Should The Australian Constitution Protect The Sovereignty Of The States?

The Australian Constitution explicitly enumerates constitutional laws to protect the sovereignty of the States.

Sovereignty is a nation having legitimate power to govern itself independently of foreign powers . The Australian Constitution is often referred to as the ‘people’s document’. It explicitly outlines the strict “structure, powers and procedures” that must be adhered to by Parliament. The Founding Fathers who played a significant role in federating Australia, has the foresight to protect the sovereignty of individual states during the drafting process of the Australian Constitution. The sovereignty of the states was achieved by providing equal representation in the Senate for the six original colonies. The Senate, referred to as

the “house of review”, protects the interests of the Australian population by restricting the legislative power the government of the day may exercise . Part II, section seven of the Australian Constitution outlines, that each State will have equal representation in the Senate regardless of population size . This ensured that vulnerable States, such South Australia (SA) have an equal opportunity to voice their concerns and prevented the dominating states, Victoria and New South Wales, from “the tyrannic exercise of the power” over the minority; hence protecting the sovereignty of the States.

The division of power enables States to have legislative powers not enumerated in section 51 and section 52 of the Australian Constitution and therefore, protecting the sovereignty of the States.

For example, in SA, the new Royal Adelaide hospital expected to open in 2016, was an initiative by the State Government . This occurred because it is a residual power of the state and as a result, the Federal Government is unable to make laws concerning the health system . This is a key factor that ensures that State priorities are met, as the Federal Government can be ignorant to each States necessities, due to the location of Parliament House. Potentially, the Federal Government could have neglected the construction of a new hospital as a key priority for the state. Hence, the division of powers protects the sovereignty of the States by providing them with legislative power not enumerated in section 51 and section 52 of the Australian

Constitution.

Documented throughout the Australian Constitution are the restrictions of power exercised by Federal Parliament in order to protect the sovereignty of the States. An example enumerated in section 51 (ii) is, “taxation; but so as not to discriminate between States or parts of the States” . This constitutional law indicates that although parliament has direct control on the subject of taxation, it must ensure that the laws surrounding taxation are consistent amongst all Australian States and territories . Furthermore, the Australian Constitution acknowledges that each State has responsibilities in which Federal Government may not intervene, as included in section 51 (xiii), which enumerates that Parliament is vested with the power to dictate matters concerning banking, other than State banking . Again, the same rule applies to State insurance, which is listed in Section 51, (xiv) . Both examples demonstrate that the responsibilities granted to individual States and the restrictions employed on the Federal Government by the Founding Fathers, Alfred Deakin, Henry Parkes, and Edmund Barton , ensured that the sovereignty of the States is protected.

However, the Australian Constitution compromises State sovereignty through the inconsistency rule in Section 109, which states “When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid” .

Hence emphasising that ultimately parliament overrules State laws and therefore, has the power to dictate each States development . Alternatively, this ensures uniformity throughout Australia; thus establishing social cohesion by ensuring a harmonious environment . This facilitates social progress by amending laws to include the morals and values of society at that time . Again, this reinforces the purpose of federation and the formation of the Australia Constitution by the Founding Fathers who had the foresight to protect the sovereignty of the

States.

Thus, constitution laws documented within the Australian Constitution protect the sovereignty of the States, to the extent of federating Australia.