The use of the principle of subsidiarity in the reformation of Australia’s Federal system of government

Abstract

Australia’s federal system of government is established by the structure of the Constitution which provides for a central federal government and six state governments. When the Constitution was originally drafted, the framers sought to make the states central players in the new federation, on an equal footing with the new Commonwealth government. This is evident from the Convention Debates, from federal theory itself, and from the manner in which the early High Court of Australia interpreted the Constitution. However, in the Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (‘Engineers’), the High Court broke with this tradition of originalist interpretation by utilising a method of constitutional interpretation (literalism) which favoured centralisation of power, and thus compromised the federal balance.This trend toward centralisation continued and is evident in more recent decisions. These include New South Wales v Commonwealth of Australia (‘Work Choices’ case), where a majority of the High Court affirmed that the federal balance is not relevant when interpreting the Constitution and Ha v New South Wales (‘Ha’), which affirmed a broad interpretation of excise duties resulting in a loss of $5 billion per annum to the states. This thesis will evaluate whether aspects of the principle of subsidiarity can be implemented by way of constitutional amendment and legislative and procedural reforms, to restore the federal balance. The principle of subsidiarity has its origins in Catholic social theory and has been incorporated into European Union law in art 5(3) of the Treaty on European Union (‘TEU’). The principle guards against centralisation by providing that governance should be undertaken at a local or community level, as opposed to a central level, wherever possible.