The Degree of Overlap that Exists in the Constitution

It is somewhat surprising that a federation that was modelled after American-style "dual federalism" would now be known for a significant degree of overlap and

interdependence. Yet, that is exactly the situation found in Australia, as a large number

of policy areas include a role for both the Commonwealth and state governments.190 The

evolution of the Australian federation towards a model of overlapping and coordinate, as

188

The data for this period was deemed to be not completely reliable as the COAG data does not cover this period and the records of the Commonwealth government appear to lack activity.

189 _{This rate of agreements takes into account that no data could be collected for the years 1987, 1988 and}

1989. Thus, the total number of agreements is divided by 60 years instead of 63.

190

Kenneth Wiltshire, "Australia's New Federalism: Recipes for Marble Cakes," Publius 22, no. 3 (1992): 175-176.

opposed to watertight, jurisdictions, may help explain the large number of intergovernmental agreements that have been created.

As they attempted to determine the nature of the Australian federation, the framers of the Australian constitution had three existing models to draw inspiration from: the United States, Switzerland and Canada. American and Canadian experiences with federalism were particularly influential, given the common British cultural legacy shared

by the three countries.191 While the Canadian model was important for demonstrating

that parliamentary government could function in a system of divided sovereignty (as opposed to the American republic), the American model of federalism would be more clearly reflected in the final constitution. Many delegates to the constitutional conference found the Canadian model too centralized, as Aroney records:

In the minds of these delegates, Canada was not an appropriate model of

federation because the Canadian provinces had not federated as ‘sovereign’ bodies politic on the basis of absolute equality. As a consequence, the Canadian Senate inadequately represented the provinces; the Dominion was given ‘general’ power to legislate, subject to an elaborate ‘division’ of responsibilities between the Dominion and the provinces (i.e. legislative power was not ‘delegated’ by the provinces to the Dominion); provincial legislation could be disallowed; and the provincial governments were apparently subordinated through centralized powers

of vice-regal appointment.192

This perspective on the Canadian experience with federalism clearly influenced the construction of the Australian federation and the degree of centralization found in the division of powers (this will be discussed in the following section). Beyond

centralization, it also had a substantial impact on the issue of constitutional overlap. As

191 _{Aroney, The Constitution of a Federal Commonwealth, 70. This is not to say that the Swiss model was}

not recognized – indeed, the Australian use of direct democracy, especially for constitutional ratification, was more akin to the Swiss than either the American or Canadian experience – merely that the cultural ties Australia shared with Canada and the United States increased their prominence in debates.

the framers of the Australian constitution were influenced by the American model for federalism, they sought to carve out jurisdictions by enumerating federal powers, while

reserving all other powers to the states.193 This created a system in which the states were

seen to have broad powers over everything that was not reserved to the Commonwealth,

granting them significant autonomy.194 In practice however, this distribution of

competencies allowed for development of significant overlap between the Commonwealth and the states. This overlap has two primary sources.

The first way in which this overlap has developed is through the enumerated powers of the Commonwealth. Section 51 and 52 list the powers over which the Commonwealth has jurisdiction. While Section 51 includes a large number of

competencies, including power over taxation, economic regulation, criminal and civil law and foreign relations, it is only the limited responsibilities of Section 52 which are

exclusively reserved to the national government. These powers are much more limited, including authority concerning the seat of government, the public service and any other matters that might be included by other sections (such as the organization and functioning

of Parliament).195 Moreover, Section 107 vests the States with any powers the

Constitution has not explicitly reserved from them, granting them broad and overlapping powers.. This essentially opened up the scope of Commonwealth powers to some level of concurrency, something acknowledged specifically in some of the enumerated powers

193 _{Specific Commonwealth powers are set out by Sections 51 and 52 of the Constitution. See: Saunders,}

"Collaborative Federalism," 31.

194

Riker, Federalism, 119.

195 _{Section 51 states that “The Parliament shall, subject to this Constitution, have power to make laws for}

the peace, order, and good government of the Commonwealth with respect to...” before listing the

enumerated powers. In contrast, Section 52 begins “The Parliament shall, subject to this Constitution, have

exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to...” (emphasis added).

such as banking (S. 51, xiii), insurance (S. 51, xix) and railways (S. 51, xxxiii).196 Although Section 109 gives the Commonwealth primacy in the case of conflicting legislation and the courts have attempted to clarify the powers of both orders of government, this has not diminished the "operative concurrency of Australian federalism".197

The second source of overlap in Australia has come from the evolution of these same enumerated Commonwealth powers. Although the initial intentions of the framers seem to have been to limit the reach of the federal government, the evolution of the Constitution since 1901 complicated, if not entirely impeded, this goal. The initial restraint used by the courts and the federal government in interpreting the breadth of enumerated powers lasted only a couple of decades and Commonwealth powers

increasingly expanded beyond their original scope.198 Saunders identifies

Commonwealth powers over “taxation, corporations and external affairs” as granting

much of the increased authority.199 For example, the Commonwealth has been able to use

its power to enter international treaties as a means to influence environmental and industrial policies in the states, as was the case in 1983 when the federal government

prevented the construction of a dam in Tasmania.200 As these Commonwealth

competencies were interpreted more broadly, this avenue of overlap was enabled and exacerbated by the financial powers of the Commonwealth government, which proved to

196

Painter, Collaborative Federalism, 13.

197 _{John M. Williams and Clement MacIntyre, "Commonwealth of Australia," in Distribution of Powers and} Responsibilities in Federal Countries, ed. Akhtar Majeed, Ronald L. Watts, Douglas M. Brown and John Kincaid, (Montreal & Kingston: McGill-Queen's University Press, 2006), 13-14.

198

The 1920 case Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. is specifically cited as a turning point from a more restricted to a more expansive view of Commonwealth powers. In this case, the High Court rejected the argument that reserved state powers should be given a broad reading. See Saunders, "Intergovernmental Agreements and the Executive Power."

199

Saunders, "Australia," 33.

be much greater than the states’.201

Thus, while the scope of state authority remained significant, the growth in federal authority has increased the number of areas in which both orders of government are active, beyond the existing overlap found in the division of powers.

These two means of overlap have created an increasingly concurrent constitutional environment in Australia. Watts’ comparison of powers and functions across federations

gives a good indication of just how substantial this degree of overlap is (see Appendix H).

Australia has the second highest percentage of overlapping jurisdictions – areas where either both governments are competent or explicitly concurrent – with both governments operating in 70% of enumerated areas; only Germany’s 75% overlap is higher.

Australia’s constitutional environment is one in which both spheres of government have some stake in the vast majority of government activities, creating a need for some form of coordination, such as intergovernmental agreements.

The record of intergovernmental agreement formation is consistent with the contention that a high degree of constitutional overlap provides fertile ground for such accords. With a relatively large number of national intergovernmental agreements, Australian governments clearly make frequent use of this device in order to coordinate their activities. Beyond the raw number of agreements, looking more closely at the record of agreement formation indicates the further impact of the wide degree of overlap (Appendix A includes the list of agreements and their policy areas). National

intergovernmental agreements in Australia are widely distributed across a number of policy fields; they exist in areas allocated to the Commonwealth in the enumerated powers - such as National Security - as well as those that fall under reserved state

authority, such as health and education202. Had these agreements been specifically

concentrated in one or two areas, it might be easier to conclude that the breadth of overlap is not significant to the formation of agreements.

The overlapping areas of jurisdiction create the need for coordination in order to allow for coherent policy to be developed across both orders governments. Australian governments seem to have chosen to address this need for coordination, at least in part, through the formation of numerous national intergovernmental agreements.