Federalism

What is federalism?

Federalism is a system of government in which powers are divided between two or more constituent entities by a written Constitution. A constituent entity often comes in the form of a state, region or province. Many of the largest countries in the world are federations, including the United States, Canada, India, South Africa, Argentina, and Australia. Virtually every large democratic nation has a federal system of government.

Federal structures are capable of varying greatly. Some confer a large amount of power in a central government that regulates the country as a whole, while others grant more autonomy to their constituent entities. Some impose clear divisions in the law-making powers of their constituent entities, while others have overlapping powers. Additionally, they may be administered by parliamentary governments which are led by a Prime Minister, or by Congressional institutions which are led by a President.

However, federal systems also have a number of common characteristics. They all have a central government, a written Constitution and a procedure for resolving constitutional disputes. Also, each order of government possesses some genuine authority. They also have organisations and procedures for facilitating intergovernmental relations.

What are the strengths and weaknesses of federalism?

Strengths

• Flexibility: Federalism allows policy to be customised to meet the particular needs of certain areas and communities. It has the ability to embrace diverse populations in a single political system while also providing a space for cultural differences. As a concept, it can adapt to the unique circumstances of different countries.
• Democratic participation: Federalism creates a system of dual citizenship. For example, in Australia, we are citizens of both the nation and a particular state. We may vote for different political parties at different levels of government. Smaller constituent entities allow citizens to engage with government more directly. Federations are able to do this while maintaining the strength of a larger nation.
• Choice & Competition: Citizens and businesses in a federation have the freedom to move to another state if they are unhappy with the government or the conditions where they currently reside. This provides an incentive for states to improve their services so that they can compete with other jurisdictions.
• Check on government power: The division of power between the constituent entities that make up a federation helps ensure that the national government will not become oppressive or authoritarian. It prevents power from becoming concentrated in a single governing body. Also, the need for cooperation between the levels of government provides greater scrutiny of policy.

Weaknesses

• Intergovernmental conflict: Finding a satisfactory compromise between coordinated policy and the individual needs and objectives of the constituent entities of a federation can be a fraught process. Some of the most significant intergovernmental conflicts in Australia have occurred where the federal government has intervened in areas traditionally belonging to the States. Such conflicts can create an impasse where very little can be achieved.
• Too much bureaucracy: Multiple governments with overlapping responsibilities and powers can create duplication and inconsistency. This can lead to bureaucratisation and increasing costs to businesses. Additionally, it can result in an unproductive lack of coordination in key policy areas, particularly those concerning infrastructure.
• Avoidance of responsibility: Where there are policy failings, the national government may blame its state counterparts and vice versa. This is particularly a problem where it is unclear which level of government is constitutionally responsible for a particular issue.

How did Australia become a federation?

The original penal colony of New South Wales was established in 1788.  Over the next 70 years a number of colonies, each with their own responsible government, were created. It soon became apparent to the colonies that they shared some common problems, and that inter-colonial cooperation may be desirable with respect to issues such as customs tariffs and immigration. Consequently, the first inter-colonial conference was held in 1863. Later, in 1885, the Federal Council of Australasia was established. It possessed legislative authority over certain specified areas and met sporadically until 1899. New South Wales refused to join the Council.

Over the 1890’s the move towards federation began to gain momentum. The first federation conference was held in 1890. The following year, the National Australasian Convention produced a draft Constitution. The draft failed to gain popular support and was not ratified by the colonies. It was not until 1895 that the Premiers agreed to establish a new Convention created by popular vote. The Australasian Federal Convention met throughout 1897 and 1898, when a final draft Constitution was finally agreed upon after exhaustive negotiations.

The people of the Australian colonies approved the draft Constitution in referenda held from 1898-1900. Britain enacted this approved draft as the Commonwealth of Australia Constitution Act 1900 (Imp). It received the assent of Queen Victoria on 9 July 1900 and came into force on 1 January 1901. The Australian federation was born. It is among the oldest federations in the world.

Who does what in the Australian federal system?

The Constitution divides law-making powers between the State and federal governments. Most of the Commonwealth’s powers are set out in section 51 – this provision enumerates 39 areas in which the federal Parliament may make laws, including trade and commerce, taxation, immigration and emigration, and external affairs. These 39 law-making powers are held concurrently with the States, meaning that State parliaments can also make laws in these areas. In the event that a Commonwealth law is inconsistent with a State law, section 109 of the Constitution is triggered, and the Commonwealth law prevails to the extent of the inconsistency.

The Constitution also grants the Commonwealth Parliament a small number of exclusive legislative powers. For example, the Commonwealth has exclusive powers to make laws regarding federal departments and places acquired by the Commonwealth for a public purpose (section 52), as well as laws with respect to customs, excise and bounties (section 90).

In contrast to the powers of the Commonwealth, the powers of the States are not enumerated in the text of the Constitution. Instead, the States retain what is known as plenary power, meaning that they can legislate with respect to any matter other than those matters over which the Commonwealth has exclusive power. As noted above, however, State laws will yield to those of the Commonwealth where an inconsistency arises under section 109. In addition, the States’ law-making power is subject to any express or implied limitations within the Constitution – for example, the requirement that laws should not interfere with the freedom of interstate (section 92). Some of the main areas of State law-making power include health and hospitals, primary and secondary education, and roads and transport.

Over the last century, the scope of Commonwealth law-making power has gradually increased, due mainly to High Court decisions that have interpreted its section 51 powers in a broad way. As a result, the Commonwealth is now able to make laws in a whole range of areas that were not open to it at Federation.

What is ‘cooperative federalism’?

One consequence of the sharing of law-making powers between the Commonwealth and State governments is that, on some issues, both tiers of government have to work together to achieve good policy outcomes. This approach to governance is called ‘cooperative federalism’, and can be seen in a range of policy areas, including health, education and rivers management.

Two important mechanisms for fostering intergovernmental relations are the Council of Australian Governments, and the referrals power.

Council of Australian Governments

The Council of Australian Governments(‘COAG’) was established in May 1992.  Its membership comprises the Prime Minister, State Premiers, Territory Chief Ministers and the President of the Australian Local Government Association (‘ALGA’). It is chaired by the Prime Minister. The role of COAG is to facilitate cooperation between all levels of government on policy areas that are of national significance. It initiates, develops and monitors the implementation of reform on shared issues that require collaboration and national agreement. COAG only meets as required rather than at regular intervals. It may also discuss or settle issues by correspondence while out-of-session.

Over the years, COAG has played a pivotal role in implementing policy reforms in a range of areas, including education and training, microeconomic reform, early childhood development and Indigenous reform. It has negotiated many important intergovernmental agreements, including those on Federal Financial Relations, the Murray-Darling Basin, and Gene Technology. At a two-day meeting held from 19-20 April 2010, COAG (with the exception of Western Australia) agreed to sign the National Health and Hospitals Network Agreement on health and hospital reform.

Referrals Power

The referrals power is contained in section 51(xxxvii) of the Constitution. It allows the federal Parliament to make laws with respect to matters referred to it by one or more State governments. The law-making power of the Commonwealth only extends to those States that have referred the matter concerned to the Commonwealth. It is the most important provision in the Constitution with respect to facilitating Commonwealth-State cooperation.

In recent years, the referrals power has been used to support reforms in several important policy areas. State referrals have been critical to the Commonwealth’s ability to implement legislative reforms in the fields of corporations law, industrial relations, terrorism and water management, among others.

What are some ideas for reforming Australia’s federal system?

A range of proposals have been put forward for the reform of Australia’s federal system.

1. Reallocate of roles and responsibilities

Some commentators argue that Australia’s federal system would operate more effectively if roles and responsibilities were allocated differently between the Commonwealth and the States. They point to the blurring of responsibilities that occurs in some policy areas, such as health care, where Commonwealth and State law-making powers overlap. They also argue that, more than one hundred years since our Constitution was written, it is time to revisit the question of which level of government is best placed to have responsibility for different policy areas.

Any review of Commonwealth and State roles and responsibilities would likely be guided by principles such as subsidiarity, national interest and cooperation. Subsidiarity is an important guiding principle in all federations – it refers to the idea that government functions should be allocated to the lowest level of government practicable unless there is a good reason for a higher level of government to assume them.

1. Enhance Commonwealth-State cooperation

A number of different reform ideas have been put forward with the aim of enhancing the ability of the national and State governments to work together. These include:

• Giving formal legal status to the Council of Australian Governments (COAG), and requiring it to have regular meetings with an agenda that is determined cooperatively, rather than by the Commonwealth alone;
• Amending the Constitution to remove barriers to cooperative legislative schemes, thus allowing the Commonwealth and State governments to enter into joint schemes with a single national regulator and a single body for dispute resolution;
• Amending the Constitution to clarify the operation of the referrals power in section 51(xxxvii), including on whether a State can revoke a reference, and the impact of amending or repealing a Commonwealth law made pursuant to a referral of power;
• Including a provision in the Constitution that supports the creation of intergovernmental agreements;
• Enabling constitutional amendments to be put to referenda where they are supported by at least half of the State Parliaments, representing a majority of the total Australian population, or elected constitutional conventions, rather than only be the Commonwealth Parliament;
• Allowing the States to play a role in appointing Justices of the High Court or establish a Judicial Commission to recommend High Court appointments.
• Restructure Commonwealth-State financial relations

Many commentators have called for reforms aimed at altering the financial relationship between the Commonwealth and the States to achieve a greater fiscal balance. Currently, the Commonwealth raises far more tax revenue than it spends while, conversely, the States are only able to raise a relatively small proportion of revenue that is insufficient to meet its many spending responsibilities. As a result of this ‘vertical fiscal imbalance’ (or VFI), the States have to rely upon grants from the Commonwealth in order to meet their financial obligations. This helps to contribute to ‘blame-shifting’ between governments, where Commonwealth and State governments blame each other for problems in service delivery, with neither tier prepared to take responsibility. One proposal for reform is to give the States a guaranteed share of tax revenue, beyond the GST, to enable them to finance their own spending responsibilities. This could potentially involve restoring to the States the power to collect their own income tax.

1. Strengthen regional governance

Some commentators have proposed that the federal system be restructured to allow for stronger regional governance. This proposal is partly driven by a concern that Australia’s regions are marginalised from political processes and that service delivery in regional areas is inadequate. Proponents also argue that the existing State boundaries do not reflect the geographical, social and cultural diversity of Australia. A common suggestion is that the regions of north Queensland or western New South Wales become their own States, while other proposals suggest having a federal system with as many as 60 regional governments.

A move to institutionalise regional government in Australia’s federal system could occur in a variety of ways:

• Abolish State and local governments and move to a two-tier federal system made up of Commonwealth and Regional governments;
• Institutionalise regional government as part of a move to a four-tier federal system, incorporating Commonwealth, State, Regional and Local governments;
• Retain the existing three-tier federal system, but use the existing constitutional mechanism to create several new States within existing State boundaries. For example, Queensland might be divided into South, Central and North Queensland, thus effectively entrenching a form of regional governance.

Another proposal that is sometimes put forward is to abolish the States altogether and move to a unitary system in which all legislative power is invested in the Commonwealth government.

General resources

Commonwealth of Australia, Reform of the Federation White Paper (2014)

Through focus on a number of issues relevant to the Federation, the White paper seeks to clarify roles and responsibilities to ensure that, as far as possible, the States and Territories are sovereign in their own sphere.

Secretary of PM&C Terry Moran delivers address at Eidos Institute on ‘The challenges of federalism’ (8 June 2011) 

Anne Twomey and Glenn Withers, Australia's Federal Future: Delivering Growth and Prosperity, A Report for the Council for the Australian Federation (2007).

This report, commissioned by the Council for the Australian Federation, argues that Australia’s federal system offers many real and potential benefits, and offers suggestions for reform.

Scott Bennett and Richard Webb, Chronology of Australian Federalism, Parliamentary Library, Parliament of Australia, Canberra (2007).

A chronology of major events in the development of Australian federalism. Also contains a list of constitutional provisions relevant to federal-state relations, and a list of Parliamentary Library papers on federalism.

Scott Bennett, The Politics of the Australian Federal System, Research Brief No 4, Parliamentary Library, Parliament of Australia, Canberra (2006).

Gives an overview of Australian federalism, including its strengths and weaknesses, and canvasses some options for reform.

AJ Brown and Jennifer Bellamy (eds), Federalism and Regionalism in Australia: New Approaches, New Institutions?, Canberra: ANU E Press (2006).

A collection of articles from a symposium of the same name in 2006. Includes chapters on regionalism, local government, public attitudes to federalism and principles for progressing the debate on federal reform.

Greg Craven, ‘The New Centralism and the Collapse of the Conservative Constitution’in Kay Walsh (ed), Papers on Parliament No. 44, Department of the Senate, Canberra, 133-149 (2006).  

Examines the relationship between conservatism and Australian federalism; responds to various criticisms of Australian federalism; and, argues that the Howard government’s approach to federalism was inconsistent with conservative philosophy.

Geoffrey de Q. Walker, ‘Ten Advantages of a Federal Constitution’Policy, vol. 16, no. 4, 35-41 (2000).

Outlines ten advantages of federal systems.

COAG and cooperative federalism

Commonwealth of Australia, “Issues Paper 1 - A Federation for Our Future,” Reform of the Federation White Paper (2014).

NSW Parliamentary Research Service, ‘COAG’, Briefing Paper No 6/2013, (July 2013).

Joint Committee of Public Accounts and Audit, Report 427: Inquiry into National Funding Agreements (24 November 2011).

Productivity Commission, Impacts and Benefits of COAG Reforms: Reporting Framework(Research Report, December 2010).

Gareth Griffith, ‘Managerial Federalism – COAG and the States’ (Briefing Paper No 10/09, Parliamentary Library Research Service, Parliament of NSW, 2009).

John Wanna et al, ‘Common Cause – Strengthening Australia’s Cooperative Federalism’ (Final Report to the Council for the Australian Federation, May 2009).

George Williams, Working Together – Inquiry into Options for a New National Industrial Relations System (Chapter 3; Final Report, November 2007).

Approaches to federal reform

Andrew Lynch and George Williams, ‘Beyond a Federal Structure: Is a Constitutional Commitment to a Federal Relationship Possible?’, University of New South Wales Law Journal, vol. 31, no. 2, 395-434 (2008).

Considers the case for formal constitutional recognition of the federal relationship between Commonwealth and State governments.

Anne Twomey, ‘Reforming Australia’s Federal System’ (2008) 1 Federal Law Review 36, 57-81.

Argues for reform of Australian federalism in three areas: the reallocation of powers and responsibilities between the levels of government; the improvement of mechanisms for intergovernmental cooperation; and, the reform of Commonwealth-State financial relations.

Business Council of Australia, A Charter for a New Federalism (2007).

The BCA calls on the nation’s leaders to work cooperatively through the Council of Australian Governments (COAG) to deliver national reforms.

Business Council of Australia, Reshaping Australia’s Federation: A New Contract for Federal State Relations (2006).

The BCA proposes a 12-point plan to improve the effectiveness of Australian’s federal system.

Productivity Commission, ‘Productive Reform in a Federal System’in Annual Report 2004-05, Annual Report Series, Productivity Commission, Canberra (2005).  

Gives an overview of the role of competition and cooperation in federal-state relations; emphasises the importance of intergovernmental cooperation in addressing national challenges, such as increasing globalization, environmental stability and an ageing population; and, suggests some directions for reform.

Fiscal federalism

Commonwealth of Australia, “Issues Paper 5 – COAG and Federal Financial Relations,” Reform of the Federation White Paper (2014).

GST Review Panel, GST distribution Review Final Report to the States and Territories (30 November 2012).

Economy and Infrastructure References Committee, Legislative Council of Victoria, Report on Inquiry into Commonwealth Payments to Victoria (November 2012).

This report considers the adequacy of National Partnership Payments (NPPs) and Local Government Financial Assistance Grants (FAGs) made by the Commonwealth in the State of Victoria. It also examines Commonwealth Own Purpose Expenditure undertaken in Victoria. Amongst its findings, the Committee reports that National Partnership Agreements, which provide for NPPs, are often complex and can hinder the effective delivery of services in Victoria. It also notes that FAGs have not kept pace with local government expenditure and this is placing significant pressure on local councils.

Neil Warren, Benchmarking Australia’s Intergovernmental Fiscal Arrangements: Final Report, Prepared for New South Wales Treasury (2006).

This report, prepared for the NSW Treasury, examines how Australia’s intergovernmental fiscal arrangements perform against a range of ‘best practice’ benchmark criteria.

Richard Webb, Developments in Commonwealth-State Financial Relations Since 2000-01, Research Brief no 11, Parliamentary Library, Parliament of Australia, Canberra (2006).

Examines developments in Commonwealth-State financial relations from the introduction of the GST to the beginning of 2006.

Richard Webb,Commonwealth General Purpose Financial Assistance to Local Government, Research Paper, no 1, Parliamentary Library, Parliament of Australia, Canberra (2003).

Examines how the Commonwealth determines the level and distribution of financial assistance it provides to local government, and looks at some key issues in relation to the provision of that assistance.

Denis James, Federal-State Financial Relations: The Deakin Prophecy, Research Paper, no 17, Parliamentary Library, Parliament of Australia, Canberra (2000). 

Examines the process by which financial power has, since Federation, gradually become more concentrated in the hands of the Commonwealth, and considers the repercussions of this.

Current issues

Education

Commonwealth of Australia, “Issues Paper 4 – Roles and Responsibilities in Education,”Reform of the Federation White Paper (2014).

Marilyn Harrington, ‘Australian Government Funding for Schools Explained’(Background Note, Parliamentary Library, Parliament of Australia, 31 January 2011).  

Council for the Australian Federation, The Future of Schooling in Australia(Federalist Paper No 2, September 2007).

Health and hospitals reform

Commonwealth of Australia, “Issues Paper 3 – Roles and Responsibilities in Health,”Reform of the Federation White Paper (2014.)

National Health and Hospitals Reform Commission, A Healthier Future for All Australians (Final Report, June 2009).

Sharon Scully, ‘Does the Commonwealth have Constitutional Power to Take Over the Administration of Public Hospitals?’(Research Paper No 36, Parliamentary Library, Parliament of Australia, 30 June 2009).

House Standing Committee on Health and Ageing, The Blame Game: The Report on the Inquiry into Health Funding (Parliament of Australia, December 2006).  

Gareth Griffith, ‘Commonwealth-State Responsibilities for Health – “Big Bang” or Incremental Reform?’ (Briefing Paper No 17/06, Parliamentary Library Research Service, Parliament of NSW, 2006).

Murray-Darling Basin Reform

COAG, “Intergovernmental Agreement on Implementing Water Reform in the Murray Darling Basin,” (11 June 2013.)

Paul Kildea and George Williams, ‘The Constitution and the Management of Water in Australia’s Rivers’ (2010) 32 Sydney Law Review 595-616.

Senate Rural Affairs and Transport References Committee, ‘The management of the Murray-Darling Basin:Interim report: the impact of mining coal seam gas on the management of the Murray Darling Basin’; (November 2011).

House Standing Committee on Regional Australia tables final report following inquiry into the Impact of the Murray-Darling Basin Plan in Regional Australia (2 June 2011.)

The Hon Justice Rachel Pepper, ‘The Constitutionalisation of Water Rights’(Paper delivered at Constitutional Law Conference, Sydney, 18 February 2011).

Murray-Darling Basin Authority, Guide to the Proposed Basin Plan (October 2010).

Homelessness

Commonwealth of Australia, “Issues Paper 2 – Roles and Responsibilities in Housing and Homelessness,” Reform of the Federation White Paper (2014)

Latest news

Mark Ludlow, ‘More states, not fewer, says Fraser’, The Australian Financial Review, 10 January 2013.

Cassandra Wilkinson, ‘Feds don't have all the answers’, The Australian, 9 January 2013.

Henry Ergas, ‘Tony Abbott should flesh out plan to fix federalism’, The Australian, 8 January 2013.

‘Brumby defends COAG, calls for new reform agenda’, Business Spectator, 4 January 2013.

Gabrielle Appleby, ‘Scrap the states? Would we have to scrap the Constitution too?’ Online Opinion, 4 January 2013.

‘Beattie calls for states to be 'abolished'’, news.com.au, 2 January 2013.

Troy Bramston, ‘'Scrap states' to drive reform: Bob Hawke’, The Australian, 1 January 2013.

Joe Kelly, ‘Kill COAG before it kills us, says Jeff Kennett’, The Australian, 14 December 2012.

David Crowe and Joe Kelly, ‘Calls to end dysfunction between states, Canberra’, The Australian, 10 December 2012.

George Williams, ‘Lost change of $20b a year is falling through federal-state divide’, The Sydney Morning Herald, 5 December 2012.

Shipra Chordia, 'Murray-Darling: why Australia needs intergovernmental cooperation', the Conversation 30 October 2012

Kenneth Wiltshire, ‘COAG loses grip on the States’ The Australian, 19 August 2011.

Anthony Albanese, ‘Premiers must not be a block on road to reform’ The Australian, 19 August 2011.

Malcolm Farr, ‘Julia Gillard hospital reform is “biggest since Medicare” after States all agree’ Daily Telegraph, 2 August 2011.

Annabel Hepworth, ‘Sign up on transport or lose, States told’ The Australian, 15 August 2011.

Imre Salusinszky, ‘COAG’s love-in all over now’ The Australian, 13 August 2011.

‘Concern about disability services “takeover” ABC News Online, 12 August 2011.

‘High Court challenge for school chaplains’ AAP, 9 August 2011.

John Ross, ‘Closed door policy fear in COAG reforms’ The Australian, 27 July 2011.

George Williams, ‘A state of confidence up north as NT moves towards adulthood’ Sydney Morning Herald, 19 July 2011.

Rosanne Barrett and John Ferguson, ‘O’Farrell warns of breakaway rival to COAG’The Australian, 8 July 2011

Dan Nancarrow, ‘In defence of the States’, Brisbane Times, 9 June 2011.

George Williams, ‘Chaplaincy challenge reveals legal failure’ Sydney Morning Herald, 24 May 2011.

Click here for earlier news items.

Recent reports and developments

Joint Committee of Public Accounts and Audit tables report on National Funding Agreements (24 November 2011).

Paul McClintock delivers address on ‘Can COAG deliver on its reform agenda?’(23 November 2011).

COAG release communiqué of meeting on 19 August 2011.

COAG Reform Council releases performance report on progress against the National Partnership Agreement on Essential Vaccines, 2009-10 (9 August 2011).

Senate Select Committee on the Reform of the Australian Federation tables final report (30 June 2011).

Federal government establishes expert panel to lead community consultation on options for recognising local government in the Constitution (21 June 2011).

Senate Legal and Constitutional Affairs References Committee tables final report following inquiry into the provisions of the Water Act 2007 (Cth) (10 June 2011).

Secretary of PM&C Terry Moran delivers address at Eidos Institute on ‘The challenges of federalism’(8 June 2011)

House Standing Committee on Regional Australia tables final report following inquiry into the Impact of the Murray-Darling Basin Plan in Regional Australia (2 June 2011).

COAG Reform Council releases performance report on progress against the National Indigenous Reform Agreement, 2009-10 (8 June 2011).

COAG Reform Council releases performance report on progress against the National Healthcare Agreement, 2009-10 (8 June 2011).

Current public inquiries on federalism issues

Senate Rural Affairs and Transport References Committee, ‘The management of the Murray-Darling Basin’; due to report 30 November 2011.

Joint Committee of Public Accounts and Audit, ‘Inquiry into National Funding Agreements’; no reporting date listed.

Review of GST distribution to the States and Territories: interim report due February 2012; final report due September 2012.

Council of Australian Governments

COAG is the peak intergovernmental forum in Australia, comprising the Prime Minister, State Premiers, Territory Chief Ministers and the President of the Australian Local Government Association (ALGA). Its website contains records of meeting communiqués, intergovernmental agreements and reports.

COAG Reform Council

The COAG Reform Council was established to assist COAG to drive its reform agenda. It does this by strengthening public accountability of the performance of governments through independent and evidence-based monitoring, assessment and reporting. The Council’s website contains a variety of information including its numerous detailed reports.

Commonwealth Grants Commission

One of the Commission’s main roles is to provide advice to the Australian government on the allocation among the States of GST revenue.

Council for the Australian Federation

The Council for the Australian Federation (CAF) is a collaboration between State and Territory Premiers and Chief Ministers, aiming to promote constructive engagement with the federal government and COAG. Its website contains records of CAF meetings, and a repository containing links to academic and policy papers and other websites.

Forum of Federations

The Forum of Federations is an independent organization concerned with the contribution federalism makes and can make to the maintenance and construction of democratic societies and governments. The website hosts a Federalism Library which contains over 800 documents relating to federalism internationally, as well as an archive of the Forum’s magazine, Federations.

‘Federalism in Australia’, Research Project, Griffith University.

This project and website are a joint initiative of Griffith University's Socio-Legal Research Centre, Centre for Governance & Public Policy, and Urban Research Program. The project aims to conduct research into the social, economic and political roots of Australian federalism, as well as directions for reform.

This page showcases research produced as part of the Federalism Project at the Gilbert + Tobin Centre of Public Law, which is funded by the Australian Research Council.

Recent highlights

Tomorrow’s Federation reviewed in (2012) 28(2) Policy as‘an outstanding contribution to federal scholarship’

George Williams writes in the Sydney Morning Herald on local politics and government elections.

Paul Kildea writes in Inside Story on COAG and Federal/State relations.

Andrew Lynch considers the findings of the Expert Panel on Constitutional Recognition of Local Government on Inside Story.

‘Tomorrow’s Federation: Reforming Australian Government’ edited by Paul Kildea, Andrew Lynch and George Williams is now available for purchase from Federation Press.

Paul Kildea, Andrew Lynch, Nicola McGarrity and George Williams make submission to the Expert Panel inquiry into Constitutional Recognition of Local Government

Andrew Lynch and George Williams have been awarded $215,000 in funding by the Australian Research Council for the Centre’s Federalism Project over 2012-14.

Books

P Kildea, A Lynch and G Williams (eds), Tomorrow’s Federation, The Federation Press, Sydney, 2012.

George Williams & David Hume, People Power: The History and Future of the Referendum in Australia (University of New South Wales Press, 2010), 1-303.

Book chapters

'Making Room for Democracy in Intergovernmental Relations' in P Kildea, A Lynch and G Williams (eds), Tomorrow’s Federation, The Federation Press, Sydney, 2012, 73-91.

'Designing Intergovernmental Grants to Facilitate Policy Reform' in P Kildea, A Lynch and G Williams (eds), Tomorrow’s Federation, The Federation Press, Sydney, 2012, 131-151.

‘The Reference Power: The Rise and Rise of a Placitum?’ in P Kildea, A Lynch and G Williams (eds), Tomorrow’s Federation, The Federation Press, Sydney, 2012, 193-209.

'Rewriting the Federation Through Referendum'  in P Kildea, A Lynch and G Williams (eds), Tomorrow’s Federation, The Federation Press, Sydney, 2012, 294-309.

Neil Warren, ‘Intergovernmentalfiscal arrangements as a constraint on State tax reform under Henry’ in CE Evans, JG Head, and R Krever (eds), Australia’s Future Tax System: A Post-Henry Review(Thomson-Reuters, 2010) 305-63.

Refereed journal articles

Shipra Chordia and Andrew Lynch publish ‘Constitutional Incongruence: Explaining The Failure Of The Council Of The Australian Federation’ in (2015) 43 Federal Law Review 339-367.

Shipra Chordia, Andrew Lynch & George Williams, ‘Williams v Commonwealth: Commonwealth Executive Power And Spending After Williams (No 2)’ (2015) 39 Melbourne University Law Review 306-30.

Shipra Chordia and Andrew Lynch, ‘Federalism in Australian Constitutional Interpretation: Signs of Reinvigoration?’ (2014) 33 University of Queensland Law Journal 83-107.

Andrew Lynch, ‘Fortescue Metals Group Ltd v Commonwealth: The mining tax, discrimination and federalism’ (2014) 38 Australian Bar Review 183-202.

David Hume, Andrew Lynch & George Williams, ‘Heresy in the High Court? Federalism as a Constraint on Commonwealth Power’ (2013) 41 Federal Law Review 71-93.

Shipra Chordia, Andrew Lynch & George Williams, ‘‘Williams v Commonwealth — Commonwealth Executive Power and Australian Federalism’ (2013) 37(1) Melbourne University Law Review 189-231.

Andrew Lynch, ‘Commonwealth Financial Powers – Taxation, Direct Spending and Grants – Scope and Limitations’ (2011) 6 Public Policy 23-32.

Andrew Lynch and M Matevosian, ‘Preserving the ‘Federal Balance’ through Judicial Diversity: Clutching at Straws?’ (2011) 13(3) Constitutional Law and Policy Review pp.42-57.

Paul Kildea and Andrew Lynch, ‘Entrenching “Cooperative Federalism”: Is it Time to Formalise COAG’s place in the Australian Federation?’ (2011) 39 Federal Law Review 103 [UNSWLRS version available here].

Andrew Lynch, ‘The Fair Work Act and the Referrals Power – Keeping the States in the Game’ (2011) 24 Australian Journal of Labour Law 1 [UNSWLRS version available here].

Paul Kildea and George Williams, ‘The Water Act and the Murray-Darling Basin Plan’ (2011) 22 Public Law Review 9-14.

Paul Kildea and George Williams, ‘The Constitution and the Management of Water in Australia’s Rivers’ (2010) 32 Sydney Law Review 595-616 [UNSWLRS version available here]

.Paul Kildea and George Williams, ‘Reworking Australia’s Referendum Machinery’ (2010) 35 Alternative Law Journal 22-26.

Andrew Lynch, ‘‘After a Referral: The Amendment and Termination of Commonwealth Laws Relying on s 51(xxxvii)’ (2010) 32(2) Sydney Law Review 363.

Neil Warren, ‘Henry Review, State Taxation and the Federation’ (2010) 43(4) Australian Economic Review 409–21.

Neil Warren, ‘Tax devolution and intergovernmental transfer policy options in a budgetary crisis: UK lessons from Australia’ (2010) 8(2) eJournal of Taxation Research 215–255.

Nicola McGarrity & George Williams, ‘Recognition of Local Government in the Commonwealth Constitution’ (2010) 21 Public Law Review 164-187.

Other articles

Paul Kildea and George Williams, ‘Australia’s Dysfunctional Federation’ (April 2011) Government: Business, Foreign Affairs and Trade 3-5.

Andrew Lynch, ‘State Referrals and Terrorism Law Reform Paralysis: Cause and Effect?’ (2010) 21 Public Law Review 155.

George Williams, ‘The Coming Referendum on the Recognition of Local Government in the Australian Constitution’ (2010) 9 Local Government Reporter107-9.

Conference papers

A Lynch, ‘Williams v Commonwealth’, 2012 Government Solicitors Conference, Law Society of New South Wales, Sydney, 28 August 2012.

A Lynch, ‘National Priorities and State Referrals: The Age of Section 51 (xxxvii)’, Sixteenth Public Law Weekend – ‘10 Years on from September 11: the Impact on Public Law’, ANU, 10 September 2011.

Paul Kildea and Andrew Lynch, ‘COAG, the Constitution and Accountability’ (Paper presented at the 3^rd Annual Intergovernmental Relations Conference, National Convention Centre, Canberra, 16-17 August 2011)

Andrew Lynch, ‘Commonwealth Financial Powers – Taxation, Direct Spending and Grants – Scope and Limitations’(Paper presented at the Constitutional Centre of Western Australia, Power & Politics Conference, 2-3 July 2011)

Neil Warren, ‘Utilising Grants to Facilitate Policy Reform: A Case for Depooling Repooled Grants’, Federalism Research Roundtable, Faculty of Law, UNSW, Sydney, 24-25 March 2011.

Paul Kildea, ‘Making Room for Democracy: Towards Greater Transparency, Accountability and Participation in Intergovernmental Relations’, Federalism Research Roundtable, Faculty of Law, UNSW, Sydney, 24-25 March 2011.

Andrew Lynch, ‘The Reference Power: The Rise and Rise of a Placitum?’,Federalism Research Roundtable, Faculty of Law, UNSW, Sydney, 24-25 March 2011.

George Williams, ‘Federal Reform by Way of a Referendum’, Federalism Research Roundtable, Faculty of Law, UNSW, Sydney, 24-25 March 2011.

Paul Kildea & Andrew Lynch, ‘Federalism at the Sub-constitutional Level: The Case of the Council of Australian Governments’, VIIIth World Congress of the International Association of Constitutional Law, Mexico City, 6-10 December 2010.

Neil Warren, ‘Fiscal Federalism Transparency and State Leadership on Reform’, Paper presented at the ANZSOG 4th Annual Public Leadership Workshop, Parliament House, Hobart, 25-26 November 2010.

George Williams, ‘The Constitution and Property Rights’ NSW Department of Environment, Climate Change and Water Seminar, Sydney, 8 October 2010.

Paul Kildea and Andrew Lynch, ‘Entrenching ‘Cooperative Federalism’: Is It Time To Formalise COAG’s Place In The Australian Federation?’, Conference of the Australian Political Studies Association, University of Melbourne, 27-29 September 2010.

Neil Warren, ‘The challenge of managing the disproportionate regional impact of the GFC on the Australian Federation’, Paper Presented at the Federalism and the Global Financial Crisis: Impacts and Responses at the 2010 Concurrent Meeting of the International Association of Centers for Federal Studies and IPSA Research Committee on Comparative Federalism and Federations, Philadelphia, 16-18 September 2010.

Neil Warren, ‘Tax devolution and intergovernmental transfer policy options in a budgetary crisis: UK lessons from Australia’, Paper Presented at the Tax Research Network 19th Annual Conference on Tax in Troubled Times held at Bangor University, Wales, United Kingdom, 7-8 September 2010.

George Williams, ‘Land and Water Rights and the Law’ National Farmers’ Federation 2010 National Congress, Melbourne, 7 September 2010.

Paul Kildea, ‘The Future of the Council of Australian Governments’, Annual Conference of the Institute of Public Administration Australia (NSW), Sydney Convention Centre, Sydney, 22 July 2010.

George Williams, ‘Opening Address: Property Rights and Just Terms Compensation’ NSW Farmers Association Annual Conference, Sydney Olympic Park, 20 July 2010.

Neil Warren, ‘Intergovernmentalfiscal arrangements as a constraint on State tax reform under Henry’, Paper presented at Conference on ‘Australia’s Future Tax System: A Post-Henry Review’, Sydney, 21-23 June 2010.

George Williams, ‘The Constitutional Recognition of Local Government’ 2010 National General Assembly of Local Government, National Convention Centre, Canberra, 16 June 2010.

Andrew Lynch, ‘The Fair Work Act – The Referrals Power Comes to the Rescue Once More’, Public Lecture, ANU College of Law, Australian Labour Law Associations and Industrial Relations Society of the ACT, Australian National University, Canberra, 24 March 2010.

George Williams, ‘The Constitution and the Management of Water in Australia’s Rivers’, Supreme and Federal Courts Judges’ Conference, Hyatt, Canberra, 25 January 2010.

Submissions to public inquiries

Shipra Chordia, Paul Kildea, Andrew Lynch, Nicola McGarrity and George Williams make a submission to Joint Select Committee on Constitutional Recognition of Local Government on Inquiry into constitutional recognition of local government, 14 December 2012.

Paul Kildea, Andrew Lynch and Robert Woods, Submission to the Joint Committee of Public Accounts and Audit, Inquiry into National Funding Agreements, 7 April 2011.

Paul Kildea and George Williams, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Provisions of the Water Act 2007, 16 March 2011.

George Williams, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Commonwealth Bill) 2010.

Paul Kildea and George Williams, Submission to House Standing Committee on Regional Australia, Inquiry into the Impact of the Murray-Darling Basin Plan in Regional Australia, January 2011.

Paul Kildea & George Williams, Submission to Senate Standing Committee on Rural Affairs and Transport, Inquiry into the Management of the Murray-Darling Basin, January 2011.

Paul Kildea, Andrew Lynch & George Williams, Submission to the Senate Select Committee on Reform of the Australian Federation, August 2010.

Paul Kildea, Andrew Lynch & George Williams, Submission to the Senate Standing Committee on Environment, Communication and the Arts, Inquiry into the Water (Crisis Powers and Floodwater Diversion) Bill 2010, June 2010.

Paul Kildea and Andrew Lynch, Submission to the National Human Rights Consultation Committee, 27 May 2009.

Neil Warren appeared before a Parliament of Victoria Inquiry into State Government Taxation and Debt, Economic Development and Infrastructure Committee, 29 October 2010.

Media

Shipra Chordia, 'Murray-Darling: why Australia needs intergovernmental cooperation', the Conversation 30 October 2012

Andrew Lynch, ‘School chaplains decision opens can of worms for federal funding’ The Australian (3 July 2012).

Andrew Lynch, ‘All politics isn’t necessarily local’, Inside Story (10 January 2012).

George Williams, ‘A state of confidence up north as NT moves towards adulthood’Sydney Morning Herald, 19 July 2011.

George Williams, ‘Chaplaincy challenge reveals legal failure’Sydney Morning Herald, 24 May 2011.

George Williams, ‘O’Farrell needs to prove that states can do things better’ Sydney Morning Herald, 29 March 2011.

Paul Kildea and George Williams, ‘COAG: How to turn a “parking lot for tough decisions” into something really useful’, The Conversation, 24 March 2011.

George Williams, ‘Nothing to fear but timidity in Brown’s bill’ Sydney Morning Herald, 15 March 2011.

George Williams, ‘COAG needs to be loved and nurtured’ Sydney Morning Herald, 16 February 2011.

George Williams, ‘Reform of pokies tests Gillard deal with Wilkie’, Sydney Morning Herald, 1 February 2011.

Paul Kildea, ‘Referendum education must start without delay’, Australian Financial Review, 16 November 2010.

George Williams, ‘When water pours into legal minefields’, Sydney Morning Herald, 26 October 2010.

George Williams, ‘States could legalise same-sex marriage’, Sydney Morning Herald, 28 September 2010.

George Williams, ‘Too rich, too weak to succeed seceding’, Sydney Morning Herald, 11 May 2010.

Paul Kildea and Andrew Lynch, ‘Healthy Cooperation’, The Drum (ABC), 14 April 2010.

Paul Kildea, ‘Abbott’s Populist Federalism Pitch No Silver Bullet’, Crikey, 22 January 2010.

Neil Warren, ‘With GST Ruled Out Tax Reform Limited’, The Australian, 23 October 2009.

George Williams, ‘Health Reform Needs a Federal Fix First’, Sydney Morning Herald, 28 July 2009.

George Williams, ‘High Court Casts Shadow on Canberra’s Lofty Vision’, Sydney Morning Herald,9 July 2009.

George Williams, ‘One Man’s Rare Win for States’ Rights may Ring Hollow’, The Age, 9 July 2009.

George Williams, ‘Work Choices Flaw Lives on in Industrial Relations Law’, Sydney Morning Herald, 20 May 2009.

George Williams, ‘Challenge to Bonuses has its Merits’, Sydney Morning Herald, 20 March 2009.