Australian federalism according to its creator

Andrew Inglis Clark

This is the first of several intended posts about Australian federalism. Federalism doesn’t seem to have very many supporters in early twenty-first century Australia, at least judging by the fact that both our current Prime Minister and Opposition Leader are campaigning on policy platforms which are fundamentally antithetical to it. Howard promotes a bizarre doctrine he calls “aspirational federalism”, which appears in fact to mean expedient, populist, bullying, pork-barrelling centralism; while Heavy Kevy favours a McKinsey-esque managerialist policy where federal bureaucrats would dictate and supervise performance targets and outcomes for States to achieve, and effect a General Brough-style takeover of any State which failed to come up to the mark.

However, as Fred Argy recently observed:

It can hardly be argued that state public servants are less professional and competent administrators than their federal counterparts. Nor is the Commonwealth necessarily more economically rational in its approach to policy. Indeed when one examines its illogical stance on government borrowing for infrastructure and its recent populist interventions in areas like state technical training, hospitals and local council mergers, the opposite may be the case at present.

Why do both Rudd and Howard feel so confident in deriding federalism and seeking to bypass or lord it over the States? Presumably focus group polling is telling them that they’re on safe ground in scapegoating State governments. One suspects that few Australians value federalism because few of us either understand it or recognise the benefits it brings in both underpinning freedom and promoting choice and competition in governance principles and even economic efficiency (yes efficiency – see Anne Twomey and Glenn Withers’ excellent paper Australia’s Federal Future prepared for the Council for the Australian Federation), .

In this post I’m just going to extract some observations about federalism made by Andrew Inglis Clark. Although almost no-one has heard of him, Clark is actually Australia’s version of the key American “Founding Father” Thomas Jefferson. One of the few surviving public remnants of Clark’s name is Tasmania’s Hare-Clark electoral system. Yet Clark actually drafted almost 3/4 of Australia’s Constitution (88 of the 127 sections are his work), with the much more widely known Sir Samuel Griffith writing most of the remainder. Clark is relatively unknown to Australians partly because of his own rather self-effacing character, partly because of a national disinterest in our constitutional history, partly because he came from the smallest original State Tasmania, and partly because he was in poor health with tuberculosis right through the Constitutional Convention process of the 1890s, and ultimately died prematurely in 1907 at the age of 59.

Here’s an extract from Clark’s book Studies in Australian Constitutional Law first published in 1901 (which you can access for yourself on the excellent Sydney University Library SETIS Australian Federation full text database):

It has become a trite observation that civil society is not a simple collection of human animals who are individually using all their energies and capacities to satisfy their corporal necessities and appetites, but is a complex organisation of human beings who possess intellectual and moral, as well as physical, faculties, and whose relations to the social organisation of which they are members makes them partakers in a collective and ultra-corporal life in which a variety of forces and interests are embraced. But the body social, like the body of the single human animal, may have lodged within it from time to time unhealthy and disintegrating forces which the machinery of government ought, as far as practicable, to exclude from any participation in the control or direction of legislation. To secure this result it is necessary that legislation should be produced by the concurrence of a plurality of authorities, in which the reflective judgment, and all the social forces that compose the healthy and progressive life of the community, shall find distinct expression. The excess of the simple numerical majority above the numerical minority may at any time represent the unhealthy and disintegrating forces of the community; and legislation obtained by their assistance must always be doubtful in its character.

The concurrence of a plurality of authorities in legislation is a necessary condition of truly constitutional government in any community, whether it is federal or unitary. If the whole legislative power is vested in a single authority it is a form of absolutism, whether the authority be a single man, or the majority of a single assembly. But if provision is made in the composition of the legislative authority for securing the concurrence of distinct majorities representing distinct social forces and interests, the government is constitutional. In a federal commonwealth, many of the numerical majorities of different portions of some of its component States will frequently represent forces and interests which will be identical in character with the forces and interests represented by numerical majorities in various portions of other States. But the collective and corporate life of each State will embrace the influences flowing from historical and geographical and other conditions peculiar to the State, and which make its collective and corporate life a distinct and separate force in the national life of the commonwealth. …

Professor Freeman has told us that the distinguishing advantage of the federal form of government is the multiplication of adequate arenas and conditions for the political education of the citizens of a common country, and for implanting in them an active patriotism. But the only solid security for the continuance of this advantage is an assiduous preservation of the separate corporate life of each component State in the Federation; and if the constitution of any federal commonwealth does not provide a sufficient protection of the several States against any attempt by a numerical majority of the total population of the composite community to reduce the area of separate political existence which the constitution reserves to each State, it fails to supply an adequate guarantee that the distinguishing advantage of the federal form of government will be a permanent possession of the people who live under it.

Some of Andrew Inglis Clark’s language looks a little archaic to modern eyes, but his message is just as relevant and important today as in 1901. Hopefully someone might remind Howard and Rudd before one of them takes us further down the road towards a centralist, imperialist majoritarian dictatorship.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Ken Lovell
14 years ago

Why do both Rudd and Howard feel so confident in deriding federalism and seeking to bypass or lord it over the States?

Well centralism has always been a characteristic of the Labor Party, possibly because of a touching faith in the efficacy of central planning. So Rudd’s not really doing anything new. Howard on the other hand is, the Libs being traditional states righters, but I suspect that doctrine starts to look a bit threadbare when you haven’t been able to win a state election for years and have no prospect of turning that around in the foreseeable future.

But isn’t the bigger issue that ‘the citizens of a common country’ is no longer an accurate description of the relationship between the individual and the state? No matter whether it’s at the federal, state or local government level, the state is increasingly regarded as a mixture of service provider, for which individuals are grudging customers, and authoritarian overlord, to which unquestioning obedience is due. The notion that the state represents the considered collective will of the citizenry sounds curiously old-fashioned these days.

Cam
Cam(@cam)
14 years ago

Ken, The modern form of centrism started with Gorton. He believed that the feds raised revenue and made policy. The states were administrative entities to disburse federal funds in pursuit of federal policy. It has been popular with every federal party since then, including the minor parties who have policies to abolish the states.

The plurality that Ingliss-Clark is talking about can also be described as a vertical separation of powers. The horizontal separation of powers is between the branches of government – where Au fails it at both national and state level as parliaments don’t separate the executive from the legislative. Federalism is a vertical form of executive, legislative and judicature separation.

observa
observa
14 years ago

Probably the move toward centralism can be linked broadly to increaing globalisation of problems making local govt response less relevant. Think about terrorism, GW and its related water problem (the Murray Darling), as well as our broader demographic aging problem for health and aged care. Then you throw in the internet shrinking communication/information reach and bingo! The states can never hope to deal with these problems without the resource raising power(income tax) and it’s hard to see that transfer happening.

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[…] Parish starts a series examining Australian federalism with a look at a half-forgotten father of the constitution, Andrew Inglis Clarke. Peter Black adds […]

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