The Role of State Constitutions in Protecting ... - International IDEA

union are customs duties, defense, commercial regulations (banking, insurance,
copy right, interstate and overseas trade.) and a few social powers (marriage,
divorce, some social welfare schemes). Other powers including health, education,
transport and housing remain in the states. However, giving the High Court the
role of final appeal, even for state court cases, favors union supremacy over the
states in the exercise of judicial power. Likewise, giving the union the right to
redistribute tax money favors the union to expand its financial power and capacity
to influence the states. Therefore it is important for the states to clearly predetermine
which powers they would like to maintain and which powers they are
willing to give away to the union. When ambiguities or overlaps arise, the union
is likely to gain more control over time.
In Australia constitutional amendments cannot be made only by a majority vote
at the national level parliament. Majority parliamentary votes at both the national
and state levels are required. This goes a long way in protecting the rights and
powers of the states.
Saunders made several other points regarding the distribution of power between
the Union and the states. She emphasized that simply putting the rights of the
states in the state constitution is not enough and they should be written into the
federal constitution as well and some form of coordination should be established.
In Australia, state boundaries are protected by the federal constitution. There are
some self-governing territories and local governments under the state
constitutions. The northern territory, where there is the largest concentration of
indigenous people, will better serve indigenous people if it becomes a state in the
future. Now, there is an ongoing debate on whether local governments set up
under the state constitution should also be recognized in the federal constitution,
in order to protect them from being arbitrary dismantled by the state.
Federalism provides a
better framework to handle a
society already damaged by
conflicts.
... a federal culture needs
commitment to both unity
and diversity, a respect for
differences and a willingness
to share power.
Although the Australian constitution has no provision for coordination between
the union and the states, in Australia a federal culture enables a coordination
arrangement outside the constitution since there are many overlapping
arrangements in terms of the division of executive, legislative and judiciary power.
However, it is safer to put the coordination mechanism in the constitution,
especially if there is no federal culture. Saunders emphasized that shared values on
democracy, Bill of Rights, minority rights, powers of local government,
indigenous lands rights should be recognized and reinforced in both the national
and state constitutions.
Saunders stressed that federalism is more complicated and costly than a unitary
system that works well. But, federalism provides a better framework to handle a
society already damaged by conflicts. Still, the challenge is to nurture a federal
culture and to make the written constitution and formal institutions of the
federation work. She pointed out that a federal culture needs commitment to
both unity and diversity, a respect for differences and a willingness to share power.
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