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Part 2 · Federalism

Power split between the centre and the States, money flowing the other way, and the narrow path by which a State Parliament can bind its future self. The essay lives in the gap between the federal design and the way it actually operates; the hypothetical lives in manner and form.

Ideas and cases at a glance

Authority	In a line
Constitution ss 51, 106, 109	Enumerated concurrent central powers, State constitutions continued, Commonwealth paramountcy on inconsistency
Constitution s 96	Financial assistance to any State on such terms and conditions as the Parliament thinks fit
McCawley v The King	A State Parliament is "master of its own Household": its constitution is alterable by ordinary legislation
Australia Acts 1986 s 6	Manner and form binds only laws respecting the constitution, powers or procedure of the Parliament, and only if entrenched
Carney	The entrenchment doctrine: the very narrow band, double entrenchment, and the paradoxes
Saunders and Crommelin	The reform critique: executive federalism, an opaque intergovernmental system, a Senate that is no States' house

The federal design

Federalism divides power between a central polity and constituent States, each deriving its status from the Constitution: s 106 continues the State constitutions. The design has four features. A written and rigid constitution. Enumerated central powers in s 51, concurrent with State power but subject to s 109 paramountcy where laws are inconsistent. A States' house, the Senate. And umpirage by the High Court. Hold that list, because the examinable critique is that almost every feature now works differently from the design.

RULE. arrowFederalism divides power between the Commonwealth and the States under a written rigid constitution: enumerated concurrent powers (s 51), State constitutions continued (s 106), Commonwealth paramountcy on inconsistency (s 109), with the High Court as umpire.

The money: s 96 and fiscal dominance

Section 96 lets the Parliament grant financial assistance to any State "on such terms and conditions as the Parliament thinks fit". The conditions power is very broad and may reach matters outside the Commonwealth's other heads of power, because a State is free to decline the grant, so a State that accepts the money is taken to accept the terms. Combine that with the Commonwealth's dominance of revenue and you have the engine of vertical fiscal imbalance and of tied grants: the States carry service responsibilities their own revenues cannot fund, and the Commonwealth buys policy influence in fields it could not legislate for directly.

RULE. twistSection 96 conditions can reach beyond the Commonwealth's other heads of power, because acceptance is voluntary: a State free to decline is taken to accept the terms with the money. The twist is that the formal freedom to decline is, for a revenue-starved State, rarely a real one.

Trap. Resisting conditions is mostly political, not legal. A State's legal ground to resist a s 96 condition is weak precisely because acceptance is voluntary. So do not argue a clean invalidity. Argue instead that where a condition reaches privileged or rights-bearing material, the principle of legality demands clear words (Coco), and press the federalism and accountability critique: executive federalism, opacity, distorted responsibility. That combination is the examinable answer.

The critique: executive federalism

The evaluative material is examinable in its own right. Saunders and Crommelin argue that Australian federal democracy needs reform: the Senate no longer operates as a States' house, intergovernmental relations are executive-dominated and opaque, a pattern called executive federalism, and reform should reconnect federal design with democratic accountability. Bongiorno supplies the political history: the party system overwhelmed the federal design almost from the beginning. For essays, weigh the advantages of federalism, choice between jurisdictions, experimentation, checks on concentrated power, regional fit, against duplication, blame-shifting and vertical fiscal imbalance.

RULE. scalesThe federalism essay is a weighing exercise with named authors: the design's virtues (choice, experimentation, checks, regional fit) against its pathologies (duplication, blame-shifting, fiscal imbalance, executive federalism). Cite Saunders and Crommelin for the critique and take a position on whether the design or its operation is at fault.

State constitutions and manner and form

Master of its own household

State constitutions are ordinary statutes, alterable by ordinary legislation unless validly entrenched. A State Parliament is "master of [its] own Household" (McCawley v The King), and its plenary power to make laws for "peace, welfare and good government" is not substantively limited. The default, then, is flexibility: a later Act simply prevails over an earlier one, constitution included.

RULE. arrowA State constitution is an ordinary statute alterable by ordinary legislation unless validly entrenched (McCawley). Start every manner and form problem from this default.

When a State Parliament can bind itself

The exception is narrow and technical. A manner and form requirement binds a State Parliament only if imposed by a higher law. Under s 6 of the Australia Acts, a law "respecting the constitution, powers or procedure of the Parliament" is of no force unless made in the manner and form required by an earlier law. Two checks discipline the provision. First, subject matter: the band is "very narrow", confined to the institution of Parliament itself, so ask whether the later law really is one respecting the constitution, powers or procedure of the Parliament. Second, entrenchment: the requirement is effective only if doubly entrenched, meaning the provision imposing the special procedure is itself protected by the same procedure. A singly entrenched clause "can simply be repealed by ordinary legislation" (Carney).

RULE. checklistManner and form succeeds only if every box ticks: a higher law imposes the requirement (Australia Acts s 6); the later law is one respecting the constitution, powers or procedure of the Parliament; and the requirement is doubly entrenched. Miss any one and the ordinary repeal wins (McCawley).

Trap. Single entrenchment fails. An unprotected manner and form clause can simply be repealed by ordinary legislation, then the once-protected provision follows it. Queensland abolished its upper House in 1922 after voters had rejected abolition at referendum, "contemptuous disregard for the peoples' view" (Carney). Check the subject matter and the double entrenchment before you rely on s 6, in that order.

Trap. The bare-majority paradox. A simple majority can entrench a super-majority requirement, binding future Parliaments by a procedure the binding law itself never satisfied, "a constitutional quagmire" in tension with both parliamentary sovereignty and democracy (Carney). An H1 essay names the paradox instead of treating entrenchment as an unqualified good.

Recognition and the agility of State constitutions

The flexibility has a constructive side. Constitution Act 1975 (Vic) s 1A recognises Aboriginal people, and all six States achieved constitutional recognition without referendum between 2004 and 2016, usually with non-justiciability clauses. That agility is exactly what the Commonwealth Constitution, alterable only by referendum, lacks. Use the contrast in any essay on constitutional change.

The method

Attack plan. Five steps for a manner and form problem. 1. Start from the default: the State constitution is an ordinary statute and the later Act prevails (McCawley). 2. Identify the alleged manner and form requirement and the higher law said to impose it (Australia Acts s 6). 3. Test subject matter: is the later law really one respecting the constitution, powers or procedure of the Parliament? The band is very narrow. 4. Test double entrenchment: is the requirement itself protected by the same procedure? 5. Conclude: if both tests pass, the non-compliant law is of no force; if either fails, the ordinary repeal succeeds.

RULE. staircaseDefault, requirement, subject matter, double entrenchment, conclusion: climb in that order. Students who leap to s 6 without first stating the McCawley default argue the exception before the rule and lose the structure marks.

Worked example

Facts. A State Constitution Act provides that no Bill "abolishing or altering the composition of the Legislative Council" may be presented for assent unless approved by referendum. The entrenching section itself is not protected by any special procedure. A later Parliament passes, by ordinary majorities, an Act abolishing the Council, without a referendum. Valid?

A Pass answer says. Under s 6 of the Australia Acts a law respecting the constitution, powers or procedure of the Parliament must follow the required manner and form, and abolishing the Council is clearly such a law. No referendum was held, so the abolition Act is of no force. This looks rigorous but misses the decisive check: it never asks whether the entrenching section was itself entrenched.

An H1 answer says. The default is that a State Parliament is master of its own household and its constitution is alterable by ordinary legislation (McCawley), so the referendum requirement binds only if s 6 of the Australia Acts is engaged and the entrenchment holds. Subject matter is satisfied: abolition of a chamber is squarely a law respecting the constitution of the Parliament. But the entrenching section is only singly entrenched, and an unprotected manner and form clause can simply be repealed by ordinary legislation. The abolition Act, as the later ordinary enactment, impliedly repeals the unprotected requirement and then operates according to its terms, which is precisely how Queensland lost its upper House in 1922 despite a referendum result the other way. Conclusion: the abolition is valid, and the answer closes on the paradox the drafters ignored, that entrenchment is only as strong as its own protection.

Critical pitfalls and counter-arguments

Applying s 6 without both checks. Subject matter first, double entrenchment second. Either failure returns the problem to the McCawley default.
Reading the s 6 band widely. "Constitution, powers or procedure" is a very narrow class about the institution of Parliament itself, not a licence to entrench any policy a government holds dear.
Arguing a State can legally refuse s 96 conditions. The legal ground is weak because acceptance is voluntary. The strong answer runs legality (Coco) on rights-reaching conditions plus the executive federalism critique.
Treating the Senate as a working States' house. It "fell almost immediately into party political divisions". Use the design in the first half of the essay and the reality in the second.
Praising entrenchment uncritically. The bare-majority paradox cuts against it: a simple majority binding the future to super-majorities sits uneasily with parliamentary sovereignty and with democracy itself. Engage the tension rather than assuming entrenchment is virtue.

Take it to the practice bank

Federalism is examined as an essay, and manner and form as a technical hypothetical. In the Principles of Public Law practice bank, the cross-topic exam scenarios put State legislative power and Commonwealth paramountcy to work inside larger problems, and the principle of legality you will use against a rights-reaching grant condition is drilled directly in the Statutory Interpretation and Protecting Rights problems, each with a realistic Pass answer, an H1 model answer and the examiner's comments.

Practice prompts

Rewrite the worked example with the entrenching section doubly entrenched, and notice how every step after step four changes: the abolition Act is now of no force, and the essay question becomes whether that outcome is democratic.
Draft the s 96 paragraph for an essay on Commonwealth power over housing: the breadth of the conditions power in two sentences, the voluntariness fiction in one, and the legality plus accountability answer a State should actually run.
Write the executive federalism critique in five sentences, with Saunders and Crommelin named, then answer it in three: what the design still delivers despite the practice, and what reform would reconnect it to accountability.

Check your understanding

Auto-marked drills. Answer, then see the authority in the feedback.