Worldwide support for federalism is greater today than ever before.
The old attitude of benign contempt towards the federal political
structure has been replaced by a growing conviction that it enables a
nation to have the best of both worlds, those of shared rule and
self-rule, coordinated national government and diversity, creative
experimentation and liberty. Within Australian political-intellectual
circles, however, attitudes to federalism range from viewing it as a
necessary evil to, as one recent work puts it, ‘waiting for an
appropriate time in which to abolish our spent State legislatures’.
To some extent those attitudes are understandable. The pattern of
constitutional interpretation followed by the High Court over most of
this century has consistently tended to favour the expansion of
Commonwealth power at the expense of the states. This has made it harder
for the states to perform their proper role, so that the advantages of
constitutionally decentralised government are increasingly difficult to
identify and evaluate. These advantages are discussed below.
1. The right of choice and exit
A federal system allows citizens to compare political systems and ‘vote
with their feet’ by moving to a state they find more congenial. That
this right of exit is a political right as important but much older than
the right to vote is obvious from the events leading up to the fall of
the Soviet Union. The communist governments were the only regimes in
history ever to suppress the right of exit almost completely. The Soviet
authorities well knew that if their subjects should ever seize or be
granted that right, the communist system would instantly collapse. And
that, of course, is what happened.
The citizen in a liberal unitary state who is dissatisfied with the
national government may move to another country. But it is becoming
harder to obtain a permanent resident visa for the kind of country to
which one might wish to emigrate. Globalisation notwithstanding,
immigration is increasingly unpopular with voters the world over.
In a federation, however (including a quasi-federal association such
as the European Union), there is complete freedom to migrate to other
states. This has occurred on a massive scale in Australia, especially
during the 1980s and early 1990s when Australians moved in huge numbers
from the then heavily governed southern states to the then wide open
spaces of Queensland. When centralists give federalism the disparaging
label ‘states’ rights’, they are therefore obscuring the fact that
it is above all the people’s right to vote with their feet that
is protected by the constitutional division of sovereignty in a federal
2. The possibility of experiment
Federalism allows and encourages experimentation in political, social
and economic matters. It is more conducive to rational progress because
it enables the results of different approaches to be compared easily.
The results of experience in one’s own country are also less easily
ignored than evidence from foreign lands. All this is particularly
important in times of rapid social change. As Karl Mannheim pointed out,
‘every major phase of social change constitutes a choice between
alternatives’, and there is no way a legislator can be certain in
advance which policy will work best.
Nonetheless, hardly a week passes without some activist group
lamenting the ‘inconsistent’ (the term being misused to mean merely
‘different’) approaches taken by state laws and calling for uniform
‘national’ legislation to deal with a particular problem. Behind
these calls for uniformity lies a desire to impose the activists’
preferred approach on the whole Commonwealth, precisely so that evidence
about the effectiveness of other approaches in Australian conditions
will not become available.
Centralists also tend to assume that uniformity and centralisation of
the law bring greater legal and commercial certainty. But uniformity and
certainty are quite unrelated. That is clear from experience with the
federal tax laws and family tax law, which are uniform but at the same
time severely lack certainty or predictability. Sometimes the gains from
nationwide uniformity will outweigh the benefits of independent
This will usually be the case in areas where there is long experience
to draw on, such as defence arrangements, the official language, railway
gauges, currency, bills of exchange, weights and measures, and sale of
goods. But experimentation has special advantages in dealing with the
new problems presented in a rapidly changing society, or in developing
new solutions when the old ones are no longer working.
3. Accommodating regional preferences and diversity
Unity in diversity.
The decentralisation of power under a federal constitution gives a
nation the flexibility to accommodate economic and cultural differences.
These characteristics correlate significantly with geography, and state
laws in a federation can be adapted to local conditions in a way that is
difficult to achieve through a national government. By these means
overall satisfaction can be maximised and the winner-take-all problem
inherent in raw democracy alleviated.
Paradoxically, perhaps, a structure that provides an outlet for
minority views strengthens overall national unity. Without the guarantee
of regional self-government, for instance, Western Australia would not
have joined the Commonwealth. If that guarantee were abolished, the West
might secede, perhaps taking one or two other states with it. Federalism
thus has an important role, as Lord Bryce observed, in keeping the peace
and preventing national fragmentation.
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