Overcoming the Institutional and Constitutional Constraints of Australian Federalism: Developing a New Social Democratic Approach to the Federal Framework

Abstract

Federal Law Review Volume 34 ____________________________________________________________________________________ structure to ascertain precisely what constitutional room exists for the realisation of a distinctively social democratic agenda. 1 This ideal model which is developed in the first section repudiates the more traditional Marxian or social democratic commitment to a unitary framework 2 where there are few institutional checks on governmental power. It (thus) seeks to make a contribution to the existing social democratic literature on federalism. Such a model is then applied to the federal structure to gauge the progressive or social democratic possibilities which inhere in Australian federalism. Attention then shifts to the impediments that Australian federalism presents for a social democratic agenda and how these require the identification of new federal institutional mechanisms that have capacity to promote a more active and potentially progressive role for the Commonwealth. One mechanism that would appear to have potential to facilitate an interventionist federal role is the instrument of federal cooperation or what is called 'cooperative federalism.' As an examination of recent intergovernmental agreements will illustrate, federal cooperation is able to secure potentially transformative ends which the Commonwealth and States, individually, are unable to realise. 3 Attention is also accorded to other distinctively constitutional mechanisms of cooperation, such as the reference power. 4 As will be seen, however, constitutional cooperation between the Commonwealth and the States in order to secure important (social democratic) objectives, such as the reference of State powers to federal Parliament, would appear to be unrealistic and, in the end, unattainable. This highlights the ultimate limits of a commitment to pursuing progressive reform at the federal level (for legal theorists and practitioners on the Left) and draws attention to the need for developing pragmatic and essentially practically achievable strategies in the State realm. In this respect, the article seeks to draw a key distinction between effectuating more principled and, essentially, idealistic social democratic strategies in the federal realm and formulating more pragmatic and realistic programmes in the State sphere. In effect, where social democratic agendas are unable to be practically implemented in the federal realm they may, nevertheless, still be capable of effective, but more qualified, realisation at a purely State level. This