Federalism Project

 

Project Director: George Williams

The Federalism Project aims to contribute to legal scholarship crucial for a modern debate about improving Australia’s constitutional division of power.

The project’s first phase, under the Directorship of Dr Paul Kildea, was focused upon the constitutional issues arising from efforts by the governments of the Australian polity to practice ‘co-operative federalism’. The importance of this approach was evident in the ambitious reforms of the ambitious reforms they agreed upon in the 2008 Intergovernmental Agreement on Federal Financial Relations. It continues to underpin the interaction between the Commonwealth and States through the Council of Australian Governments (COAG). The efficacy of co-operative federalism hinges greatly on the institutional standing and processes of COAG, a matter addressed by this project through asking whether placing that body on a statutory, and ultimately, constitutional footing would be both feasible and desirable. The project explored concerns about the democratic deficit created by executive federalism, both in terms of reduced capacity for parliamentary oversight and constrained opportunities for public input and participation in policy creation around the COAG meeting table.

Since 2012, the projects second phase, under the Directorship of first Shipra Chordia and now Sangeetha Pillai, the project has approached co-operative federalism through the prism of the High Court’s decision in Williams v Commonwealth (2012). In that case, the Commonwealth executive’s direct funding of the National Schools Chaplains Program was declared invalid. The Court’s reasoning emphasised both a requirement of statutory authorisation and concern at the ‘bypassing’ of the States through avoidance of the grants power in s 96 of the Constitution. The significance of the Williams case as one in which the Commonwealth’s power was subjugated to structural considerations arising from Australian federalism has been explored by members of the project team in numerous publications. The Commonwealth Parliament’s legislative response to the Court’s decision was itself the subject of a successful constitutional challenge in Williams v Commonwealth (No 2) (2014). Following that case, there are signs that Commonwealth spending practices, and parliamentary oversight of the same, are changing in response to the new strictures insisted upon by the High Court. The Commonwealth Parliament's legislative response to the Court's decision was itself the subject of a constitutional challenge in Williams (No 2) in a judgment handed down in June 2014.

This project has been supported through the Australian Research Council’s Discovery Project Scheme from 2009. Earlier work, which culminated in a Special Thematic Issue of the University of New South Wales Law Journal ((2008) 31(2) – ‘Australian Federalism’) was supported by an internal UNSW Goldstar grant.

A Federalism Resources Page is available here.