Guy, Scott --- "Overcoming the Institutional and Constitutional Constraints of Australian Federalism: Developing a New Social Democratic Approach to the Federal Framework" [2006] FedLawRw 11; (2006) 34(2) Federal Law Review 319

OVERCOMING THE INSTITUTIONAL AND CONSTITUTIONAL CONSTRAINTS OF AUSTRALIAN FEDERALISM: DEVELOPING A NEW SOCIAL DEMOCRATIC APPROACH TO THE FEDERAL FRAMEWORK

Scott Guy^[*]

INTRODUCTION

This article investigates the possibilities for promoting and implementing a more progressive or essentially social democratic political and constitutional agenda within the existing institutional and constitutional constraints of federalism. Although this question has been a long debated and much discussed one in social democratic political and constitutional theory, this article seeks, indeed, to bring new light to this (traditional social democratic) perspective by emphasising the potential advantages of federal theory and the federal structure for a developing and contemporary social democratic agenda. Particular attention is devoted to the progressive possibilities which inhere in the States and their accompanying (State) constitutions and the consequent potential which State constitutionalism has to support a renewed and more distinctively progressive political (and constitutional) practice. The presence, at this time, of a conservative federal government and Labor governments in all of the States indicates an important need for theorists on the Left to re-evaluate the efficacy of the States in promoting a more progressive agenda and to reassess the extent to which the 'dual' character of federalism may, in fact, be facilitative of essentially social democratic objectives.

Accordingly, the purpose of this article is to determine if a more distinctively social democratic agenda or practice can be realised within the existing Australian federal structure and to investigate what constitutional and political mechanisms can potentially be used to promote or support a more interventionist, regulatory and social democratic constitutional and political framework. This article, therefore, discusses the possibilities of achieving a distinctively social democratic practice in the context of the existing federal constitutional structure.

The article (first) introduces and develops an ideal social democratic federal model ─ one that can be subsequently applied to the current Australian federal structure to ascertain precisely what constitutional room exists for the realisation of a distinctively social democratic agenda.^[1] This ideal model which is developed in the first section repudiates the more traditional Marxian or social democratic commitment to a unitary framework^[2] where there are few institutional checks on governmental power. It (thus) seeks to make a contribution to the existing social democratic literature on federalism. Such a model is then applied to the federal structure to gauge the progressive or social democratic possibilities which inhere in Australian federalism.

Attention then shifts to the impediments that Australian federalism presents for a social democratic agenda and how these require the identification of new federal institutional mechanisms that have capacity to promote a more active and potentially progressive role for the Commonwealth. One mechanism that would appear to have potential to facilitate an interventionist federal role is the instrument of federal cooperation or what is called 'cooperative federalism.' As an examination of recent intergovernmental agreements will illustrate, federal cooperation is able to secure potentially transformative ends which the Commonwealth and States, individually, are unable to realise.^[3] Attention is also accorded to other distinctively constitutional mechanisms of cooperation, such as the reference power.^[4] As will be seen, however, constitutional cooperation between the Commonwealth and the States in order to secure important (social democratic) objectives, such as the reference of State powers to federal Parliament, would appear to be unrealistic and, in the end, unattainable.

This highlights the ultimate limits of a commitment to pursuing progressive reform at the federal level (for legal theorists and practitioners on the Left) and draws attention to the need for developing pragmatic and essentially practically achievable strategies in the State realm. In this respect, the article seeks to draw a key distinction between effectuating more principled and, essentially, idealistic social democratic strategies in the federal realm and formulating more pragmatic and realistic programmes in the State sphere. In effect, where social democratic agendas are unable to be practically implemented in the federal realm they may, nevertheless, still be capable of effective, but more qualified, realisation at a purely State level. This contention is particularly relevant in a contemporary Australian political context where the federal government is pursuing an essentially conservative or neo-liberal agenda.

As will be shown, the transformative possibilities of State constitutionalism and State constitutional arrangements are particularly evident in American constitutional discourse where progressive theorists are focusing greater attention on the practical potential which inheres in State constitutional processes to promote reformist agendas. It will be suggested that the American experience indicates that where social democratic programmes cannot be satisfactorily realised through principled and more traditional means (via federal constitutional mechanisms) such programmes can still be effectively achieved or realised at a State level. The implications that this tradition of American State constitutionalism (or judicial federalism) has for a pragmatically-oriented progressive constitutional discourse and political practice in Australia will occupy considerable attention in this paper.

In drawing attention to the essentially pragmatic possibilities of the States and State constitutionalism in Australia, consideration also needs to be accorded to the fiscal realities of the Australian federal structure and how this tends to militate against the development of a distinctively progressive or social democratic discourse at the State level. As will be pointed out, the significant 'vertical fiscal imbalance' that presently characterises Australian federal arrangements would appear to preclude a more visible and social democratic role for the States.^[5] In this respect, it will be argued that without some degree of fiscal decentralisation it seems unlikely that a pragmatic State constitutionalism of the type that is presently developing in the United States can emerge in Australian federal arrangements.

As will be seen, this commitment to greater fiscal autonomy for the States raises (consequent) issues regarding the potential implications of fiscal decentralisation for a more pragmatic progressive approach and leads to the concern as to whether a fiscally decentralised (and 'competitive') federal framework could give rise to regressive and essentially neo-liberal outcomes. It has been argued, in this respect, that fiscal decentralisation has the potential to produce a situation where there is a 'race to the bottom' in which there are diminishing levels of public sector spending and social assistance.^[6] If this is the case then, clearly, the pursuit of more pragmatic strategies through the mechanism of the States could be perceived as being counter-productive on the part of legal practitioners on the Left. This issue, therefore, deserves significant attention and is, accordingly, the subject of investigation in this article.

An alternative, but ultimately unrealistic, approach to the federal framework rests in constitutional amendment where the States are abolished and a (resultant) unitary structure is established. Such a course of action has been a longstanding objective of social democratic and progressive scholars and has been regarded as an essential pre-condition for the development of a genuinely social democratic agenda.^[7] However, as will be shown, this goal of national unification confronts not only significant practical obstacles, but also important constitutional impediments. It is arguable that the federal Constitution does not authorise the fundamental constitutional reforms needed to effectuate the type of unitary structure that has been advocated by such scholars as Gordon Greenwood and Harold Laski.^[8]

DEVELOPING A PRINCIPLED OR IDEAL SOCIAL DEMOCRATIC APPROACH TO FEDERALISM

The purpose of this section is to examine the compatibility of federalism and, more particularly, the Australian federal framework with the pursuit of a social democratic agenda. The central issue underpinning the discussion, therefore, is: Can a social democratic agenda be realised within the constraints of the existing federal framework and what institutional mechanisms can be utilised to promote a more progressive governmental role? Social democracy's traditional (and essentially idealistic) concern with centralised forms of regulation requires an examination of the potential federal political and constitutional mechanisms that can be utilised to activate a progressive agenda.

MODELS OF FEDERALISM: DEVELOPING A NEW SOCIAL DEMOCRATIC FEDERAL PARADIGM

To facilitate the formulation of an ideal social democratic framework, two contrasting models are considered which have formed the dominant social democratic approaches to federalism. These (models) are the essentially unitary constitutional paradigms that are advocated by Greenwood and Laski^[9] and, alternatively, the more contemporary federal approaches that have been promoted by (both) Brian Galligan and the American republican tradition.^[10] It is this latter federal paradigm that is the preferred approach adopted here and which will be used to investigate whether a distinctively social democratic agenda is capable of operation within the existing Australian framework.

The more traditional (social democratic) paradigm involves an effectively unitary approach and this has its origins in the theoretical works of Greenwood and Laski.^[11] This model perceives federalism in Marxian and deterministic terms as a transitional constitutional structure evolving into a more centralised or essentially unified framework.^[12] It associates federalism with (stages of) liberal capitalism and while a federal constitutional structure was appropriate in an era of nineteenth century liberal capitalism, the organised and more centralised nature of capitalism is believed to require an increasingly unitary constitutional structure.^[13] Such an approach, therefore, is essentially deterministic and historicist in nature and closely reflects the Marxian belief that changes in the economic structure facilitate (inevitably) changes in the overriding constitutional and political structure.^[14]

As well as the Marxian commitment to the contingent nature of federalism, this more traditional approach is also concerned to promote a framework of centralised political governance where there is unfettered or untrammelled governmental intervention and where the controlling principle of constitutionalism is one centred on majoritarian democracy. Laski, in particular, is keen to demonstrate in his writings that 'the true source of decision-making is no longer at the circumference of, but at the centre of the state,'^[15] while Greenwood seeks to emphasise 'the evil effects of the division of powers'^[16] and the (consequent) need to effect a situation where there is a national government with significantly extended powers.^[17]

In this respect, there appears to be little room for constitutional checks on government power and little scope for the incorporation of an institutional role for the market in this unitary model. The notion of constitutionalism in Laski's approach, for example, is perceived to be antithetical to the need for government intervention and to the idea of majoritarianism on which his concept of democracy is based. According to Laski, for example, 'the Constitution inhibits the federal government from exercising the authority inherent in the idea of democracy.'^[18] Similarly, the commitment to promoting Keynesian economic regulation and national planning is considered to militate against any requirement for constitutional restraints on governmental power or any possibility for a significant institutional role to be performed by the market in Greenwood's framework.^[19] Greenwood emphasises, in this regard, the prejudicial impact which the (rigid) federal division of powers has had on the implementation of social democratic agendas.^[20]

Another feature of this unitary framework is the commitment to achieving uniformity and to realising genuinely national standards of conduct. Such a model rejects any need for institutional diversity or regional difference. Laski, for example, perceives the implementation of uniform standards as being intrinsically desirable and one that is undermined by federalism's concern with multiple levels of governance.^[21] Similarly, Greenwood considers the achievement of uniform standards in industrial conditions, health, education and housing as being fundamentally advantageous and one that necessitates the development of a more centralised constitutional structure.^[22]

Hence, clear associations are drawn in this unitary paradigm between the desirability of state intervention, the need to limit judicial intrusion in the political process, and the importance of uniform and unconstrained public regulation. However, as will be later shown, a contemporary social democratic model needs to embrace a commitment to some role for constitutional and market processes in restraining political power and (also) needs to acknowledge the requirement for, at least, some degree of institutional diversity and decentralisation in a constitutional structure.

An additional characteristic of this unitary constitutional paradigm is the commitment to realising social democratic outcomes and to promoting interventionist and socially desirable ends. Greenwood, in this respect, perceives constitutionalism in instrumental terms as a mechanism for facilitating government regulation and as an instrument for effectuating particular substantive, or socio-economic, outcomes.^[23] This concern with utilising the constitutional process to promote distinctively progressive ends is an important feature of the social democratic model advanced in this article and one that could be incorporated in a progressive federal (as opposed to unitary) framework. The American republican^[24] and 'judicial federalist'^[25] traditions, as well as the federal paradigm developed by Galligan,^[26] draw attention to the potentially progressive nature of federal constitutional arrangements and how they can, in fact, be facilitative of desirable social and economic ends. It is this federal constitutional paradigm to which attention is now turned.

A federal constitutional framework, on which a social democratic approach could be based, has been developed in an Australian context by Galligan,^[27] as well as by American republican theorists.^[28] This approach is essentially at odds with Laski's and Greenwood's commitment to a unitary constitutional framework and accepts (and, indeed, promotes) federalism and the constitutional division of responsibilities in a federal structure. It not only acknowledges the pragmatic need to develop a social democratic model that operates within the existing federal constitutional structure, but also emphasises the fact that there are features which inhere in a federal framework facilitative of a progressive agenda. Such a (federal) paradigm would also seem to promote a positive institutional role for the judiciary, as well as the free market.

A central feature of this federal model and one compatible with a more progressive or social democratic approach is its commitment to ensuring the implementation of appropriate institutional procedures or mechanisms within which the political process is to operate. Galligan argues (in his federal paradigm) that federalism's concern with the development of appropriate processes and procedures should be considered to be intrinsically desirable, regardless of the (substantive) outcomes that it produces.^[29] This commitment to the need for proper constitutional and political processes could be perceived as being an essential pre-condition for a contemporary social democratic federal model. Yet, while this concern with implementing proper federal processes is a central element of a social democratic framework, it is clearly insufficient, in itself, in facilitating a progressive agenda. There also needs to be an explicit commitment to promoting more progressive (or social democratic) ends. This pragmatic concern with pursuing more progressive goals is one that is particularly evident in the American 'judicial federalist'^[30] tradition and is examined in greater detail later in the article.

Another feature of this federal framework is its concern with national and regional centres of political governance and the capacity for this federal division to promote the concepts of citizenship and citizen participation.^[31] As Cass Sunstein emphasises, where a particular social group is unable to gain adequate representation at one level of government it may, nevertheless, have the opportunity of representation at a different level in the political process.^[32] In this respect, this version of federalism provides safeguards and protections for marginalised social groups which have the potential, in effect, to be excluded from involvement in the political process.^[33] Viewed in this context, then, federalism would seem to perform a significant role in contributing to more socially just and politically desirable outcomes ─ ones which are consistent with a more progressive or social democratic political and constitutional agenda.

An additional characteristic of this federal model conducive to a developing social democratic framework is its commitment to diversity. An important theoretical distinction is drawn in Galligan's federal model between the competing ideals of unity and uniformity with his approach committing to the former principle and eschewing the latter one.^[34] In emphasising the need to accommodate disparate socio-economic interests (through the federal division of constitutional power) Galligan's approach can accommodate not only the economically and socially powerful, but also those groups who have been marginalised and excluded from the political process.^[35] In this respect, the modern federal paradigm clearly has the potential to perform an important institutional role in incorporating those members of society with which a more progressive or social democratic theory most clearly identifies and aligns.^[36]

Furthermore, this commitment to institutional (and regional) diversity, within modern federal arrangements, can promote a more stable and enduring social democratic framework. Galligan contends that federalism's abiding concern with multiple centres of governance can, in fact, contribute to the stability and the longevity of the modern constitutional structure.^[37] His thesis would suggest that a more permanent or enduring framework needs to be based on federal, as opposed to unitary, arrangements. In this context, Galligan's highly persuasive contention regarding the longevity of federal arrangements tends to undermine the more traditional and essentially historicist claims made by Greenwood and Laski that federalism will inevitably be succeeded by a more stable unitary constitutional structure better suited to the (centralised) nature of the modern economy.^[38]

Another distinctive feature of this federal constitutional approach that appears well-suited to a developing contemporary social democratic agenda is the close association drawn between the presence of a federal framework and the promotion of economic growth and development.^[39] A productive (market) economy is an important pre-condition for generating the type of socio-economic rights and entitlements central to a developing social democratic constitutional approach.^[40] The federal emphasis given to multiple centres of political governance can perform a particularly important role in promoting a decentralised market economy ─ one that is considered essential in promoting economic growth and economic affluence. While this association between federalism and the market could potentially undermine a social democratic agenda, it also has (as Sunstein argues) the undoubted effect of facilitating the economic growth which is necessary for developing a more progressive and egalitarian agenda.^[41]

This draws attention to another aspect of this federal framework that is particularly adapted to the social democratic approach advanced here, which is its commitment to promoting a free market economy. Jonathan Rodden and Susan Rose-Ackerman, for example, outline the 'market-preserving' nature of federalism and construct, in consequence, an association between the decentralising tendencies of federalism and the preservation of a private market realm.^[42] In this respect, contemporary federal theory appears to be superior to the more traditional Marxian approaches of Greenwood and Laski, who have rejected the development of an institutional role for the market.^[43]

An additional feature of this federal paradigm that seems to be particularly facilitative of a social democratic approach is its commitment to public accountability and its abiding concern with the importance of institutional checks and balances on government power. A key aspect of Sunstein's federal model, for example, is its preservation of what he terms 'the right of exit' where the individual has the option of leaving one political centre for an alternative one in cases where he or she is being oppressed or victimised by the State.^[44] An implication of Sunstein's federal model is that where the policies of one State produce economic hardship and social injustice, then the citizen may simply transfer to another State where they are more facilitative of individual welfare and liberty. In this respect, it is arguable that competition produced between various State governments, within Sunstein's federal framework, could contribute to a more socially just and egalitarian framework.^[45]

An additional aspect of this contemporary (progressive) federal model and one particularly conducive to a social democratic framework is its commitment to a role for State government regulation and intervention.^[46] It is later shown that the State constitutional tradition in the United States has drawn attention to the potentially interventionist and social democratic governmental roles that can be conceived for the States within the federal framework. Where, for example, social democratic agendas cannot (ideally) be achieved at a federal level then this may not necessarily preclude the more pragmatic realisation of these agendas at a State or regional level.^[47] In this respect, then, contemporary federal theory could provide considerable room for the achievement of an essentially practical social democratic agenda — one that contrasts with the idealistic and unrealisable programmes of Laski and Greenwood that centre on the belief in national unification.

In short, then, the federal model adopted here is essentially progressive and pragmatic in orientation ─ one that seeks to accord an institutional role for the market within its structure and one that also emphasises the need for some degree of decentralisation and institutional diversity. This approach, in essence, does not consider the (absolute) centralisation of government power as an unqualified good, nor does it perceive the objective of strict national uniformity as unequivocally desirable. It acknowledges, in this context, that federalism's commitment to such institutional qualities as diversity, participation and accountability are ones that are intrinsically desirable and facilitative of a contemporary social democratic programme. Yet, the federal model developed here retains the more traditional (social democratic) commitment to government intervention and continues to reflect the abiding social democratic concern with the realisation of desirable social and economic objectives by seeking to achieve such ends through, for example, State, as well as federal, processes. The contribution that the States can play in facilitating a distinctively regulatory social democratic agenda will be the subject of significant attention later in the article.

The section now investigates whether this ideal social democratic federal model can be realised within the constraints of the present Australian federal structure. It focuses attention on the potential impediments which the Australian constitutional framework could present for implementing the type of social democratic federal model which has been developed here. This is followed by an examination of the institutional mechanisms that can be utilised (at the federal level) to overcome these deficiencies in the constitutional structure and which can be activated as a means of facilitating a more social democratic federal role.

THE INSTITUTIONAL CONSTRAINTS OF AUSTRALIAN FEDERALISM

The Australian federal structure presents several impediments for the development of a more progressive and essentially social democratic approach and agenda. In particular, the Constitution's commitment to a federal division of powers and its consequent allocation of only particular economic powers to the federal Parliament tends to inhibit comprehensive political and institutional control over the economy.^[48] Similarly, its concern with a distribution of functions between the Commonwealth and States tends to militate against the development of interventionist and coordinated government policies.^[49] Moreover, the Australian federal structure's commitment to constitutional arrangements that check the exercise of national power tends to reduce the Commonwealth's institutional capacity to secure desirable (social democratic) political outcomes. The presence of the federal Senate, for example, has often been considered (particularly by former Labor politicians) as an institutional impediment to transformative and dynamic political and constitutional change.^[50]

It is important to note that the more progressive framers drew attention to federalism's limitations for an interventionist and potentially social democratic role for the Commonwealth when drafting the Constitution.^[51] The significant powers that were envisaged for the Senate during the Convention Debates led Henry Bournes Higgins, in particular, to reject the Constitution Bill.^[52] Similarly, another more progressive delegate, Isaac Isaacs, asserted that the federal arrangements would have the eventual effect of circumscribing commercial regulation and would ensure an essentially 'provincialist' orientation.^[53] His subsequent experience of Australian federalism led him to advocate amendment and to call for the introduction of a more centralised constitutional framework.^[54] The fact that the more progressive framers expressed concerns over the confined nature of the federal structure indicates that even in the 1890s doubts were, in fact, already being raised over the social democratic possibilities of the Constitution's framework.

Furthermore, in a contemporary context, many of the purported and essentially social democratic advantages that federalism has been thought to bring to the Australian constitutional framework have tended to be over-stated and need to be qualified.^[55] In particular, doubt should be cast on the claim that Australian federalism has been more sensitive to minority rights and rights of individual political participation. It has been pointed out, in this context, that the federal division of powers in Australia has produced social inequality and economic injustice ─ consequences that can only be addressed by a more significant and interventionist role for Federal Parliament.^[56]

One manifestation of this inequality and injustice produced by Australian federal arrangements has been the absence of governmental regulation in the important areas of health, education and indigenous affairs. James Gillespie, for example, points out that, during the 1990s, the States failed to adequately regulate and protect the rights of the poor and marginalised.^[57] In this context, he emphasises that it was mainly due to direct federal intervention that the rights and the interests of dispossessed indigenous groups were secured. Viewed from this perspective, then, it would appear that federalism's support for State autonomy has not translated into greater protection for individual rights and civil liberties.

Similarly, it is open to question whether federalism's commitment to decentralisation and the devolution of power has significantly promoted the (social democratic) ideals of diversity and tolerance that have been emphasised by progressive theorists, such as Galligan and Sunstein.^[58] Regional political communities may often be less tolerant of, and sensitive to, political diversity than more centralised political communities. This deficiency has also been particularly noted in the federal constitutional structures of Canada and the United States where, according to Robert Howse, the commitment to more decentralised federal arrangements has not translated into greater sensitivity to political and cultural diversity, or resulted in greater social, as well as cultural, tolerance.^[59]

In a related context, qualifications also need to be placed on the institutional capacity of Australian federalism to promote democratic participation in the political and wider public realms. State and regional centres have been claimed to devalue the ideals of citizenship and public virtue central to a social democratic model.^[60] This tendency has also been observed in American constitutionalism where, according to Susan Rose-Ackerman, political debate and participation has frequently been motivated by private self-interest than by any commitment to public spiritedness and civic virtue.^[61] An implication of Rose-Ackerman's analysis is that centralised federal structures are often more consistent with civic virtue and political participation than decentralised ones. This would seem to require, in an Australian constitutional context, a continuing degree of centralised government intervention. The belief, then, that decentralised federal arrangements can produce greater political participation and heightened civic virtue should be qualified and a contemporary social democratic paradigm needs to embrace a significantly centralised federal role in a constitutional model.^[62]

Federalism's concern with multiple and decentralised centres of political power can also compromise the capacity for a distinctively Australian social democratic model to redistribute resources and reallocate national wealth. The federal commitment to State autonomy, for example, has potential to inhibit federal Parliament's centralised capacity to transfer resources to less affluent sectors of the nation.^[63] In this respect, the Australian federal structure has potential to constrain the promotion of economic equality and to inhibit the pursuit of social and economic justice ─ objectives that are central to a developing social democratic agenda.

This leads to concerns regarding the Australian federal structure's compatibility with a more regulatory and interventionist political programme. As previously emphasised, a theoretical association has tended to be drawn between federalism and the maintenance of the free market.^[64] While federalism may be facilitative of a new and more market-oriented social democratic model, this association between it and the market may be taken too far so as to undermine the social democratic commitment to a more interventionist constitutional framework. A perceived virtue (according to liberal theorists) of the Australian federal structure is that it militates against State intervention and that it prevents government from unduly intruding in the operation of the free market.^[65] This commitment to the market-oriented nature of federalism draws attention to the libertarian paradigm of Wolfgang Kasper, who associates the federal framework with inter-State competition and with resultant diminishing levels of government regulation and public sector investment.^[66] Viewed from this perspective, the Australian federal structure could serve to inhibit significantly public intervention and to stymie the development of social democratic policy programmes.

This draws attention to the important point that there are particular regulatory and economic functions that may only be capable of effective performance at a federal or national level and that cannot be performed in the State realm. Primary economic and welfare functions, it would seem, can only be performed in a social democratic framework by national governments and, therefore, substantial resources and revenue will need to be directed to the federal level. Economic management, in this respect, would appear to be an activity intrinsically federal in orientation and one that would seem to be most effectively performed by federal government.

In this context, a social democratic approach may need to accord primary attention to the federal (as opposed to State) level. For example, if the central objective of a social democratic model is to ensure national and uniform standards of regulation and conduct, then primary emphasis should be accorded to the federal Constitution. James Gardner, in this context, seeks to particularly emphasise the 'dangers of a robust State constitutionalism'^[67] arguing that persuasive reasons are present for preferring an approach that accords priority to federal constitutionalism.^[68]

The States may, in this respect, be inappropriate institutional forums for the provision of welfare and other related social and economic services. When consideration is accorded to such practical considerations as the need for uniform distribution and delivery of public goods, it may be preferable for progressive attention to be directed to the federal realm.^[69] Accordingly, it is suggested that commitment to the dual nature or character of federalism should not neglect a more principled and overriding concern with effectuating (progressive) reform at the federal or national level.

A consideration, then, of the general institutional constraints that are imposed by the Australian federal framework suggests that qualifications need to be placed on the possibilities that inhere in current federal arrangements. It draws attention to the fact that if a more progressive agenda or framework is to be effectively implemented, then new (political and constitutional) strategies at federal and State levels will need to be developed.

Accordingly, there is a need to identify mechanisms that can promote enhanced federal coordination and regulation. This commitment to the implementation of institutional mechanisms at the federal level (which can promote the centralisation of government power and that can provide a basis for expanding federal intervention) is a longstanding social democratic objective and one to which attention is now turned.

THE CENTRALISING AND INTERVENTIONIST POSSIBILITIES OF FEDERAL COOPERATION

Social democracy's traditional (and idealistic) commitment to the centralisation of political authority and the extension of the regulatory or institutional reach of the state can be effectuated through the simple mechanism of federal cooperation ─ or what is termed 'cooperative federalism'. The potential, in this respect, for federal cooperation to facilitate greater national coordination and intervention in the economy has been widely acknowledged. In 1925, for example, Felix Frankfurter and James Landis drew attention (in the United States) to the regulatory and interventionist possibilities of using the combined legislative powers of Congress and the States.^[70] Similarly, in 1952, the leading Australian federal theorist, S R Davis, noted that:

the unmistakeable trend in Australian government is in the direction of extensive inter-governmental co-operation and co-ordination under the impetus and leadership of the Commonwealth.^[71]

Recent developments in Australian federalism have provided indications of the extent to which joint cooperation can overcome the deficiencies of federalism and facilitate government regulation.^[72] During the 1990s, for example, several inter-governmental agreements (relating to commerce and transport) were formed promoting coordinated and uniform regulatory governmental action.^[73] These agreements were concluded under the auspices of two intergovernmental forums ─ the Special Premiers' Conference ('SPC') and the Council of Australian Governments ('COAG').

According to Martin Painter, these inter-governmental commitments promoted a new and distinct era of what he terms 'collaborative' federalism.^[74] Characteristic of this 'collaborative' form of federalism was an increasing tendency for State and federal governments to achieve national regulatory outcomes through joint legislative (and executive) action.^[75] Collaborative federalism has drawn attention to the importance of joint political and institutional action in securing social democratic political outcomes. These could not have been constitutionally realised by action on the part of one (or other) governmental sphere alone.^[76]

Painter identifies a changing federal philosophy and federal practice where State and Commonwealth institutions are permeated by 'collaborative' norms or values.^[77] He notes that inter-governmental agreements are increasingly prohibiting parties from unilaterally vetoing or withdrawing from federal agreements.^[78] Painter also observes that inter-governmental agreements are tending to mandate the establishment of institutional arrangements that promote, in turn, jointly agreed policy objectives and outcomes.^[79] In this respect, Painter demonstrates that inter-governmental cooperation is tending to produce a fundamental change in the underlying dynamics of Australian federalism ─ one where federalism is moving away from an 'arm's length' or 'coordinate' model to a more centralised and interventionist structure.^[80]

Painter's analysis of recent trends in Australian federalism is particularly relevant for a social democratic approach to federalism. If (as Painter claims) federalism is being transformed into a more 'collaborative' and essentially 'regulatory'^[81] institutional structure, then it appears that the need for amendment to the federal constitutional framework (in favour of a centralised or unitary structure) is obviated. The underlying theme of Painter's writings, in this respect, is that the expanding nature of federal cooperation is promoting greater institutional control over (or 'steering' of) the economy.^[82] The implication of this for a developing social democratic paradigm is that (increasing) government control and national coordination can be realised within the constraints of the federal framework. Clearly, then, this would indicate that a more social democratic framework (or approach) is capable of realisation without the need for radical constitutional amendment and without the need for establishing a unitary constitutional structure.

The regulatory (and social democratic) potential of inter-governmental cooperation is particularly reflected in the recent health and housing agreements reached between the States and the Commonwealth.^[83] One such agreement that has promoted national regulation is the 'Commonwealth-State Housing Agreement' which can be found in the Housing Assistance Act 1996 (Cth).^[84] According to the terms of this Agreement, the Federal Government is to provide financial grants to the States who, in return, are required to promote 'core Social Housing' and to assist those who are unable to access alternative housing arrangements.^[85] The Agreement, in this respect, attempts to secure several particularly social democratic political objectives. These objectives, it should be emphasised, could not have been achieved by the Commonwealth alone. They are, indeed, an excellent example of how inter-governmental cooperation can overcome the 'coordination' problems inherent in the federal constitutional structure and can promote a more significant and centralised federal role.

As part of its objectives, the Agreement seeks to improve housing outcomes for the Aboriginal community^[86] and to promote 'non-discrimination' in the provision of publicly provided housing.^[87] The Agreement also aims to encourage the development of public housing services.^[88] It acknowledges that the promotion of these public ends can only be achieved through federal cooperation since there is no constitutional head of power that enables the (federal) regulation of public housing.^[89]

In this respect, the Housing Agreement is an example of how federal cooperation can be used to overcome the deficiencies inherent in the federal structure and how it can be employed to promote a more interventionist federal role. The provision of public housing, for example, is a particularly important social democratic objective that (in spite of the absence of any federal 'housing' power) can still be realised through the process of inter-governmental agreement.

However, while cooperative federalism can facilitate political forms of cooperation, it cannot promote constitutional means of cooperation and support (for example) an increasingly centralised judicial framework. In this respect, the principle is clearly limited in its potential to promote a more centralised federal framework since it has been held to have no application to the federal Constitution and to constitutional interpretation. These limits and the potential for cooperative federalism's future use as a constitutional (as opposed to a political) principle are now examined.

THE LIMITS OF COOPERATIVE FEDERALISM: RE WAKIM AND THE IMPLICATIONS FOR A SOCIAL DEMOCRATIC APPROACH

The potential for cooperative federalism to overcome the deficiencies of federalism needs to be qualified in view of the relatively recent decision (in 1999) in Re Wakim; Ex parte McNally.^[90] Wakim sought to circumscribe the operation of cooperative federalism by declaring that it was an essentially political principle and, accordingly, inapplicable to cases involving the Constitution. The decision, therefore, undermines the capacity for cooperative federalism to support social democratic objectives, such as the establishment of a centralised judicial framework as well as the development of uniform and national regulatory (or legislative) schemes.^[91] The establishment of a centralised judicial framework, in particular, could promote the principle of social justice and contribute to a fundamentally more equitable and accessible adjudicatory model.^[92] Yet, the High Court's decision in Wakim would appear to militate against this outcome and it thus imposes significant limits on the centralising (and social democratic) possibilities of cooperative federalism.

Although not directly, or exclusively, concerned with cooperative federalism, Wakim appears, nevertheless, to have significantly circumscribed its potential operation. Wakim related to whether the Federal Court could exercise jurisdiction conferred on it by s 9(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). This scheme was regarded, at the time, as a good example of the operation of cooperative federalism, as well as an instance of how this principle could be used to overcome the (jurisdictional) shortcomings inherent in the federal framework.^[93] It was facilitative, in this context, of a more centralised constitutional structure and, by seeking to effect a more uniform judicial structure, was also productive of the wider (social democratic) objectives of equity and social justice.

It was held, however, (by a majority of six to one) that while the Commonwealth could confer jurisdiction on State courts, the reverse process was not constitutionally permissible, whereby State Parliaments could refer jurisdiction to Federal Courts.^[94] In this respect, it was decided by the majority that neither s 71^[95] nor ss 75-77^[96] specifically authorised Federal Parliament to consent to the conferral of State jurisdiction.^[97] In reaching this conclusion, the majority did not entirely repudiate the principle of cooperative federalism, but they did find, however, that it could not be invoked to create federal jurisdiction (enabling the Commonwealth to receive State jurisdiction) where no such jurisdiction existed.^[98]

This approach (to cooperative federalism) was particularly reflected in the majority's attitude to the decision in R v Duncan; Ex parte Australian Iron and Steel^[99] where federal cooperation between the Commonwealth and States was upheld in order to create and vest jurisdiction in the Coal Industry Tribunal.^[100] The majority, in this respect, confirmed the validity of Duncan and approved the use of federal cooperation to confer (joint) power on the Tribunal, but declared that this situation in Duncan was distinguishable from the present one (in Wakim) where no constitutional power was in existence.^[101] In this context, the Court in Wakim clearly confirmed the legitimacy of cooperative federalism, as a political mechanism, but emphasised that it could not be further invoked as an essentially constitutional principle to effectuate, for example, a cross-vesting jurisdictional scheme.

Despite this judgment in Wakim, however, different views were adopted by the majority, on the one hand, and Kirby J, on the other hand, to the principle of cooperative federalism and this would appear to have influenced the outcome of the decision.^[102] The majority considered cooperative federalism as an essentially political principle that had no significance to the present constitutional context. According to McHugh J, for example, cooperative federalism was a 'political slogan' and not a 'constitutional term' or 'criterion of constitutional validity or power.'^[103] Similarly, for Gummow and Hayne JJ, cooperative federalism was a political principle which could not be used to invent or supply new federal jurisdiction, declaring that: 'no amount of co-operation could supply power where none had originally existed.'^[104] However, in contrast to this view, Kirby J (in a dissenting judgment) declared that there was no reason why cooperative federalism could not operate as a constitutional principle, particularly in view of the fact that there was no express exclusion of Commonwealth-State cooperation in the constitutional text.^[105]

Underpinning these different approaches (to cooperative federalism) in Wakim were even more fundamentally divergent views on the types of federalism upon which the Constitution was based and this appears to have relevance for the future invocation of cooperative federalism as a constitutional mechanism for effecting a more centralised judicial structure.^[106] One view, indeed, was committed to a 'coordinate' approach of federalism. This was particularly reflected in McHugh J's statement in Wakim that 'in a dual political system you do not expect to find either government legislating for the other',^[107] as well as in the declaration by Gummow and Hayne JJ that the 'constitutional compact is a federal compact with all the attendant advantages and disadvantages'.^[108]

In contrast, an alternative 'cooperative' view was also present and this was reflected in Kirby J's emphasis on the fact that the 'Constitution envisages that the constituent parts of the Commonwealth will operate in general harmony with each other.'^[109] Kirby J believed, in this context, that the Constitution assumed that the different levels of government would 'co-operat[e] in a rational, harmonious and generally efficient way',^[110] thereby leading him to uphold the validity of the cross-vesting scheme.^[111] This latter view (of Kirby J's) is significant because it would suggest that the Court, in future, could be willing to entertain the principle of cooperative federalism as a distinctively constitutional concept ─ one that could be facilitative of a centralised jurisdictional structure and one productive of the (social democratic) objectives of equity and social justice.

This contested conception of federalism explains, as Graeme Hill argues, to some extent the ultimate rejection of the cross-vesting legislation and the majority's refusal to entertain the constitutionality of any particular form of 'cooperative' jurisdictional scheme.^[112] For the majority, in particular, a consequence of this coordinate view was the need to maintain a federal division of powers and responsibilities, as well as to ensure that State jurisdictional powers could not be exercised by the Federal Court and the Family Court.^[113]

In effect, Wakim's coordinate concept of federalism presents significant obstacles for the extension of cooperative federalism to the constitutional realm and effectively militates against a more centralised judicial framework ─ one that could have had the effect of promoting a more just and equitable (judicial) model. The possibilities, then, which inhere in the principle of cooperative federalism would seem to have been diminished by the majority's reasoning and underlying assumptions in Wakim. In this respect, the judgment in Wakim could be criticised as being excessively rigid and formalistic and one that ignores the reality of modern policy requirements, which requires a more cooperative and coordinated response to contemporary political and legal problems.^[114]

Despite this, there are indications, however, that a more qualified understanding of the principle of cooperative federalism may be countenanced by the High Court. The subsequent decision of R v Hughes,^[115] for example, appeared to acknowledge that cooperative federalism could support a limited jurisdictional cross-vesting scheme and, to this extent, the decision would seem to indicate that potential exists for, at least, some constitutional acknowledgement of cooperative federalism.^[116] However, it needs to be noted here that such a cooperative legislative scheme (on the basis of Hughes) would be very limited in scope and nature ─ one that is confined to the situation where State law purports to confer functions on Commonwealth officers. It also needs to be emphasised here that Hughes sought to significantly limit the potential application of cooperative federalism by holding that the Commonwealth could exercise functions conferred by the States only where these were associated with federal powers.^[117] Accordingly, Hughes would not seem to represent a significant advance on the previous decision in Wakim in relation to acknowledging cooperative federalism as a distinctively constitutional (as opposed to a political) principle.^[118]

However, there was judicial dicta in Hughes supporting a wider understanding and application of cooperative federalism which could, in turn, implicate the development of a more centralised judicial and constitutional framework.^[119] This dicta derives from the judgment of Kirby J who, in fact, approved the conferral of State (corporations) powers on federal or Commonwealth officers on the explicit basis of cooperative federalism.^[120] Kirby J declared, in this respect, that cooperative federalism would enable Commonwealth officers to perform functions under State law where these activities had been conferred on the Commonwealth.^[121]

In this context, the underlying principle of cooperative federalism, and its limited constitutional acknowledgment, may offer some scope for an expanding federal role in the existing constitutional structure. It could support a restricted jurisdictional cross-vesting framework and this could, in turn, facilitate a certain degree of national regulation in relation to industrial relations, family law and commercial law. Yet, in spite of this, the majority's decision in Wakim indicates that the Court will not countenance the use of cooperative federalism as an instrument to provide the Commonwealth with new or additional federal constitutional power and jurisdiction. Furthermore, the dicta of Kirby J in Hughes would seem to be controversial and one that is unlikely to be accepted by the other members of the High Court in the immediate future.

This highlights the need to identify other essentially constitutional mechanisms of cooperation that can be utilised to effect an increasing centralisation of federal power. Accordingly, it is these mechanisms (and, in particular, the reference power)^[122] to which attention is now turned.

COOPERATIVE FEDERALISM AND THE REFERENCE POWER

As the previous section pointed out, one specifically constitutional mechanism that could be utilised to overcome the deficiencies of the federal constitutional framework, and which could be employed to effectuate a more centralised Commonwealth role, is the federal reference power ─ which is found in s 51(xxxvii) of the Constitution. This provision enables the Commonwealth effectively to 'federalise' State laws or allow federal Parliament to enact laws on matters referred to it by the States. The referral of State constitutional powers can promote a wider Commonwealth role in facilitating federal regulation over matters traditionally regarded as exclusive State concerns. Unlike, for example, the cross-vesting scheme which was essentially 'jurisdictional' in orientation, the reference power has significant potential to promote the increasing centralisation of legislative power in the Commonwealth.

The potential for the reference power to facilitate direct federal intervention in State matters was particularly evidenced by the referral of State (corporations) powers to federal Parliament. In order to overcome the difficulties presented by Wakim for the implementation of a uniform corporations law, a joint meeting of the Standing Committee of Attorneys-General, on 25 August 2000, agreed that the States would refer their (corporations) powers to enable Parliament to re-enact the Commonwealth Corporations Law and the Australian Securities and Investments Commission Act 1989 (Cth).^[123] According to George Williams, this cooperative approach facilitated federal regulation over corporations law and it thus provides an illustration of the transformative possibilities inherent in the constitutional reference power.^[124]

Yet, while this constitutional instrument may prove to be an effective mechanism with respect to essentially narrow references of power (in such areas as family law and company law) it is a less effective or feasible option in relation to the transfer of wider and more general (State) constitutional powers. It is unlikely, for example, that the States will refer to the Commonwealth all matters of State law or matters that require the Commonwealth to exercise significantly broad and flexible (State) powers. In this respect, while this referral mechanism is appropriate for well defined references of powers, it is more problematic in broader policy-oriented areas demanding 'a higher degree of legislative and policy flexibility'.^[125]

Clearly, then, this mechanism of federal cooperation does not provide a feasible and realistic solution to the difficulties raised by the federal framework.^[126] It cannot be expected that the States will cooperate with, and transfer power to, Parliament every time a national legislative scheme is required.^[127] It is arguable, in this context, that a social democratic strategy that is based on the referral of comprehensive State powers is fundamentally inconsistent with the federal nature of the Constitution.^[128]

Ultimately, the social democratic commitment to realising reforms at the federal level and to centralising constitutional power is constrained by the federal division of powers and the States' preparedness to cooperate with, and cede powers to, the Commonwealth. Clearly, then, consideration needs to be given to developing more realistic and practically achievable strategies at the State level. It is the development of these strategies through the mechanism of the States to which attention is now turned.

DEVELOPING PRAGMATIC SOCIAL DEMOCRATIC STRATEGIES AT THE STATE LEVEL

Where social democratic programmes are incapable of realisation at a federal level they may, nevertheless, still be capable of effective realisation at a purely State level. State constitutions and constitutionalism contain several essentially social democratic features (such as the presence of plenary legislative powers and flexible amendment procedures) which can be used to promote more pragmatic and progressive outcomes. The possibilities that inhere in State constitutional processes are particularly evident in American constitutional discourse where progressive theorists are increasingly focusing attention on the potential for State constitutionalism to support reformist social democratic agendas.^[129] The American constitutional experience demonstrates, in this context, that where social democratic agendas are unable to be realised through more traditional (and principled) federal processes they may still, in fact, be capable of effective achievement through more pragmatic State mechanisms. Accordingly, significant attention is devoted to the tradition of State constitutionalism in the United States and the implications that this tradition has for the development of a more pragmatic social democratic agenda in Australia.

In emphasising, however, the possibilities that inhere in State constitutional processes, consideration also needs to be given to the realities of the current federal fiscal arrangements and the inability of these to sustain the type of government intervention which State constitutions would seem to be capable of supporting. The present fiscal arrangements draw attention to the need to promote social democratic strategies that accord greater fiscal autonomy to the States and which facilitate a more fiscally decentralised federal structure. It is the development of these (more decentralised) strategies to which attention is now devoted, as well as their potential effects on, and implications for, a social democratically-oriented federal framework.

AMERICAN STATE CONSTITUTIONALISM AND THE IMPLICATIONS FOR A PRAGMATIC AUSTRALIAN SOCIAL DEMOCRATIC PRACTICE

The possible (pragmatic) contribution which State constitutionalism can make to a social democratic agenda has been generally neglected by Australian constitutional theorists.^[130] Yet, despite this inattention, the constitutional framework of the States would appear to be well-adapted to supporting a social democratic agenda. The States possess plenary legislative power and can legislate on important (social democratic) matters, including health, justice, marketing and local government.^[131] In this respect, they possess a general legislative competence that would appear to be particularly appropriate to a developing social democratic agenda.

The flexible nature of State constitutions (subject to amendment through ordinary 'manner and form' requirements) also suggests that (pragmatic) attention needs to be given to the role that States can perform in realising a pragmatic social democratic agenda.^[132] The presence of flexible 'manner and form' provisions suggests that it may not be unrealistic to include a range of substantive (and positive) socio-economic policy provisions in the various State constitutions, thus promoting the development of a more interventionist and regulatory social democratic agenda.^[133] Such a process has already occurred in the various State constitutions of the United States (producing a renewed social democratic constitutional and political discourse) and this model, therefore, demands significant attention.^[134] The American experience draws attention to the fact that where social democratic agendas cannot be realised at a federal level they may, nevertheless, still be capable of realisation through the mechanism of the States.^[135] Accordingly, State constitutional and political processes could provide a pragmatic (alternative) option to effectuating a social democratic practice through the more traditional instrument of federal intervention.

Constitutional amendments, particularly since World War Two, in the American State constitutions have sought to entrench various substantive social and economic provisions and these have had the practical effect of facilitating an interventionist role on the part of the American States.^[136] Every American State constitution, for example, now incorporates a range of socio-economic rights and these include (for example) the requirement to provide free public schools and the obligation imposed on governments to educate all children within their boundaries.^[137] In this respect, then, the various American State constitutions have been considered to have spawned a new era of “regulatory federalism.'^[138]

There are several distinctive features of this State constitutional tradition that have assisted in promoting a more progressive American constitutional practice and these (features) appear to have significant implications for the development of a pragmatic social democratic agenda within the constraints of the Australian federal structure. First, the flexibility of (American) State amendment processes^[139] is providing an opportunity for raising public awareness of legal and political reform.^[140] Commitment to State constitutional amendment is provoking debate on the need for wider political and constitutional reform.^[141] It is also drawing attention to the need for additional (and more significant) socio-economic rights to be included in the various constitutions of the States.^[142]

Secondly, the inclusion of substantive provisions in the American State constitutions is producing a new form of constitutional adjudication where litigants are seeking to compel State governments to act in an affirmative manner in order to protect and facilitate socio-economic rights and entitlements. Writing in 2001, Helen Hershkoff noted that, in the previous decade alone, more than 20 lawsuits had been undertaken to ensure the enforcement of an adequate educational system.^[143] She also observed that a similar number of actions had been commenced which raised complicated and significant issues of welfare reform.^[144]

Thirdly, the substantive provisions of State constitutions are having a (positive) social democratic impact on American governmental policy, increasingly facilitating an interventionist and progressive political agenda ─ one where government action is occurring at a State level.^[145] In this respect, then, State courts are tending to perform an 'agenda setting'^[146] function where they are ensuring that educational, health and social welfare concerns are being properly addressed by State legislatures.^[147]

The implication of this increasing American orientation to State constitutionalism is that the more idealistic social democratic commitment to federal intervention should not neglect, in fact, the pragmatic pursuit of political and constitutional action in State forums.^[148] Indeed, the American constitutional experience demonstrates that where social democratic programmes are incapable of realisation at the federal constitutional level they may, nevertheless, still be capable of effective realisation at a State level. This appears to be an important advantage of a federal constitutional structure for the development of a more social democratic practice ─ one that has tended to be neglected by social democracy's more traditional commitment to extending the reach of federal power.^[149]

The American constitutional experience also draws attention to the fact that State constitutions are, in certain respects, well adapted to the inclusion of substantive (or socio-economic) policy provisions.^[150] For example, because State constitutions only bind citizens of their respective States, they could, in some ways, be considered to hold a greater democratic and political legitimacy than their federal counterpart.^[151] In this context, State constitutions and State constitutional courts could be considered to hold a particular authority to introduce and enforce substantive socio-economic constitutional provisions because of their closer, or more direct, association with the public.^[152] It is arguable that such a constitutional (and democratic) authority is one not shared to quite such an extent by federal constitutions and federal courts.^[153] This contention, however, is a controversial one since State courts in America have often been reluctant to enforce socio-economic policy provisions.^[154]

The American experience draws attention to other features of State constitutional processes which indicate that they are potentially well-suited to promoting a more social democratic agenda. In particular, it emphasises the contingent nature of State judicial decision-making processes and how this enables State courts to promote social democratic policy debate and deliberation.^[155] The effective finality of federal judicial decision-making, for example, would seem to preclude it from performing an equally significant educative or, indeed, 'consciousness-raising' function in (social democratic) public policy.

In addition, the American tradition of State constitutionalism draws attention to the wide or plenary constitutional powers that are exercised by the States and how this allows them to influence and to shape the development of essentially pragmatic social democratic agendas.^[156] The particular substantive provisions of the various American State constitutions are regulatory in nature and well-adapted to influencing policy in relation to the provision of educational, health and welfare services.^[157] Australian State constitutions possess similarly broad powers and, therefore, have the potential to play an equally important role in promoting a social democratic agenda, particularly in cases where there is no prospect of such an agenda being immediately realisable at the federal level.

In short, the developing (progressive) tradition of State constitutionalism in the United States has important implications for the development of a new and pragmatic social democratic approach to Australian federalism. The plenary legislative powers that are contained in the constitutions of the Australian States, as well as their flexible amendment processes, indicate that they are well placed to perform an important role in shaping public policy and in promoting social democratic agendas. Amending the various Australian State constitutions to include prescriptive social and economic policy provisions could ensure that the States play an even more interventionist and essentially social democratic role.

FISCAL IMPEDIMENTS TO AN INTERVENTIONIST STATE ROLE: THE LIMITS OF STATE CONSTITUTIONALISM

However, it needs to be emphasised here that a significant impediment to the adoption of a more active role for the Australian States is the considerable 'vertical fiscal imbalance'^[158] which presently characterises Australian federalism.^[159] Put simply, the States have limited revenue-raising powers and this could inhibit the development of the type of interventionist and policy-oriented role which the American States are presently performing. Federal Parliament, in particular, currently collects in excess of three-quarters of total national revenue.^[160] The States, in this respect, are compelled to rely on a limited number of sources of income, including property and payroll tax, as well as alcohol, petroleum and tobacco taxes.^[161] Clearly, then, this distribution of federal revenue does not match the policy responsibilities that could be assumed by the States and this militates against the development of an interventionist social democratic role which the States are constitutionally capable of performing. This fiscal imbalance which characterises Australian federalism emphasises the point that while State processes can play an important role in promoting a social democratic agenda, they should not be allowed to replace the more traditional concern with effectuating progressive goals at the federal level.

Several options could, in this context, be pursued that would overcome these obstacles to an expanding institutional and constitutional role for the States and which will be briefly canvassed here.^[162] One possibility would be for federal Parliament to provide 'tax room' to the States to impose their own personal income tax regimes.^[163] An alternative approach (and one that has already taken place with the introduction of the Goods and Services Tax or 'GST') is to ensure that the States receive a guaranteed share of federal tax collection.^[164] A final approach may be to promote the 'broad banding' of the existing grants system which would, as the Federal-State Relations Committee emphasises, provide the States with flexibility in determining how they allocate their funds.^[165] All of these strategies would assist in providing the States with the requisite fiscal autonomy and fiscal independence to promote more interventionist agendas.

There is a developing literature which relates to the potential impact of greater fiscal autonomy of the States and fiscal competition between the States (or what is termed 'competitive federalism') to the political and democratic process.^[166] Increased fiscal (or 'horizontal') competition between States per se and increased fiscal (or 'vertical') competition between States and federal governments has been perceived as having the potential to distort outcomes in relation to government regulation and the provision of public goods and services.^[167] In particular, it has been argued by William Bratton and Joseph McCahery that this type of 'competitive federalism' will produce a more libertarian framework where competing States seek to lower taxes, reduce wages and terminate welfare entitlements in order to attract financial investment.^[168] Bratton and McCahery criticise the theoretical model that was developed by Charles M Tiebout in 1956,^[169] which predicted that a decentralised governmental structure with multiple jurisdictions competing for residents will produce 'Pareto-optimal' outcomes (such as increasing levels of public services, parks, police protection, roads, schools, and welfare).^[170] The writers argue that such a framework is unrealistic and artificial since it assumes that residents are perfectly mobile; that they have full knowledge of the services provided by, as well as the taxes imposed in, neighbouring States; and that they have access to meaningful employment in neighbouring States.^[171]

In a similar context, it has been suggested that federal devolution and enhanced inter-State competition will produce excessive socio-economic inequalities between regions where, for example, the poor and disenfranchised migrate to those areas that provide more generous and essentially unconditional forms of welfare entitlement or social provision.^[172] Concern has been expressed, in this respect, that overly generous welfare benefits will attract the poor and marginalised and that, as a result, States will lower their welfare benefits in order to avoid becoming 'welfare magnets.'^[173] If these arguments are accepted, then it would appear that greater federal devolution could be counter-productive to a developing pragmatic social democratic agenda and may have the potential to produce undesirable situations where there are extreme inequalities between States.

However, there is no evidence to support an association between greater fiscal competition and potentially regressive and inequitable outcomes. Proceedings from the International Conference on Federalism found that the federal structures of the United States, Canada and Switzerland (which demonstrated significant levels of fiscal competition) did not lead to a diminution of public services or to a general 'race to the bottom' where reductions in government taxation and welfare expenditure were undertaken to attract commercial investment.^[174] Similarly, one of the leading contemporary American theorists on the regulatory effects of competitive federalism, Richard Revesz, has found no evidence to establish a relationship between inter-State competition and diminishing levels of public intervention.^[175]

Studies have been undertaken by Wallace Oates and Robert Schwab into the effects of federal devolution on environmental regulation revealing no particular association between more competitive federal frameworks and diminishing levels of government regulation.^[176] When viewed in this context it is arguable that fiscal decentralisation and greater fiscal competition between States has the potential to produce a situation where there are increasing levels of government regulation and where there are improving standards of public service provision.

There are, in any case, several mechanisms which can be employed to ameliorate the regressive consequences arising from fiscal competition between States and these could minimise reliance, for example, on fiscal equalisation schemes. For example, restrictions could be placed on the provision of welfare assistance to citizens entering different States, thus reducing the risk of welfare recipient 'migration' and resulting inequalities between the States.^[177] Furthermore, the States' promotion of (horizontal) cooperation through the mechanism of uniform welfare policies could have the effect of minimising the potential for individuals to 'forum shop' for welfare entitlements, which could potentially produce a situation where there are extreme wealth-based disparities between States.^[178] An additional instrument which could be employed to overcome excessive inter-State inequalities is the use of conditional federal grants which require the States to maintain minimum levels of welfare provision. Tied grants are used extensively in the United States and have significant potential for mitigating serious inequalities that might flow from a more fiscally decentralised framework.^[179] Such mechanisms could constrain the inequalities that may potentially result from fiscal competition between the States and could promote a more progressive federal framework.

In addition to fiscal constraints, a further institutional constraint on the possibilities that inhere in State constitutional processes is that State courts face similar difficulties to federal courts in enforcing social and economic policy provisions. There has been a general reluctance on the part of American State courts to enforce the social democratic (or socio-economic) provisions of their respective constitutions.^[180] State courts (like their federal counterparts) have emphasised that determinations on matters of policy are more appropriately dealt with by the legislature.^[181]

Furthermore, even in those cases where the courts have found that State legislatures have breached their social and economic constitutional obligations, they have been reluctant to enforce or impose a specific policy or legislative remedy.^[182] In this respect, as Jeffrey Dyess argues, it would appear that (American) State courts have been no different from federal courts in their reluctance to enforce substantive or policy-oriented constitutional provisions.^[183]

Clearly, then, while State processes can play an important role in promoting a more progressive agenda, this should not be allowed to act as a substitute for the more traditional concern with effecting essentially social democratic goals at the federal level. As was shown, a practical commitment to effecting progressive objectives at the level of the States would seem most appropriate where these cannot be realistically achieved in the federal sphere. In this context, it would appear that both (pragmatic) State and (more idealistic) federal strategies can perform a significant role in promoting a distinctively social democratic agenda.

An investigation into the possibilities that inhere in State and federal processes leads to a further consideration of the issue of constitutional amendment and, in particular, to the feasibility of pursuing more progressive or social democratic strategies which seek to rely on the mechanism of amendment. Accordingly, it is to this issue on which attention is now focused.

FEDERALISM VERSUS UNIFICATION: THE WAY AHEAD

A more enduring, but ultimately unrealistic, solution to the impediments raised by federalism rests in abolishing the States and in implementing a unitary constitutional structure. Such a course of action has been a longstanding concern of progressive theorists and has been considered as an essential pre-condition to the establishment of a more genuinely social democratic framework.^[184] However, this objective of national unification faces not only significant logistical obstacles (such as satisfying the requirements of the 'amendment' provision in s 128) but also important constitutional impediments.^[185] It is arguable that the Constitution does not authorise the fundamental constitutional reforms needed to facilitate the type of unitary constitutional structure advocated by such traditional (social democratic) advocates as Greenwood.^[186] If this interpretation of s 128 is accepted as correct (and it is argued here that it is the correct interpretation) then this indicates that a social democratic agenda will need to be realised within the constraints of the existing federal framework. This commitment to effectuating a social democratic agenda within the present constitutional structure is consistent with the article's underlying emphasis on developing a pragmatic and practically achievable federal strategy.

THE FEASIBILITY AND CONSTITUTIONAL LEGITIMACY OF NATIONAL UNIFICATION

A longstanding social democratic (or, indeed, Marxian) contention is that the abolition of the States and the establishment of a unitary constitutional framework is an essential pre-condition for developing a more interventionist and transformative governmental role.^[187] As was previously outlined, Greenwood is one leading social democratic theorist who perceives the federal division of powers as a serious impediment to greater governmental involvement in the economy and who, therefore, advocates the implementation of a unitary structure.^[188] However, this traditional commitment to the abolition of the States disregards ─ or chooses to disregard ─ the logistical and constitutional hurdles associated with such an undertaking. In short, the establishment of a unitary model would not be a simple or straightforward process and would face not only significant practical impediments, but more importantly, serious constitutional difficulties which may preclude its realisation.^[189]

First, the scale of amendments to the Constitution required to abolish the States and to effectuate national unification would be extremely large and, in fact, ultimately overwhelming.^[190] Specifically, Part II of Chapter I (the Senate) would need to be re-drafted to reflect the disappearance of the States and the resultant establishment of a unitary structure. Furthermore, Part V of the Constitution (titled 'Powers of Parliament') would require extensive modification involving the elimination of any concept of the federal division of power.^[191] Section 51, in particular, would need to be removed and to be replaced by a provision according full legislative power to the Commonwealth Parliament.^[192]

Perhaps, however, the most dramatic changes that would need to be undertaken relate to Chapters V and VI of the Constitution ─ titled 'The States' and the 'New States.' Greg Craven estimates that some 96 individual provisions would require amendment here and, of these changes, approximately 70 would require either total repeal or 'alteration to the point that they would be unrecognisable.'^[193] In this respect, then, the sheer scale of the amendments required to effectuate a constitutional transformation to a unitary model would be immense and, ultimately, unrealisable.

Furthermore, it should be noted that these alterations would be insufficient, in themselves, to secure national unification. Attention would (also) need to be focused on the actual constitutions of the States in order to secure their abolition. As Burt CJ observed in Western Australia v Willsmore^[194] the provisions of the Commonwealth Constitution dealing with the States do not provide the legal basis for their actual existence ─ rather, their existence can be traced to their respective constitutions. In this respect, removing all references to the States in the federal Constitution would, in itself, be insufficient to secure their abolition.^[195]

A relatively easier process for abolishing the States might, therefore, be to leave all existing references to the States in the Constitution and simply to rely on the insertion of a clause terminating their existence.^[196] Such a provision would seem to be effective in abolishing the States and establishing a unitary framework.^[197] For example, once the States had ceased to exist all of the provisions assuming their existence would be considered to either be impliedly repealed or to be simply inapplicable. The difficulty here with this process is that this 'simpler' method would mean that significant and, indeed, entire sections of the Constitution would be irrelevant and perhaps even misleading. In effect, the constitutional document would refer to the operation of the States when they would no longer be in existence.^[198]

Hence, the preferable (and more 'comprehensive') method would be to remove all references to the States, as well as (expressly) stipulating that their operation has been substantially terminated. Yet, such an approach appears to be ultimately impractical and inconsistent with the underlying emphasis placed in this article on the need for developing an essentially pragmatic (progressive) strategy.

Secondly, in addition to these logistical or practical problems, is the further difficulty regarding the opposition that would be levelled against amendments of this extent and importance. The States could be expected to mount significant opposition to proposed constitutional amendments seeking to challenge their continued existence. This only serves to compound the difficulties faced by federal Parliament which is (according to s 128) required to achieve electoral majorities in all States in order to secure their abolition and to achieve a genuinely unitary constitutional framework.

Thirdly, a point which is neglected by traditional social democratic theorists, such as Greenwood, is that the establishment of a unitary constitutional structure also confronts significant constitutional hurdles. It is unclear, in this context, whether the Constitution, in fact, authorises the abolition of the federal structure.^[199] For example, to abolish the States and replace them with a new unitary model may so dramatically transform the nature of the Constitution that this process can no longer be regarded as an alteration to the Constitution within the specific context of s 128.^[200]

Despite this view of Craven's, there has been opposing authority to suggest that the elimination of the States would be constitutionally permissible under s 128. W A Wynes argues that if the continued existence of the States was specifically intended by the framers, then they would have included a particular section stipulating this requirement.^[201] According to Wynes, the reference in the preamble of the Australian Constitution to an 'indissoluble Federal Commonwealth' does not serve to limit or circumscribe the specific operation of s 128.^[202]

A similar interpretation is offered by Michael Coper who supports the notion that the abolition of the States is constitutionally allowable. Like W A Wynes, Coper argues that the (federal) limitations present in the preamble do not serve to constrain the operation of the particular provisions of the Constitution itself.^[203] The non-binding nature of the preamble, according to Coper, is illustrated by the fact that it relates to the agreement of the peoples of five States and that it omits the State of Western Australia.^[204]

Further support for an approach which perceives the abolition of the States as being constitutionally allowable can be found in Colin Howard's text, Australian Federal Constitutional Law.^[205] Howard argues that it is difficult to precisely specify what the essential or fundamental characteristics are which comprise federalism and that would act as a limitation on the operation of s 128. On this basis, as well as on the grounds that s 128 does not explicitly refer to, or imply, a guarantee of federalism, he argues that the Constitution does not preclude the abolition of the States.^[206]

There may, indeed, be some validity to this contention that the terms of s 128 do not quarantine or exclude the States from constitutional change or abolition. For example, s 128 is expressed in general terms and provides simply that 'this Constitution shall not be altered except in the following manner …' Nowhere, in this respect, is there any provision which declares that a particular feature of the Australian constitutional structure is beyond alteration or amendment.

Yet, as Craven points out, the Constitution generally presupposes the concept of a federal constitutional structure.^[207] As previously alluded to, the preamble to the Constitution refers to 'one indissoluble Federal Commonwealth.' Furthermore, it emphasises how the individual colonies consented or agreed to the imposition of a federal Constitution (by the Imperial Parliament). In this respect, the preamble draws attention to the centrality of the federal nature of the Constitution and this concern with a federal structure would seem to depend entirely on the continuing existence of the States. Moreover, it would appear that, in structural terms, the Constitution is predicated on the existence of the States. The legislative framework, in particular, is underpinned by a federal division of powers.^[208] Similarly, the judicature is also founded on a federal allocation of responsibilities.^[209] Indeed, there would appear to be no single Part or Chapter that does not implicate the concept of federalism and a federal division of powers.^[210] In this respect, it would seem to be a controversial (if not unconstitutional) step for a contemporary social democratic approach to take to seek the abolition of the States and the establishment of a unitary structure.

Even if, however, the scope of s 128 did extend to abolishing the States, a social democratic strategy reliant on constitutional amendment still needs to take account of the fact that this section contains express protections of State boundaries, thereby ensuring that their abolition will be an extremely remote occurrence. In effect, s 128 provides that a referendum to abolish each and every State requires a majority of voters in every one of the respective States. It is, of course, unlikely that such an outcome will ever eventuate. The fact that unification would appear to be politically and constitutionally unachievable draws attention to the need for developing a more pragmatic and realistic social democratic agenda ─ one that is to be realised within the existing constraints of the federal Constitution.

The assumption in the preceding discussion has been that the only legitimate way of pursuing constitutional amendment and effectuating a unitary structure is through the mechanism of s 128. However, it is arguable that the ultimate authority and validity on which alterations to the Constitution and the Constitution Act are grounded is a deeper underlying consent of the States themselves expressed (for example) through constitutional conventions and referenda authorised by the respective legislatures.^[211] The advantage of this 'consensual' approach is that it would appear to overcome the difficulty (emphasised by Greg Craven) that s 128 may not authorise the abolition of the States. Accordingly, on the basis of his framework, the States could be abolished and a unitary structure could be consequently implemented. This approach could conceivably be extended to support what Mark Moshinsky has called a 'peaceful legal revolution'^[212] whereby a genuinely 'autochthonous'^[213] or 'home grown'^[214] unitary constitutional framework is developed and inserted in (for example) the Australia Act 1986 (Cth).^[215]

The difficulty with securing the abolition of the States and with realising a unitary framework through this particular process is, of course, that it is extremely unlikely that an agreement will ever be reached between all State legislative assemblies for the implementation of such a constitutional model. In this respect, it would appear that the promotion of a unitary framework through the agreement of the various States is more of theoretical, as opposed to real or practical, interest.

CONCLUSION

The central issue motivating the discussion in this article has been the concern as to whether a social democratic constitutional and political agenda can be realised within the existing institutional and constitutional constraints of federalism. Although this question has been a long debated and much discussed one in social democratic political and constitutional theory, this paper has sought to bring new light to this perspective by emphasising the potential advantages of federal theory and the federal constitutional structure for a developing social democratic constitutional approach.

A new federal model was thus developed which rejected the more traditional social democratic and Marxian commitment to a unitary framework and which (in contrast) embraced the characteristics of institutional diversity and decentralisation that inhere in the federal theories of Galligan and the American republican, as well as 'judicial federalist', traditions. The repudiation of this traditional social democratic commitment to a unitary structure and the incorporation of federal constitutional arrangements were closely associated with the need to develop an institutional role for the judiciary as well as the free market in a contemporary social democratic approach. The 'market preserving'^[216] nature of federalism was particularly emphasised in this article and this would seem to indicate that federalism is more consistent with (and facilitative of) the type of market-oriented social democratic constitutional model that has been developed here than the unitary and 'statist' constitutional structures that were formulated by Laski and Greenwood.

This ideal and essentially progressive federal model was, accordingly, applied to the Australian federal framework. It was shown that the advantages of present Australian federal arrangements for a social democratic approach are not straightforward and unequivocal. For example, it would seem that Australian federalism's concern with (more) decentralised and participatory arrangements have not always translated into a structure that is sensitive to minority rights and rights of individual (political and social) participation. It was emphasised that Australian federalism's commitment to an underlying (federal) division of powers has tended to constrain the progressive possibilities of government intervention and has tended to result in an absence of government regulation in the important policy areas of indigenous issues, health and welfare assistance.

In this respect, it was suggested that a distinctively social democratic approach to the Australian constitutional structure clearly needs to develop political and constitutional mechanisms which can facilitate greater national coordination and centralised federal control. As was shown, federal cooperation and, more particularly, inter-governmental agreements, are characteristic political methods that have potential to overcome the more limiting features of federalism and are mechanisms which can be utilised to promote an enhanced federal role. The fact that Australian federalism is assuming a more (as Martin Painter describes) 'collaborative' and 'regulatory' institutional structure would appear to have clear (social democratic) implications for expanding federal involvement in the national realm.^[217]

A difficulty here, however, is that the principle of federal cooperation or 'cooperative federalism' has been held in Wakim to be a specifically political, as opposed to a distinctively constitutional, principle and there would seem to be, therefore, limits to its potential application to the federal framework. While it can promote political forms of cooperation, it cannot provide a basis for essentially constitutional and judicial methods of cooperation and support (for example) a jurisdictional cross-vesting scheme. It was suggested, however, that the decision in Hughes indicates that the High Court may be prepared to constitutionally acknowledge a more qualified principle of cooperative federalism, but whether this (more qualified) principle can provide a foundation for a jurisdictional cross-vesting scheme of the type that was invalidated in Wakim remains unclear.

Clearly, then, there is a need for social democratic theorists to utilise other essentially constitutional mechanisms of cooperation such as the constitutional reference power (found in s 51(xxxvii) of the Constitution) to support the progressive objective of an increasingly centralised federal structure. Yet, it was argued that a social democratic strategy based on the expectation or requirement that the Australian States will refer their constitutional powers to the Commonwealth (thereby facilitating a more centralised and interventionist federal framework) would appear to be unrealistic and, ultimately, incapable of realisation.

In view of this, it was argued that pragmatic and practically achievable strategies also need to be considered and developed in social democratic theory ─ ones that are oriented more to the State, as opposed to the federal, realm. It was shown, in this respect, that where ideal and more principled social democratic strategies aimed at the federal sphere are unable to be properly effectuated then they may, nevertheless, still be capable of more qualified realisation in the State sphere. This commitment to the development of pragmatic and practically-oriented social democratic programmes reinforces and promotes the dissertation's wider emphasis on the need for formulating an essentially attainable social democratic constitutional and political agenda ─ one that provides a realistic alternative to the liberal paradigm that presently dominates constitutional discourse.

In this context, then, significant attention was particularly devoted to the potential for State constitutionalism to contribute to a developing social democratic constitutional and political agenda. It was shown, for example, that progressive theorists in the United States are turning their attention to State constitutional mechanisms as a basis for effectuating progressive agendas, particularly where there appears to be little opportunity for achieving such reforms at a federal level. American (progressive) theorists have recognised that State constitutionalism contains several characteristic features that make it well-suited to a developing social democratic agenda and these include the flexibility of constitutional amendment procedures; the regulatory and policy-oriented nature of State constitutions; the provisional character of decision-making processes in State courts; and the potentially greater democratic legitimacy which State constitutional decision-making may, indeed, have to enforce substantive social and economic policy-making questions.

The contribution which State constitutionalism can make to a social democratic agenda is not merely an abstract theoretical one, but a real and important political and policy-oriented one. This is particularly demonstrated in the case of the American constitutional tradition where it was shown that State courts (through the enforcement of the provisions of their particular constitutions) are performing a significant 'agenda setting' function in adjudicating on, and constitutionalising, important political or policy issues. The emphasis, in this respect, that has been accorded to the progressive possibilities of State constitutionalism highlights the advantages of federalism's commitment to a dual structure of constitutional governance.

However, in drawing attention to the essentially pragmatic possibilities of the States (and State constitutionalism), it was emphasised that account also needs to be taken of the present fiscal and institutional realities of the Australian federal structure and how this tends to militate against a significantly pragmatic and social democratic State constitutional discourse. The nature of fiscal federalism and the significant vertical fiscal imbalance that presently characterises the federal structure tends to preclude a more visible and interventionist role for the Australian States. Several possible solutions were advanced including the 'broad-banding' of the grants system to facilitate greater fiscal autonomy among the States. Yet, it was shown that the move to greater fiscal State autonomy raises complex issues regarding the possible effects of a fiscally decentralised (or competitive) federal framework for a social democratic constitutional model. Federal safeguards, in this respect, may need to be introduced to ensure greater fiscal decentralisation does not produce a 'race to the bottom' where there are diminishing levels of government intervention and social protection in the States.

Furthermore, in an associated context, it was pointed out that there may be particular social democratic roles, such as the provision of welfare services, that are intrinsically 'national' in character and that can, in effect, only be performed at a federal level. In this respect, then, it was argued that limits also inhere in a purely pragmatic approach that is exclusively oriented to the State realm. A contemporary social democratic approach to federalism, it was therefore argued, needs to embrace both (principled) federal, as well as (more pragmatic) State, strategies.

An alternative option for social democrats to pursue in effectuating a more progressive framework is to undertake constitutional amendment. It was argued, however, that significant constitutional amendment in which the States are abolished and where a unitary constitutional structure is developed (as, for example, advocated by Greenwood) is, ultimately, impractical and could (in any event) be constitutionally unachievable. This draws attention, indeed, to an important and underlying theme of the article which is the necessity for social democratic ideals and objectives to be realised within the existing constraints of the federal framework. Furthermore, it was shown that even if constitutional amendments implementing a more centralised federal framework were to be successfully realised, it is not clear that this would have the effect of resulting in a more interventionist or essentially progressive framework.

In short, then, this article has sought to shed new light on the progressive possibilities which inhere in federalism and the federal constitutional structure. The purpose has been to demonstrate that there is room to manoeuvre within the existing federal framework for social democratic theorists and practitioners and that there are certain advantages in a federal or 'dual' constitutional structure that could potentially be exploited by contemporary social democrats.

^[*] BA (Hons), LLB (Hons), PhD, Tutor in Law, University of Queensland. Special thanks to Dr Nicholas Aroney for his valuable comments and suggestions on this article. This article is based on a chapter of the writer's PhD dissertation titled Resisting Liberalism: Social Democracy and the Australian Constitution.

^[1] This model is based on the writings of Brian Galligan: see Brian Galligan, A Federal Republic (1995); Brian Galligan, 'Australian Federalism: The Challenge of Governing in the 1990s', in Ian Marsh (ed), Governing in the 1990s (1993). See also Brian Galligan, The Politics of the High Court (1987); Brian Galligan, 'The Australian High Court's Role in Institutional Maintenance and Development' in Charles Sampford and Kim Preston (eds), Interpreting Constitutions: Theories, Principles and Institutions (1996) 184. The model is also based on the works of several American theorists: see Cass Sunstein, 'Federalism in South Africa? Notes from the American Experience' (1993) 8 American University Journal of International Law and Policy 421; John Kincaid, 'Foreword: The New Federalism Context of the New Judicial Federalism' (1995) 26 Rutgers Law Journal 913; Helen Hershkoff, 'Positive Rights and State Constitutions: The Limits of Federal Rationality Review' (1999a) 112 Harvard Law Review 1131; Helen Hershkoff, 'Welfare Devolution and State Constitutions' (1999b) 67 Fordham Law Review 1403; Helen Hershkoff, 'Foreword: Positive Rights and the Evolution of State Constitutions' (2002) 33 Rutgers Law Journal 799.

^[2] See Gordon Greenwood, The Future of Australian Federalism (2^nd ed, 1976); Harold Laski, 'The Obsolescence of Federalism' (1939) 98 New Republic 367.

^[3] See the 'Commonwealth-State Housing Agreement' in the Housing Assistance Act 1996 (Cth) and the 'Commonwealth-State Medicare Agreement' in the Medicare Agreements Act 1992 (Cth).

^[4] Australian Constitution s 51(xxxvii).

^[5] See Richard Webb, 'Public Finance and Vertical Fiscal Imbalance' (Research Note No 13, Parliamentary Library, Parliament of Australia, 2002); Brian Galligan, 'Federal Renewal, Tax Reform and the States' (1998) 10 Upholding the Australian Constitution: Proceedings from the Tenth Conference of the Samuel Griffith Society 221.

^[6] William Bratton and Joseph McCahery, 'The New Economics of Jurisdictional Competition: Devolutionary Federalism in a Second-Best World' (1997) 86 Georgetown Law Journal 201.

^[7] See, eg, Greenwood, above n 2; Laski, above n 2.

^[8] See Greg Craven, 'Would the Abolition of the States be an Alteration of the Constitution under Section 128?' (1989) 18 Federal Law Review 85.

^[9] See, eg, Greenwood, above n 2; Laski, above n 2.

^[10] Galligan, 'The Australian High Court's Role in Institutional Maintenance and Development', above n 1; Galligan, A Federal Republic, above n 1; Sunstein, above n 1; Daniel Elazar, American Federalism: A View From the States (2^nd ed, 1972); Kincaid, above n 1; William Brennan, 'The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights' (1986) 61 New York University Law Review 535; Jonathan Rodden and Susan Rose-Ackerman, 'Does Federalism Preserve Markets?' (1997) 83 Virginia Law Review 1521; Burt Neuborne, 'Foreword: State Constitutions and the Evolution of Positive Rights' (1989) 20 Rutgers Law Journal 881.

^[11] See Greenwood, above n 2; Laski, above n 2. See also Graham Maddox, 'Federalism or Government Frustrated?' (1973) 45 Australian Quarterly 92; Bill Brugger and Dean Jaensch, Australian Politics: Theory and Practice (1986); William R Maclaurin, Economic Planning in Australia (1937); L F Crisp, Australian National Government (1978); A P Canaway, The Failure of Federalism in Australia (1930).

^[12] See Greenwood, above n 2, 117.

^[13] Ibid, 156.

^[14] See Laski, above n 2, 368.

^[15] Ibid 367.

^[16] See Greenwood, above n 2, especially the title to Chapter 4.

^[17] Ibid 117–74.

^[18] Laski, above n 2, 366.

^[19] Greenwood, above n 2, 3. Such an approach significantly influenced later (Australian) political accounts of federalism: see, eg, A F Davies, Australian Democracy: an Introduction to the Political System (2^nd ed, 1964).

^[20] Greenwood, above n 2, 11.

^[21] Laski, above n 2, 368.

^[22] Greenwood, above n 2, ch 4.

^[23] Greenwood, above n 2, 9.

^[24] See, eg, Sunstein 'Beyond the Republican Revival' (1988) 97 Yale Law Journal, 1539.

^[25] See Kincaid, above n 1; Brennan, above n 10; Neuborne, above n 10.

^[26] Galligan, A Federal Republic, above n 1; Galligan, 'The Australian High Court's Role in Institutional Maintenance and Development', above n 1.

^[27] Galligan, A Federal Republic, above n 1.

^[28] See Sunstein, above n 1; Kincaid, above n 1; Brennan, above n 10.

^[29] Galligan, 'The Australian High Court's Role in Institutional Maintenance and Development', above n 1, 184. See also Brian Galligan and Cliff Walsh, 'Australian Federalism — Yes or No?' in Greg Craven (ed), Australian Federation: Towards the Second Century (1992) 193, 197.

^[30] See Kincaid, above n 1.

^[31] Galligan, A Federal Republic, above n 1, 42–4; Sunstein, above n 1, 437.

^[32] Sunstein, above n 1, 421.

^[33] See the Federal-State Relations Committee, Parliament of Victoria, Report on Federalism and the Role of the States: Comparisons and Recommendations (1999) ch 7, especially 183.

^[34] Galligan, 'The Australian High Court's Role in Institutional Maintenance and Development', above n 1.

^[35] Galligan, A Federal Republic, above n 1, 52.

^[36] Elazar, above n 10, 185–6.

^[37] Galligan, A Federal Republic, above n 1, 52.

^[38] See, eg, Greenwood, above n 2, 9.

^[39] Sunstein, above n 1, 436.

^[40] Ibid 437.

^[41] Ibid.

^[42] Rodden and Rose-Ackerman, above n 10.

^[43] See, eg, Laski, above n 2, 368.

^[44] See Sunstein, above n 1, 421.

^[45] Cf Bratton and McCahery, above n 6, 213.

^[46] See Wayne Goss and David Plumridge, 'Does Australia Still Need State Governments?' (1996) 55 Australian Journal of Public Administration 88.

^[47] Brennan, above n 10; Kincaid, above n 1.

^[48] For example, members of the Australian Labor Party have long been critical of the restrictions imposed by federalism: see Bob Hawke, 'The Resolution of Conflict' (Address delivered in The Boyer Lectures, 1979) 18; Edward Gough Whitlam, 'The Labor Government and the Constitution' in Gareth Evans (ed), Labor and the Constitution, 1972–75 (1977) 305.

^[49] Glyn Davis et al, Public Policy in Australia (1988) 48.

^[50] See Whitlam, The Labor Government and the Constitution (1977) 321.

^[51] See Henry Bournes Higgins, A New Province for Law and Order (1922) 115; Sir Isaac Isaacs Australian Democracy and Our Constitutional System (1939) 40–4. See also John Rickard, H B Higgins: The Rebel as Judge (1984) 106; Sir Zelman Cowan, Isaac Isaacs (1993) 55. See also L F Crisp, Federation Fathers (1990) 191, 203, 121–86 on the approaches of Isaacs, Higgins and George Dibbs to the federal constitutional framework.

^[52] See Crisp, above n 51, 170-72.

^[53] Ibid 202.

^[54] Isaacs, above n 51, 33–4.

^[55] See Robert Howse, 'Federalism, Democracy and Regulatory Reform: A Sceptical View of the Case for Decentralization', in Karen Knop et al (eds), Rethinking Federalism: Citizens, Markets and Governments in a Changing World (1995) 272.

^[56] James Gillespie, 'New Federalisms' in Judith Brett, James Gillespie and Murray Goot (eds), Developments in Australian Politics (1994) 60, 71.

^[57] Ibid 70–1.

^[58] See, eg, Galligan, A Federal Republic, above n 1, 42; Sunstein, above n 1, 437.

^[59] Howse, above n 55, 271.

^[60] See John Wiseman 'Broadening and Deepening Democracy: Learning From Recent Experiments in Citizen and Community Engagement' in Glenn Patmore and Gary Jungwirth (eds) Labor Essays (2004) 54.

^[61] Susan Rose-Ackerman, Rethinking the Progressive Agenda: The Reform of the American Regulatory State (1992) 166.

^[62] Sunstein, above n 24, 1541. Cf Verity Burgmann, 'Active Citizenship Against Marketisation: Community Resistance to Neo-Liberalism', in Glenn Patmore and Gary Jungwirth (eds), Labor Essays (2004) 116.

^[63] Such a point has been made by several traditional social democratic theorists: see, eg, Crisp, above n 11, 178; Geoffrey Sawer, Australian Federalism in the Courts (1967).

^[64] See, eg, Rodden and Rose-Ackerman, above n 42.

^[65] See, eg, Michael Greve, 'Against Cooperative Federalism' (2000) 70 Mississippi Law Journal 557; Wolfgang Kasper 'High on the Reform Agenda: Competitive Federalism' (1994) 10 Policy 10, 13.

^[66] Kasper, above n 65, 13. This has been a common theme in the writings of (liberal) academics from the Centre for Independent Studies: see, eg, Geoffrey de Q Walker, 'The Seven Pillars of Centralism: Engineers' Case and Federalism' (2002) 76 Australian Law Journal 678.

^[67] John Gardner, 'The Failed Discourse of State Constitutionalism' (1992) 90 Michigan Law Review 761, 826.

^[68] Ibid 827.

^[69] Sheryll Cashin 'Federalism, Welfare Reform and the Minority Poor: Accounting for the Tyranny of State Majorities' (1999) 99 Columbia Law Review 552.

^[70] Felix Frankfurter and James Landis, 'The Compact Clause of the Constitution — A Study in Interstate Adjustments' (1925) 34 Yale Law Journal 685, 688.

^[71] S R Davis 'Cooperative Federalism in Retrospect' (1952) 5 Historical Studies: Australia and New Zealand 212, 215.

^[72] Martin Painter, 'Multi-Level Governance and the Emergence of Collaborative Federal Institutions in Australia' (2001) 29 Policy and Politics 137; Martin Painter, Collaborative Federalism: Economic Reform in Australia in the 1990s (1998) 32–61; Martin Painter, Steering the Modern State: Changes in Central Coordination in Three Australian State Governments (1987).

^[73] Included in these (Agreements) were the National Road Transport Commission Agreement (1991); the Non-Bank Financial Institutions Agreement (1991); the National Rail Corporation Agreement (1991); the Uniform Credit Laws Agreement (1993); and the National Competition Laws Agreement (1995). For a commentary on the several joint 'Commonwealth-State' agreements that were formed between 1990 and 1997 ─ as well as the activities undertaken by the Special Premiers' Conference and the Council of Australian Governments ─ see Painter, Collaborative Federalism, above n 72, ch 3.

^[74] See Painter, Collaborative Federalism, above n 72, ch 2. See also Cheryl Saunders 'Collaborative Federalism' (2002) 61 Australian Journal of Public Administration 69.

^[75] Painter distinguishes between two different models of federalism: an 'arm's length' or 'coordinate' model and a 'collaborative' framework whereby governments enter into a range of binding agreements to pursue coordinated action: Painter, Collaborative Federalism, above n 72, 186–9.

^[76] Painter, Collaborative Federalism, above n 72, 100–3.

^[77] Painter, 'Multi-Level Governance and the Emergence of Collaborative Federal Institutions in Australia', above n 72, 140–1.

^[78] Ibid 140.

^[79] Ibid.

^[80] Ibid 145.

^[81] Painter, Collaborative Federalism, above n 72, 68.

^[82] See, eg, Painter, Steering the Modern State, above n 72, ch 1.

^[83] In this context, see Whitlam, above n 48, 307.

^[84] See the Housing Assistance Act 1996 (Cth) sch 1.

^[85] Clause 1, Guiding principle 1.

^[86] Clause 1, Guiding principle 4.

^[87] Clause 1, Guiding principle 3.

^[88] Clause 1, Guiding principles 2, 11.

^[89] Clause 1, Guiding principle 10.

^[90] (1999) 198 CLR 511 ('Wakim').

^[91] Alastair Nicholson, 'Justice for Families and Young Offenders — A Unified Court System as a 21^st Century Reform' (Speech delivered at the,2003 JV Barry Memorial Lecture, University of Melbourne, 14 October 2003); George Williams, 'Cooperative Federalism and the Revival of the Corporations Law: Wakim and Beyond', (2002) 20 Company and Securities Law Journal 160.

^[92] See eg, Williams, above n 91, 166–7, who provides examples in relation to corporations law where jurisdictional cross-vesting may produce a more efficient and effective legal and regulatory structure.

^[93] See eg, H G Fryberg 'Cross-Vesting of Jurisdiction' (1987) 17 Queensland Law Society Journal 113.

^[94] (1998) 198 CLR 511 (Gleeson CJ, McHugh, Gummow, Hayne, Gaudron and Callinan JJ; Kirby J dissenting).

^[95] Section 71 provides that judicial power shall be vested in the High Court.

^[96] Section 75 declares that the Court shall have original jurisdiction in certain kinds of matters; s 76 empowers Federal Parliament to legislate to confer jurisdiction on the Court on certain kinds of matters; and s 77(iii) empowers Parliament to vest any State court with federal jurisdiction.

^[97] (1998) 198 CLR 511, 544 (Gleeson CJ), 546–7 (Gaudron J), 556–7 (McHugh J), 577–81 (Gummow and Hayne JJ), 625 (Callinan J).

^[98] Ibid 544 (Gleeson CJ), 555 (McHugh J), 578–9 (Gummow and Hayne JJ), 621 (Callinan J).

^[99] Ibid 535 ('Duncan').

^[100] Ibid 544 (Gleeson CJ), 557 (McHugh J), 580–81 (Gummow and Hayne JJ).

^[101] Ibid 545–6 (Gleeson CJ).

^[102] See Graeme Hill, 'The Demise of Cross-Vesting' (1999) 27 Federal Law Review 547. See also Nicholas Aroney, 'The Constitutional Demise of the Cross-Vesting Scheme' (1999) 7 Insolvency Law Journal 116, 130.

^[103] (1999) 198 CLR 511, 556 (McHugh J).

^[104] Ibid 577 (Gummow and Hayne JJ).

^[105] Ibid 599 (Kirby J).

^[106] See Aroney, above n 102, 130; Graeme Hill, 'R v Hughes and the Future of Co-operative Legislative Schemes' [2000] MelbULawRw 18; (2000) 24 Melbourne University Law Review 478, 498–500.

^[107] (1999) 198 CLR 511, 557 (McHugh J).

^[108] Ibid 574 (Gummow and Hayne JJ).

^[109] Ibid 599 (Kirby J).

^[110] Ibid 601 (Kirby J).

^[111] Ibid (Kirby J).

^[112] Hill, above n 106, 498. See also Aroney, above n 102, 130.

^[113] Brian Opeskin, 'Cross-Vesting of Jurisdiction and the Federal Judicial system' in Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System (2000) 320.

^[114] Williams, above n 91, 163.

^[115] (2000) 202 CLR 535 ('Hughes'), 554–5.

^[116] Williams describes Hughes as a 'Pyrrhic victory for the Commonwealth': Williams, above n 91, 165. See also Hill, above n 106, 493.

^[117] For example, in Hughes (2000) 202 CLR 535 the conferral of State (corporations) powers on the Commonwealth was, in any case, founded on the express constitutional provision of s 51(i) since the case involved Australian investment in American securities.

^[118] Hill, above n 106, 494.

^[119] Hughes (2000) 202 CLR 535, 560–1 (Kirby J).

^[120] Ibid.

^[121] Ibid. Kirby J, therefore, believed that the Commonwealth could permit the Australian Securities and Investment Commission to incorporate companies under State law: Hughes (2000) 202 CLR 535, 574–85.

^[122] Australian Constitution s 51(xxxvii).

^[123] Williams, above n 91, 166–7.

^[124] Ibid.

^[125] Ibid 168.

^[126] See Parliamentary Joint Committee on Corporations and Securities, Parliament of Australia, Report into the Provisions of (a) the Corporations (Commonwealth Powers) Act 2001 (NSW); and (b) the Corporations Bill 2001 and the Australian Securities and Investments Commission Bill 2001 (2001), 15.

^[127] Williams, above n 91, 168.

^[128] Ibid.

^[129] Jonathan Feldman, 'Separation of Powers and Judicial Review of Positive Rights Claims: the Role of State Courts in an Era of Positive Government' (1993) 24 Rutgers Law Journal, 1057; Neuborne, above n 10; Hershkoff, 'Positive Rights and State Constitutions: The Limits of Federal Rationality Review', above n 1, 1156; Hershkoff, 'Welfare Devolution and State Constitutions', above n 1, 1403; Helen Hershkoff, 'State Courts and the 'Passive Virtues': Rethinking the Judicial Function' (2001) 114 Harvard Law Review 1833; Brennan, above n 10, 535; Kincaid, above n 1, 913.

^[130] See, eg, Christine Fletcher, Does Federalism Safeguard Indigenous Rights? (1999).

^[131] See McCawley v The King [1918] ArgusLawRp 83; (1918) 26 CLR 9. The one and only constitutional limitation on State constitutional power being that legislative enactments need to be for the 'peace, welfare and good government' of the State. The States (and colonies) have a history of realising interventionist legislative measures and several writers have documented their legislative programmes: see William Pember Reeves, State Experiments in Australia and New Zealand (1969); Michael Quinlan, 'Pre-Arbitral Labour Legislation in Australia' in Stuart MacIntyre and Richard Mitchell (eds), Foundations of Arbitration: the Origins and Effects of State Compulsory Arbitration, 1890–1914 (1989); Paul Finn, Law and Government in Colonial Australia (1987), 34–67; David Neal, The Rule of Law in a Penal Colony (1991).

^[132] See McCawley v The King [1918] ArgusLawRp 83; (1918) 26 CLR 9; Trethowan v Peden [1930] NSWStRp 90; (1930) 31 SR (NSW) 183.

^[133] See Greg Carney, 'Centenary of State Constitutions' in Glenn Patmore and Gary Jungwirth (eds), The Big Makeover: a New Australian Constitution (2002) 115. In an American context, see Hershkoff, 'Positive Rights and State Constitutions: The Limits of Federal Rationality Review', above n 1, 1131.

^[134] See the various commentaries on the 'new judicial federalism': Feldman, above n 129, 1057; Neuborne, above n 10, 883; Hershkoff, 'Positive Rights and State Constitutions: The Limits of Federal Rationality Review', above n 1, 1156; Hershkoff, 'Welfare Devolution and State Constitutions', above n 1, 1403; Hershkoff, 'State Courts and the 'Passive Virtues': Rethinking the Judicial Function', above n 129, 1833; Brennan, above n 10, 535; Kincaid, above n 1, 913; cf Gardner, above n 67, 761.

^[135] Brennan, above n 10, 535.

^[136] Hershkoff, 'Forword: Positive Rights and the Evolution of State Constitutions', above n 1, 803-4. See also G Alan Tarr 'Models and Fashions in State Constitutionalism' (1998) Wisconsin Law Review 729, 739.

^[137] Hershkoff, 'Positive Rights and State Constitutions: The Limits of Federal Rationality Review', above n 1, 1135.

^[138] Hershkoff “Welfare Devolution and State Constitutions”, above n 1, 1408- 1416; Lynn A. Baker and Ernest A. Young “Federalism and the Double Standards of Judicial Review” (2001) 51 Duke Law Journal, 75 at 159. .

^[139] The American State constitutions have flexible amendment procedures. For example, Article 18 of the California State Constitution simply requires a two-thirds majority of the Legislative Assembly to amend the Constitution. Similarly, Article 16 of the Ohio State Constitution requires a three-fifths majority of the Legislative Assembly to effect amendment.

^[140] Hershkoff, 'Foreword: Positive Rights and the Evolution of State Constitutions', above n 1, 805–6.

^[141] Ibid.

^[142] Ibid 817.

^[143] Hershkoff, 'State Courts and the 'Passive Virtues': Rethinking the Judicial Function', above n 129, 1839.

^[144] Ibid 1840.

^[145] Ibid 1900.

^[146] Feldman, above n 129, 1057.

^[147] Jeffrey Dyess, 'A Mandate to the Legislature or Serious Judicial Intervention? A Remedy in the Alabama Public School Equity Funding Case' (1994) 25 Cumberland Law Review 133.

^[148] Brennan, above n 10, 548.

^[149] Ibid.

^[150] Neuborne, above n 10, 885.

^[151] Ibid.

^[152] Ibid.

^[153] Ibid 887.

^[154] See Dyess, above n 147, 135 who provides a commentary on Lujan v Colorado State Board of Education, 649 P 2d 1005 (Col, 1982) and Jiggetts v Grinker, 553 NE 2d 570 (NY, 1990) where State courts refused to intervene in issues of educational policy.

^[155] Neuborne, above n 10, 885.

^[156] Hershkoff, 'State Courts and the 'Passive Virtues': Rethinking the Judicial Function', above n 129, 1920.

^[157] Neuborne, above n 10, 885.

^[158] See Galligan, above n 5, 1.

^[159] For commentaries on how this inequality in revenue collection is inhibiting the States from undertaking significant (progressive) policy responsibilities see Webb, above n 5, 1; Galligan, above n 5, 1; Denis James, 'Federalism Up in Smoke? The High Court Decision on State Tobacco Tax' (1997) 1 Current Issues Brief 2.

^[160] Webb, above n 5, 2. For example, in the 1996–97 financial year, the Commonwealth raised $115 billion ─ representing over 79 percent of total Commonwealth and State taxation.

^[161] The latter sources of income may have also been removed from State control with the recent widening by the High Court of s 90 of the Constitution: see Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465; see also John Williams, 'Come in Spinner: Section 90 of the Constitution and the Future of State Government Finances' [1999] SydLawRw 24; (1999) 21 Sydney Law Review 627.

^[162] For proposals seeking to decentralise federal revenue collection: see the Federal-State Relations Committee, Parliament of Victoria, Report on Federalism and the Role of the States: Comparisons and Recommendations (1999) ch 11.

^[163] James, above n 159.

^[164] John Harrison, 'Total Tax Revenue: Major Reform Issues' (1996) 2 Current Issues Brief 1.

^[165] See the Federal-State Relations Committee, above n 162, Ch 11, especially 225.

^[166] See eg, Raoul Blindenbacher and Arnold Koller (eds), Federalism in a Changing World: Learning From Each Other. Scientific Background, Proceedings and Plenary Speeches of the International Conference on Federalism (2003).

^[167] See Clifford Larsen, 'States Federal, Financial, Sovereign and Social: A Critical Inquiry into an Alternative to American Financial Federalism' (1999) 47 American Journal of Comparative Law 429, 469.

^[168] Bratton and McCahery, above n 6, 217. In this context, see Bratton and McCahery's consideration of the 'race to the bottom' thesis which it has been suggested that 'competitive federalism' may potentially produce.

^[169] Charles Tiebout, 'A Pure Theory of Local Expenditures' (1956) 64 Journal of Political Economy 416.

^[170] Bratton and McCahery, above n 6, 230.

^[171] Ibid.

^[172] See Scott Allard, 'Revisiting Schapiro: Welfare Magnets and State Residency Requirements in the 1990s' (1998) 28(3) Publius 45; Richard Nathan and Thomas Gais, 'Early Findings About the Newest Federalism for Welfare' (1998) 28(3) Publius 95; Sanford Schram 'Introduction ─ Welfare Reform: A Race to the Bottom?' (1998) 28(3) Publius 1.

^[173] Allard, above n 172, 45.

^[174] Nicholas Aroney, 'Fiscal Competition' in Blindenbacher and Koller (eds), above n 166, 497.

^[175] Richard Revesz, 'Rehabilitating Interstate Competition: Rethinking the Race-to-the-Bottom Rationale for Federal Environmental Regulation' (1992) 67 New York University Law Review 1210, 1242; Richard Revesz, 'The Race to the Bottom and Federal Environmental Regulation: A Response to the Critics' (1997) 82 Minnesota Law Review 535.

^[176] Wallace Oates and Robert Schwab, 'Economic Competition Among Jurisdictions: Efficiency Enhancing or Distortion Inducing' (1988) 35 Journal of Public Economy 333; W A Fischel, 'Fiscal and Environmental Considerations in the Location of Firms in Suburban Communities' in Edwin Mills and Wallace Oates (eds), Fiscal Zoning and Land Use Controls: the Economic Issues (1975); Daniel Farber, 'Environmental Federalism in a Global Economy' (1997) 83 Virginia Law Review 1283.

^[177] Aroney, above n 174, 498.

^[178] Ibid.

^[179] See Larsen, above n 167.

^[180] Lujan v Colorado State Board of Education, 649 P 2d 1005 (Col, 1982); Jiggetts v Grinker, 553 NE 2d 570 (NY, 1990).

^[181] See especially, Lujan v Colorado State Board of Education, 649 P 2d 1005 (Col, 1982).

^[182] Dyess, above n 147, 135. See, eg, Edgewood Independent School District v Kirby, 777 SW 2d 391 (Tex, 1989).

^[183] Dyess, above n 147, 137.

^[184] See Greenwood, above n 2.

^[185] Cf Michael Coper, Encounters with the Australian Constitution (1987) 396; Colin Howard, Australian Federal Constitutional Law (1985) 585; William Wynes, Legislative, Executive and Judicial Powers in Australia (1976) 541; William Harrison Moore, The Constitution of the Commonwealth of Australia (1910) 603.

^[186] Greenwood, above n 2, ch 4; Craven, above n 8, 89.

^[187] See Greenwood, above n 2; Laski, above n 2

^[188] Greenwood, above n 2, 117–74.

^[189] See the Federal-State Relations Committee, above n 162, ch 8.

^[190] See Craven, above n 8, 85; cf Wynes, above n 185, 542; Howard, above n 185, 585; Coper, above n 185, 395–7.

^[191] Craven, above n 8, 89.

^[192] Another consequence of this would be that s 52 would be redundant: ibid.

^[193] Ibid 90.

^[194] [1981] WAR 179 at 183 (Burt CJ). See also China Ocean Shipping v South Australia [1979] HCA 57; (1979) 145 CLR 172.

^[195] Craven, above n 8, 91.

^[196] Ibid.

^[197] Ibid.

^[198] Ibid.

^[199] Cf Moore, above n 185, 321; Wynes, above n 185, 542; Coper, above n 185, 395–7.

^[200] Craven, above n 8, 103.

^[201] Wynes, above n 185, 542.

^[202] Ibid 541.

^[203] Coper, above n 185, 397. See also Moore, above n 185, 603.

^[204] Coper, above n 185, 397.

^[205] Howard, above n 185, 585.

^[206] Ibid.

^[207] See Craven, above n 8, 108–9.

^[208] See Australian Constitution, ch I, pt III.

^[209] See Australian Constitution, ch III.

^[210] Craven, above n 8, 108.

^[211] In this respect, see Nicholas Aroney, 'A Public Choice? Federalism and the Prospects of a Republican Preamble' [1999] UQLawJl 9; (1999) 20 University of Queensland Law Journal 262.

^[212] Mark Moshinsky, 'Re-Enacting the Constitution in an Australian Act' (1989) 18 Federal Law Review 134, 146.

^[213] Ibid 135.

^[214] Ibid.

^[215] Ibid.

^[216] Rodden and Rose-Ackerman, above n 10, 1523.

^[217] See, eg, Painter, Collaborative Federalism, above n 72, 1.