of federal government is well suited to the challenge.
Not being part of a regional bloc, Australia will have to live by its wits if it is to prosper and meet the challenges of global change. Australia's best option is an orderly and decent world system, and it has the limited resources of a smallish middle power to assist in putting that in place. Its federal system is an advantage and has shown itself sufficiently flexible for the job. Perhaps we can go further and say that federalism is in fact more suited for a world where sovereign nationhood is undermined and replaced by global regimes of rule-making and standard-setting. Because of federalism, Australian governments are not sovereign, and policy-making in most key areas involves a complex interplay between multiple governments that have local, regional, and national bases. Adding a global sphere extends the complexity of governance but in ways that are not so foreign to the already complex system.
In the above account of how globalization has affected Australian federalism, there are two powerful trends that run in opposite directions. Despite its classic federal structure that is encapsulated in the constitutional system, Australian federalism has become relatively centralized in its domestic arrangements. This is most evident in fiscal federalism where the Commonwealth has asserted a near monopoly over taxation for half a century. It has been evident in the Commonwealth's expanded role in recent decades due to it superiority in matters pertaining to foreign affairs and treaties. If this were all, one might conclude that Australia's response to globalisation has been in keeping with its established centralist mode of operation, and that the effect of globalization in Australia has been to extend and consolidate Commonwealth dominance. There is a contrary tendency, however, that favors federalism and an enhanced role for the states that was apparent in the reform of intergovernmental arrangements in t he 1990s and resulted in COAG. It was also evident in the decision to give the entire proceeds of the new GST to the states. Meeting the economic challenges of globalization has entailed reforms to governance and federal arrangements that require state participation and have reaffirmed the states' role in national policymaking and regulatory regimes. On balance, the latter tendencies have countered the former. Despite some immediate advantage for the Commonwealth government in mediating international affairs, an increasingly globalized world will likely see a reduction in the role of national government. This should continue to favor federalism and the states, which has been the other part of Australia's recent experience.
(1.) Neville Meaney, Australia and the World, A Documentary History from the 1870s to the 1970s (Melbourne: Longman Cheshire, 1985), p. 38.
(2.) Ann Capling and Brian Galligan, Beyond the Protective State (Cambridge: Cambridge University Press, 1992).
(3.) David Meredith and Barrie Dyster, Australia in the Global Economy (Cambridge: Cambridge University Press, 1999); and Shaun Goldfinch, Remaking New Zealand and Australian Economic Policy (Wellington: Victoria University Press, 2000).
(4.) The term 'glocalization' was coined by Tom Courchene, "Glocalisation, institutional evolution and the Australian federation," Federalism and the Economy: International, National and State Issues, ed. Brian Galligan (Canberra: Federalism Research Centre, Australian National University, 1993).
(5.) See Keith Boeckelman, "Federal Systems in the Global Economy: Research Issues," Publius: The Journal of Federalism 26 (Winter 1996): 1-10; also Barry Friedman, "Federalism's Future in the Global Economy," Vanderbuilt Law Review 47 (October 1994): 1441-1483.
(6.) Ross Garneau and Peter Drysdale, eds., Asia Pacific Regionalism (Sydney: Harper Educational Publishers, 1994). For discussions of the institutional basis of APEC, see Richard Higgott, Andrew Cooper, and Jenelle Bonnor, "Cooperation-Building in the Asia-Pacific Region: APEC and the New Institutionalism," Pacific Economic Paper No. 199, Australia-Japan Research Centre, ANU, Canberra, 1991; for comparisons with the EU and NAFTA, see Vinod Aggarwal and Charles Morrison, eds., Asia-Pacific Crossroads: Regime Creation and the Future of APEC (New York: St. Martin's Press, 1998). For a broad economic discussion, see M. Dutta, Economic Regionalization in the Asia-Pacific: Challenges to Economic Coopertion (Chelternham, UK: Edward Elgar, 1999).
(7.) Paul Keating, Awakening: Australia Faces the Asia-Pacific (Sydney: Macmillan, 2000).
(8.) Department of Foreign Affairs and Trade, In the National Interest: Australia's Foreign and Trade Policy White Paper (Canberra: Department of Foreign Affairs and Trade, 1997).
(9.) See Gareth Evans and Bruce Grant, Australia's Foreign Relations: In the World of the 1990s (Melbourne: Melbourne University Press, 1991). For a critique, see David Jones and Mike Smith, Reinventing Realism: Australia's Foreign and Defence Policy at the Millennium (London: The Royal Institute of International Affairs, 2000).
(10.) Robert O'Neill, "A World Without Superpowers," Nation, Region and Continent: Studies in Peace and War in Honour of Professor T.B. Millar, ed. Coral Bell (Canberra: Australian Nation University, 1995), p. 147.
(11.) Brian Galligan and Richard Mulgan, "Asymmetric Political Association: The Australasian Experiment," Accommodating Diversity: Asymmetry in Federal States, ed. Robert Agranoff (Baden-Baden: Nomos Verlagsgesellschaft, 1999), pp. 57-72.
(12.) Michael Keating and John Wanna, "Remaking Federalism," Institutions on the Edge: Capacity for Governance, eds. Michael Keating, John Wanna, and Patrick Weller (St. Leonards: Allen & Unwin, 2000), p. 136.
(13.) Martin Painter, Collaborative Federalism: Economic Reform in Australia in the 1990s (Cambridge: Cambridge University Press, 1998).
(14.) Glyn Davis, "Carving Out Policy Space for State Government in a Federation: The Role of Coordination," Publius: The Journal of Federalism 28 (Fall 1988): 147-164.
(15.) Douglas Brown, Market Rules: Economic Union Reform and Intergovernmental Policy-Making in Australia and Canada (Montreal and Kingston: McGill-Queens University Press, 2002).
(16.) Keating and Wanna, "Remaking Federalism," p. 149.
(17.) Denis James, Federal-State Financial Relations: The Deakin Prophesy, Research Paper No. 17, Department of the Parliamentary Library, 2000.
(18.) Bruce Ackerman, "The New Separation of Powers," Harvard Law Review 113 (2000): 634-729.
(19.) Ibid., 674-676.
(20.) For a full account, see Harry Evans, ed., Odgers' Australian Senate Practice, 9th ed. (Canberra: Department of the Senate, 1999), chapter 16.
(21.) John Uhr, Deliberative Democracy in Australia (Cambridge: Cambridge University Press, 1992), p. 150.
(22.) Ian Marsh, Beyond the Two Party System (Cambridge: Cambridge University Press, 1995).
(23.) Brian Galligan, Politics of the High court (Queensland: University of Queensland Press, 1987).
(24.) Haig Patapan, Judging Democracy: The New Politics of the High Court of Australia (Cambridge: Cambridge University Press, 2000).
(25.) Anthony Mason, "The Australian Constitution 1901-1988," Australian Law Journal 62 (1988): 755.
(26.) Tasmanian Dam Case (1983), 158 CLR 1, at p. 486.
(27.) Ibid., 528.
(28.) Wilson, ibid., p. 517.
(29.) See, for example, Richardson v. Forestry Commission (1988), 164 CLR 261; Queensland v. Commonwealth (1989), 167 CLR 232.
(30.) See, for example, Polyukkovich v. Commonwealth (1991), 175 CLR 501; Horta v., Commonwealth (1994) 123 ALR 1.
(31.) Nicholas Toonen and Australia, United Nations Human Rights Committee, Communication No. 688/ 1992, Doc: CCPR/C/50/D/188/1992 (4 April 1994). See also Tim Tenbensel, "International human rights conventions and Australian political debates: issues raised by the Toonen Case," Australian Journal of Political Science 31(1996):7-23.
(32.) Human Rights (Sexual conduct) Act (Cth) 1994.
(33.) Michael Kirby, "International Law-Down in the Engineroom," (presented to the ANZSIL and ASIL joint conference, Sydney, 26 June 2000), p. 18.
(34.) Mabo v. Queensland (No.2) (1992) 175 CLR 42. See Michael Kirby, "The Role of International Standards in Australian courts," Treaty-Making and Australia: globalization versus sovereignty, eds. Philip Alston and Madelaine Chiam (Annandale: Federation Press, 1995). pp. 83-84; and Haig Patapan, "Rewriting Australian Liberalism: The High Court's Jurisprudence of Rights" Australian Journal of Political Science 31(1996): 225-242.
(35.) Michael Kirby. "The Role on International Standards in Australian courts" Treaty-making and Australia: Globalization versus Sovereignty, eds. Alston and Chiam, pp. 74-92.
(36.) International commission of Jurists, The Bangalore Declaration and Plan of Action, 1995, paras 5 and 18.2, quoted and explained in Michael Kirby, "Human Rights: an Agenda for the Future," Rethinking Human Rights, eds. B. Galligan and c. Sampford (Sydney: Federation Press, 1997), pp. 2-22, at p. 6.
(37.) Darryl Williams, "International Law and Responsible Engagement," (ANZSIL-ASIL conference Keynote Address, Canberra, 29 June 2000).
(39.) Minister of State for Immigration and Ethnic Affairs v. Teoh (1995), 183 CLR 273.
(40.) Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans and the Attorney-General, Michael Lavarch (10 May 1995).
(41.) Ann Twomey, "Procedure and Practice of Entering and Implementing Treaties," (Parliamentary Research Service Background Paper, No. 27, Department of Parliamentary Library, Canberra), p. 8.
(42.) Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (Parliament of the Commonwealth of Australia, 1995).
(43.) Downer Press Release & Speech; DFAT Web Site, summarising main changes.
(44.) Daryl Williams, "International Law and responsible engagement." (Prescription to ANZSIL-ASIL Conference, 29 June 2000).
Brian Galligan is Professor and Head of the Department of Political Science at the University of Melbourne. His most recent book is Globalization and Australian Citizens: The Experience of Two Centuries (co-authored with Winsome Roberts and Gabriella Triferletti, 2001).
John S. F. Wright is a research associate with the Department of Political Science at the University of Melbourne. His research interests are American politics, modern political theory, and the history of ideas. His most recent publication is "Anglicizing the United States Constitution: James Bryce's Contribution to Australian Federalism," which was published in Publius: The Journal of Federalism, Fall 2001.
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|Author:||Galligan, Brian; Wright, John S.F.|
|Date:||Mar 22, 2002|
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