Changes to Australian Federalism

"Although federalism is a central feature of the Australian political and legal system it has hanged markedly over time"

Evaluate this claim:

When the Federal Constitution took effect from January 1st 1901 it envisioned the States as sovereign participants on equal footing with the Federal Government. However, in 1920 (Engineers Case) the High Courts decision was to reject this idea of Federal-State equality and to interpret the Constitution in such a way as to increase the centralization of powers, rejecting implied-immunities, and thus move towards a more unitary form of government. The High Courts adoptions of a literalist approach to Constitutional interpretation has moved Australia from a 'co-ordinate' system (equality of States and the central Government) to a system of 'organic Federalism' A system in which the central government has extensive-reaching powers to dominate the states whose powers have diminished considerably since Federation. Looking at the phases of the High Court clearly marks some of the most notable changes to federalism within Australia through its interpretation of the Constitution. These interpretations have resulted somewhat in the vertical fiscal imbalance seen in Australia, which gives the Commonwealth a major advantage in dominating and controlling legislature and powers under State control (Such as the Uniform Tax Case 1942). Looking at the contemporary Governments under John Howard and Kevin Rudd also reveals markedly, changes to federalism since 1901.

In the early stages of Federation between the Commonwealth and States, the States did not seriously feel the deprivation of legislative power intended by the Constitution, however, as federal legislation becomes more and more active and extensive many powers simply contemplated by the Constitution have been taken away from the State Parliaments and absorbed in to the Commonwealth Government. These withdrawn powers may be divided into two groups the 'exclusive' and the 'concurrent'. Exclusive powers are those completely withdrawn from the State Governments and placed within the sole jurisdiction of the Federal Parliament. Concurrent powers are those with may be exercised simultaneously with the Federal Parliament, subject to the condition that, if there is any conflict between the two, the Federal law prevails, deeming the State law invalid. This gradual deprivation of State powers has increased throughout the years since 1901, with the centralization of Australian Government strengthening through the interpretations of the High court and Commonwealth Financial domination.

The function of the High Court in settling State and Federal disputes is important in the change in federalism. Resolving these State and Federal disputes however, is reliant on the constitutional interpretation which itself is conditional on the phases of the High Court. When the Constitution was first drafted the Framers intentions were to protect States rights and promote equality between the Federal and State level, this same intention was seen in the first phase of the High Courts decision making (1903-1920) generally known as the 'intentionalist' phase. This mimicking of the framers intentions is seen in the High Courts decision in the 'Railway Servants case' which protected State rights and reinforced implied immunities, it is an example of coordinate federalism within Australia as compared to the cooperative federalism it leans closer to nowadays.

In 1920 the High Court rejected this idea of Federal-State equality and moved out of the 'intentionalist' phase into the 'literalist' phase. The Case, which marked the beginning of this phase, was the 'Engineers Case' in which the High Court interpreted the constitution in such a way as to increase Commonwealth powers and begin the centralisation of power within the Australia. This decision also shifted the States exclusive control of Public Sector functions to a shared power with the Commonwealth Government. This is important when noting the change from coordinate federalism to cooperative federalism.

The next phase of High Court decision making is know as the 'legalist' phase (1942-1970). This phase was a move away from constitutional interpretation to following the 'black letter of the law'. Though generally during this phase the High Court favoured neither the States nor Commonwealth, it's judgement in the 1942 'Uniform Tax Case' was a