Federal theory and the formation of the Australian Constitution

Abstract

Questions which this thesis has sought to address concern the origins of the Australian federal system. What were the sources which influenced the framers of the Australian Constitution? How did those sources explain the operation of federal government? What was the design and intended function of the constituent features of the Australian federal arrangement? In their understanding of federalism the framers of the Australian Constitution were profoundly influenced by the work of James Bryce. His monumental study The American Commonwealth was based on a theory of federalism which had originated with the classic account of federal government- The Federalist. The states' rights tradition was also influential in the thinking of the framers. From these sources the Australians derived a theory of federal government which they sought to implement in the design of the Australian Constitution. The empowerment of a new Commonwealth was considered necessary for national interests, but with the safeguard of providing for the protection of the powers and privileges of the states. The framers placed much emphasis on the role that the Senate could play in defending the states against the potential power which the large states could exert through the Commonwealth. This, combined with a division of powers between the Commonwealth and the states, the review function of the High Court, and a strict amendment provision, were considered necessary to sufficiently protect the rights of the states. The first three chapters of the thesis deal with the influential sources of federal ideas: The Federalist, Bryce's American Commonwealth and the states' rights tradition. The remaining four chapters are concerned with the key features of the Australian federal system: The Senate, the division of powers, the High Court, and the arrangements for ratification and amendment of the Constitution. Show more