Federalism in safe hands

1 August 2008

Newly appointed Chief Justice of the High Court of Australia, The Hon. Justice Robert French, has three primary interests, according to Sydney Law School's Associate Professor Anne Twomey - federalism, the republic and popular culture.

"It is his views on federalism, however, which will be of most importance in his future role as Chief Justice of the High Court of Australia," Associate Professor Twomey said.

In an opinion piece in today's Legal Affairs section of the Australian Financial Review, Associate Professor Twomey stated that Justice French's recent speeches indicates that he believes "...the benefits of federalism are real."

"In recent years the High Court has been rather dismissive of federalism and its role in constitutional interpretation," she said.

"Justice French, however, when reviewing the many provisions of the Constitution which encompass federal principles and invoke the need for co-operation, remarked in 2004 that 'the Constitution does make provision for what can properly be described as co-operative federalism in a way that takes that expression out of the scope of a mere political slogan.'

"Rather than concentrating on constitutional reform or the broad interpretation of Commonwealth powers as a means of adjusting federalism to meet the demands of the new global environment, Justice French has focussed on intergovernmental co-operation.

"He stressed that once a subject is treated as being of national significance, requiring a co-operative approach, it is unlikely ever to return to State control."

Associate Professor Twomey asserted that while Justice French admitted that many co-operative schemes "..are laden with complexity, difficult to administer and lack accountability," he seems to indicate that ultimately if co-operation is justified then preference should be given to the mechanism that best achieves it.

"This could be achieved by the Commonwealth Parliament exercising the 'unused potential' of its 'broad constitutional powers' or by the reference by the States to the Commonwealth Parliament of matters within their jurisdiction," she said.

Associate Professor Twomey concluded that Justice French appears to hold"...respect for federalism" and that "...he is likely to interpret the Constitution in a manner that supports, rather than frustrates, co-operative federalism."

However, she argued that he does recognise the problems of federalism and accepts the broad constitutional powers of the Commonwealth.

Nevertheless, she insisted that he is likely to view them in a federal context with "...a keen eye to accountability."

To view the entire article - Federalism in safe hands

To view a previous article by Associate Professor Anne Twomey on Federalism recently published in the Australian Financial Review - Reforming federalism without being radical

Contact: Greg Sherington

Phone: +61 2 9351 0202

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