This post is written on unceded lands of the sovereign Darug people. I offer my respects to their elders and express my profound gratitude that our family may live safely here.
It has come to my attention that there are some gaps in Australian public knowledge of how Australian federalism works. While underemployed at home, I thought it might be useful to write up a bit of an explainer.
First Peoples First
There are two systems of law in this country, the first law of the land and the legal system imposed at gun point by the colonial power, the then-British empire, now reconstituted as the Commonwealth. This is not a controversial statement, it is historical and legal fact.
Historical because the law of the land was here when the British invaded and colonised the land and First Peoples; it is still here in the land and in the custodianship of First Peoples. These are ontological truths. To borrow from the Uluru Statement from the Heart, how could it be otherwise?
Legal because in 1992, the colonial law formally recognised the law of the land. I say ‘colonial’ because the High Court is a creation of the Commonwealth of Australia Constitution Act 1900 (Imp), which in turn is a creature of the British Parliament (Imperial). The court found that Aboriginal and Torres Strait Islander peoples’ traditional laws and customs pre-date the assertion of sovereignty by the British Crown; their laws survived invasion and colonisation; and can determine what English law calls ‘rights and interests’ in land. The relevant authority lies with Mabo v Queensland (No. 2) (1992) 175 CLR 1 and Native Title Act 1993 (Cth).
While the land is the source of the first law of the land, Westminster systems rely largely on ‘authority’ for legitimacy. Longevity and repetition are co-existent sources of common law legitimacy, where longevity maxes out to 1189 (Statute of Westminster 1275 (3 Edw I)), a long time in white years.
There are many other differences, and similarities, between the two systems of law in this country, which I will not elaborate on here. The purpose of these introductory points is 1) respect and protocol. As with everywhere else in the world throughout human history – when in Rome, as the saying goes – when on Aboriginal lands it is protocol to respect Aboriginal law; and 2) establish the foundational legal relationships before looking in more detail at the next level of institutional power arrangements.
That next level is the federation of former colonies into states and the creation of the Commonwealth of Australia.
Federation and federalism
The first thing to understand about English institutions is that everything is arranged hierarchically; and the hierarchy is incapable of accurately portraying its own dominance. For example, the common law is presided over by judges drawn from the landed gentry class, who apply the law to commoners. These same people declare common law to be common sense (my analysis of conservative ideology here).
You can see this same dynamic operating when Scott Morrison hectors the Australian public about ‘common sense’ as though there is such a thing as sensible positions, held in common by a whole population. There isn’t. In reality there is just a man who wields enormous socio-positional power, demanding that everybody conform to his perspective.
In a federation of former colonies such as ours, the key hierarchical concept is paramountcy. This relies on the fiction that English subjects travel overseas with the common law in their kerchiefs or wherever, and then make or interpret rules according to conditions on the ground (the Blackstonian school). But they must not make new rules that are repugnant (conflict with) the law back home, which is paramount.
Examples are when the Colonial Laws Validity Acts 1865 (28 & 29 Vict. c. 63) were passed in Westminster, laws passed by colonial legislatures were validated unless repugnant to laws passed in England to govern the dominions. In other words, imperial but not domestic British law was still paramount. Later, another Statute of Westminster 1931 (Imp) released former colonies from imperial paramountcy (eventually adopted in 1942 here).
Similarly, our Constitution has a paramountcy provision (s. 109). If the states pass a law that conflicts with Commonwealth law – such that the people can not obey both laws at once – the Commonwealth law prevails to the extent of the inconsistency.
These are institutional power arrangements, illustrated by a hierarchy of laws. We also have a hierarchy of courts, which brings me to the next set of structural frameworks: the three branches of government.
Branches of government
Most people are across the three branches of government: legislature, executive, and judiciary. In theory, each institution operates as a restraint on abuse of power by the other two. This is the ‘checks and balances’ you may recall from school civics class. Also in theory, the parliament (legislature) is sovereign.
This is a cherished but mythical democratic ideal: the parliament is sovereign because, unlike the executive and judiciary, it is elected by the people to represent us. It is cherished because democracy sounds like a nice idea (it is). It is a myth because some of the executive are appointed (public servants) while the most powerful (ministers) are also elected, ie they are politicians. This gets messy and reliant on ‘convention’ when it comes to the prime minister advising the Governor General; or partisan factions, comprised of politicians who are also legislators, defenestrating an elected leader and spilling cabinet positions in the party room.
Anyway where were we? Sovereignty.
Sovereignty is the legitimate authority to govern a territory and the population within its borders. Fun fact that illustrates this: the Vatican is not a sovereign state because it has no permanent civil population. The Australian parliament is sovereign but not supreme, contrary to what AV Dicey, who is dead, would say (little law joke for yas). This is because its authority is delimited by a written constitution. Pre-federation colonial powers – ie not encoded into the constitution as Commonwealth powers – default to the states (or, more controversially, the Governor General). You have probably heard of these ‘unwritten’ areas of governing authority as reserve powers
These are distinct ways in which the Australian federation, despite its Westminster pedigree, differs from British governance in Britain, while still being weighed down by many of its internal inconsistencies and confused lines of authority. The UK is not a federation, their constituencies are a mishmash of ‘home counties’ inextricably rooted in feudalism and boroughs, many of them ‘rotten’. And their constitution is what their law calls ‘unwritten’ which means it is not contained in a single written document.
For example, the monumental Supreme Court decision (judiciary) last year that the Prime Minister (executive) acted unlawfully when he advised the Queen (executive) to prorogue the Parliament (legislature) is not just a textbook case of ‘checks and balances’, although it is that. The judgement also seamlessly enters the body of the common law. By virtue of its authority and hierarchy of courts, the decision becomes part of their constitution.
But back to Australia.
So the judiciary is also fairly straightforward, a hierarchy of courts, from the local or county or magistrates, to the state and territory supreme courts, up to the High Court of Australia. The Supreme Courts have special status, both as constitutional (Chapter III) courts and legacy colonial institutions. More recently created courts such as the NSW Land and Environment Court or the Family Court of Australia are creatures of statute rather than the constitution and history (colonial power).
(If you are wondering about this language of created and creatures, these are legal terms of art and my little dig at northern jurisprudence, which obsesses over sources of law. In reality, the land is the source of the law where I live; and the human mind and male violence are the sources of law in the western tradition.)
The High Court sits in its original jurisdiction to determine constitutional matters. Nobody else can do this. Nothing is unconstitutional unless or until the High Court says so. If the federal parliament purports to pass a law and that law is challenged and found to be ultra vires (beyond constitutionally-endowed authority to make), the High Court will strike it down in whole or in part.
This is important: the legislature is proactive, it can draft and table and pass a law according to the ideology and platform of the party or parties in power (an aging explainer of mine (2014) here). In contrast, courts are reactive, there must be a matter filed before it and then the court determines the outcome. Occasionally the court or chief justice may be asked to provide an advisory opinion, which has the weight of high-ranking legal advice but not the authority of the court. It is profoundly undemocratic to cite advice like this to rationalise sacking a democratically elected government which has the confidence of the House.
So when people ask what is the constitutional authority of the national cabinet? the answer is not applicable. The correct question is whether there are grounds to challenge the formulation of the national cabinet in the High Court. The answer is probably no, because it is a political, not a legal entity. The answer to whether such a challenge would be successful during a pandemic is almost definitely no. The High Court tends not to intervene when executive governments are exercising emergency powers.
Why? In the current circumstances, there is global and national consensus that we are experiencing an emergency. The government, however corruptly, is elected. It is making arrangements to respond to the emergency, or so it says, with the imprimatur of state Premiers and it is the states which constitute the federation. Leaving aside the territories and their chief ministers for a moment, the states are the constituent parts of a federation created by a constitution which endows paramountcy on the federated whole.
This is Federalism 101, Commonwealth of Australia edition.
The High Court would not intervene in Morrison’s ‘national cabinet’ because such an intervention would be akin to a judicial coup. If they ‘struck down’ the national cabinet as unconstitutional, who would govern? The Governor General (executive)? The High Court bench (judiciary)? The state parliaments (legislatures), in a pre-federation arrangement of colonies, which would imply accountability to what is now a foreign power (Australia Act 1986 (Cth); Sue v Hill  HCA 30)? Her majesty’s loyal opposition, without an election and thus consent of the people?
Whither democracy? Our problem is political, not legal. Before turning to a political solution, a closer look at the trickiest – and arguably most powerful – branch of the tripartite system.
This is the branch that gives law students the most headaches, for good reason: it carries residual power of the crown. The English slaughtered each other in great numbers 400 years ago to shift sovereignty away from absolute (despotic) monarchs and toward the parliament. Yet the Crown hangs around, a proverbial bad smell, seemingly impossible to expunge entirely. Even a whole hemisphere away this remains a bit of a problem, because colonialism.
In its simplest form, the executive is the ministry (cabinet) and departments (public servants) plus the Governor General. Note that unlike in the USA, where the President appoints his (sic) cabinet, our ministers are also legislators. So there is no separation of powers, any more than there ever was, like when the highest UK appeal court was the House of Lords – the knights temporal (landed gentry) and spiritual (bishops).
Like democracy itself, separation of powers is a cherished ideal, and carries with it useful principles, erratically applied. All manmade (socially constructed) borders, such as fences and institutional power – delineations that are not rivers or mountains or oceans – the boundaries are a moveable feast, ultimately determined by armed force or threat of its use.
To illustrate, police are executive government, and so are Centrelink and prison officers, and Peter Dutton, and the Premiers and Chief Ministers, and the Governor General, and tax collectors and chiefs of staff and secretaries of Prime Minister and Cabinet. They have enormous power of governance. Decisions about denying income support to citizens, or locking you in a cell, or banishing non-citizens to off-shore detention, are all within their purview, their legal exercise of state power.
Armed agents of the state, from the army and navy and airforce to police and BorderForce, are executive government. This is even more important to know as courts shut down and Parliament sits intermittently, with a hugely reduced quorum. The traditional checks and balances on executive power are hobbled, while ever more draconian measures are introduced almost exclusively by exercising executive power.
Consider the police power to issue on-the-spot fines for being in public without reasonable excuse. The exercise of police discretion is reported as a solution, but on the evidence, this is the problem. The authorities release thousands of cruise ship passengers, a known and high infection risk, to spread out across the country. They now account for 10% of all coronavirus cases in Australia. What price paid by any minister or department head for this monumental mistake? I know the public are paying – for international travellers to be isolated in 5-star hotels – now that horse has bolted.
Or what about teenagers, who genuinely need time with each other? (Google it. They really, really do). Will teens be fined $11,000 at a skate park, when the state has made no effort to create safe spaces where they can be supervised, physically distanced but not socially isolated? What are the penalties for bosses who force young workers to do dangerous and demeaning work in return for the publicly funded ‘job keeper’ payment?
It is these executive powers, which enable armed violence of the state, that are now without even the slow and inadequate mechanisms of parliamentary or judicial oversight.
National cabinet is executive government in this federation
One headline matter of concern is that the Australian government has once again shut down the federal parliament, this time for five months. It is not prorogued, or closed pending an election. It is risen, not sitting. Resting, not dead. The government has changed the schedule of sitting days to not reconvene until August, but it will probably re-open before then, with a minimum of 31 MPs, to pass appropriation bills (explainer here).
It is worth noting that minimisation of sitting days, and thus accountability of executive government to the parliament, has happened with disturbing regularity during the current regime. By current regime I mean the Coalition government which came to office in September 2013, replaced its then-leader Tony Abbott in September 2015, and replaced his replacement in August 2018.
In between these outbreaks of chronic indiscipline and factional disunity, the Parliament has been closed for trivial, political reasons. A good example is when the Turnbull government prorogued parliament on the flimsy pretext of recalling it to pass union-busting bills. You know the bloke the press gallery said is a moderate? He used the Constitution (s. 5) for the first time since 1977 to pave the way for a double dissolution election, a move which ushered our most famous racist back into the Australian parliament, who in turn brought an actual nazi onto the Senate cross-benches. So that went well.
I am going to deal with the FAQs around federal-state responsibilities – such as rents (states) borders (federal) and national cabinet (political, not legal) – in a separate post. This is because firstly, this piece is already too long; and secondly, I want to include two other issues here before I wrap it up. One is the role of the fourth estate; and the other is a question I am asked more often than any other: what can we do?
Does the fourth estate hold government to account?
No. Media organisations are corporations, and press gallery journalists are very privileged, mostly white, people on high salaries. They have not lost trust in the government because they form their views based on personal interactions with politicians instead of how those politicians conduct themselves in high office, the way the country is governed. They are comfortable with – or ignorant to – the looming jackboot roll out, because they have press passes, and consider themselves to be exceptions to the rule.
There is another dynamic here, which sees the fourth estate march in lockstep with (tory) governments. Journalists assume the worst of the public, and governments fear loss of social order more than anything else. So both tell themselves that concealing information from the public is in the public interest, because panic. This is false. To return to the catastrophic bushfire season we just endured, there were very few examples of panic; and vast evidence of communities working together.
Hoarding toilet paper is not a breakdown of public order, but pretending it is the ‘thin edge of the wedge’, a floodgates fallacy, is convenient for government and the press. It can not and should not be extrapolated to anarchy. There is no logical line from strained toilet paper supply lines to jackboots on the street criminalising kids at skate parks while the prime minister shouts and carries on about going to school until, finally, he stops and concedes his kids are being kept home instead.
The reality is that the fourth estate is a pillar of power alongside the other three; and we can not expect gallery journalists to sacrifice self-interest for the public interest any more than we can expect Scott Morrison to put the social good ahead of his political objectives. They never will, and he never will. Public health considerations aside, these are political problems and require a political solution.
So what can we do?
My own view is that the Premiers and Chief Ministers, the Opposition and Greens and cross-benchers, and Liberal or Nationals or LNP waverers like Llew O’Brien, should move to an orderly transfer of power. I think they should insist on the necessity of recalling the parliament, and pass a no-confidence motion in the Morrison government on the floor of the House. Fear of this is the true reason the parliament has been placed in hibernation, as the lengthy introduction to this post recapped.
I think all this should be done with the goal of compelling Scott Morrison and then Anthony Albanese to visit the Governor General. I think the Morrison approach is recklessly indifferent to human life, crassly negligent of workers including unemployed workers, and nothing more than a continuation of policies that relentlessly transfer public resources to private interests; but now with more money. He has not adapted and responded to the pandemic. He is continuing on the same path, with the same agenda, the agenda that the press gallery called ‘no agenda’ throughout the 2019 campaign (which I wrote about here and here)
The example I cite in these discussion is when Menzies went on an indulgent overseas trip during the Second World War, returned to find he had lost the confidence of his party – as Scott Morrison should have when he got back from Hawaii last year. The party lost the support of independents, lost its parliamentary majority, Menzies resigned, his party lost government, and then lost the subsequent election.
The crucial point is that Labor formed government from opposition without an election, because we are not equipped to safely hold a federal election during a pandemic. There was an orderly transfer of power, from an arrogant leader out of his depth to one who governed in the national interest.