Resisting Centralist Power – Part 1

In 1901, when six individual British colonies came together as a federation, it was in an environment of extensive and, at times, torrid debate. While there was widespread acceptance that the colonies could achieve together what they could not achieve alone, there was also apprehension about the extent to which the power to govern would become centralised.

The enthusiasm and sense of expectation surrounding the birth of a nation was tempered by concerns about the future autonomy of individual colonies. The smaller colonies were also apprehensive about the power and influence the larger colonies might exercise.

As a consequence, the process leading to the formation of the Australian Constitution was both painstaking and torturous.

One can imagine how much this would have helped the fledgling Commonwealth-State relationship.

During the first of the convention debates in 1891, Sir Samuel Griffith, who would later become the first Chief Justice of the High Court of Australia, captured the essence of concerns saying:

“We must not lose sight of the essential condition that this is to be a federation of states and not a single government of Australia. The separate states are to continue as autonomous bodies, surrendering only so much of their power as is necessary for the establishment of a general government to do for them collectively what they cannot do individually for themselves.”

In uniting as a nation, each colony agreed to cede a portion of its powers so that the nation might become “one indissoluble Federal Commonwealth under the Crown.” It is clear, both from the Constitution and from the record of the Convention debates, that the Federal government was to have significant but well-defined powers. All powers not defined in the Constitution, known as the residual powers, were to remain the province of the States. However, the ink was barely dry on the Constitution before a growing appetite for centralised power emerged.

Foundations of Power

The powers of the Commonwealth were set out in Section 51 of the Constitution, and their scope described in 39 subsections known as a head of power. While the States retained the right to legislate on these matters as well, the Constitution provided that where any inconsistency existed between Federal and State legislation, the Federal legislation prevailed.

The powers ceded to the Federal government were very wide and included interstate trade and commerce, corporations, external affairs, taxation, defence, quarantine, currency, pensions, banking and many more.

Centralisation of Power

As one might expect, the first issue on which the boundaries of authority between the States and Commonwealth were tested related to tax, with the High Court becoming the arena for argument. The gloves came off, the lawyers were primed, and the fight over money began.

The first tests came in 1904 in Peterwald v Bartley where the High Court examined whether the Constitution prohibited the States from imposing excise duty. This was followed the same year with D’Emden v Pedder, in which the power of the States to impose taxes on Commonwealth activities was rejected. 

In 1908, in response to the Constitutional requirement that any surplus tax revenues in the first decade of Federation be returned to the States, the Commonwealth enacted legislation to pay these surpluses into a trust account thereby avoiding payment to the States. One can imagine how much this would have helped the fledgling Commonwealth-State relationship.

In 1910, the Constitutional obligation that not less than 75 per cent of the Commonwealth’s customs and excise revenue be distributed to the States came to an end. While the arrangement was mandated for only the first decade of Federation, the Commonwealth terminated the arrangement as soon as it was legally able to do so, much to the ire of the States.

In uniting as a nation, each colony agreed to cede a portion of its powers so that the nation might become “one indissoluble Federal Commonwealth under the Crown.”

Commonwealth government activity and bureaucracy then began to grow rapidly, fed by its growing tax harvest. The years leading up to World War 1 (1910-1914) saw increases in Commonwealth control of the economy and in social services. In 1915, following the entry of Australia into the war, the Commonwealth introduced income tax which co-existed with income tax applied by the States.

Over the next few decades, both in the High Court and through legislation, the Commonwealth and States battled for territory in a number of areas including tax, defence and welfare services. So extreme was the discontent with the way the federation was heading that some States, most notably Western Australia, South Australia and Tasmania, contemplated secession. In 1933 a referendum was held in Western Australia.

At the time there was a Great Depression and every State was struggling. Some believed the problems were a result of Federal government policies and actions, particularly in respect of tariffs imposed to protect the manufacturing and sugar industries.

The result of the WA referendum sent shock waves through the rest of Australia with 68% of West Australians voting in favour of secession. This was about the same number who had voted to join the Federation only 33 years earlier. The desire of West Australians to separate from the Federation was not fulfilled as the British Imperial Parliament refused to act, claiming that such an action could only be taken with the consent of the Commonwealth Parliament of Australia.