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Odgers' Australian Senate Practice Thirteenth Edition

Chapter 1 - The Senate and its constitutional role

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Rationale of federalism

Federalism has been practised since ancient times, in the sense that small states have united by their governments appointing a central governing body and agreeing to carry out its decisions. Modern federalism, however, is quite different from those kinds of arrangements. It involves the people of the constituent states electing a national legislature, which has the power to make laws directly affecting the people of the states on defined subjects. This distinctive system, federalism as we now know it, was invented in 1787 by the framers of the Constitution of the United States. As it has been so widely copied elsewhere since that time, its distinctive features are often overlooked.

Apart from providing a way of persuading separate self-governing states to unite on the basis of retaining their separate identities, federalism has positive virtues, and the recognition of these virtues has contributed to its spread around the world.

The division of powers between regional and national governments has been seen as an additional safeguard of the rights of the people and against governments misusing their powers. If a bad government possesses all powers, all powers may be abused, but a national or regional government can use its powers, and the people can use their separate votes in electing those governments, to correct, to some extent, any misuse of the powers of either one.

This concept of federalism as first and foremost a safeguard was put by the framers of the United States Constitution:

[In a federation] the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.[13]

Federalism, while allowing the union of nations occupying large territories, avoids the domination of government by any single group or interest. Again, the American founders put this point very cogently:

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.[14]

Other advantages are attributed to federalism: the adaption of local policies to local circumstances; the ability of states to conduct experiments and innovations in policy without involving the whole country; a healthy competition between states for the best policies; more opportunities for citizens to participate in decision-making, to gain experience in government and to hold public office. It may be contended that these benefits may be obtained by any system of local or regional government. They are more likely to be secured, however, in a federal system in which the regional units have a constitutionally-guaranteed independent existence, and may not be terminated or controlled by a central authority.

As has been noted, federalism and bicameralism are linked because the federal character of a nation can be reflected in, and secured by, the bicameral legislature. Bicameralism and federalism both have the advantage of enabling legislative assemblies to be more effectively representative of large and diverse nations. The virtues of federalism, neglected for much of the 20th century, were rediscovered in the turmoil of recent decades:

Federalism is resurfacing as a political force because it serves well the principle that there are no simple majorities or minorities but that all majorities are compounded of congeries of groups, and the corollary principle of minority rights, which not only protects the possibility for minorities to preserve themselves but forces majorities to be compound rather than artificially simple.[15]

As the passages from the debates of the Australian founders quoted above indicate, they were well aware of the principle of compound majorities which is here identified as the essence of federalism. The same author wrote:

As the dust settles in the 1990s there are more federations than ever including more people than ever. These are the foundation stones of the new paradigm. At present there are twenty-one federations containing some two billion people, or 40 percent of the total world population. They are divided into over 350 constituent or federated states (as against 180 plus politically sovereign states).[16]

As a geographically large country, with a diverse society, Australia has reaped the benefits of the federal system. Its people frequently take advantage of the expanded political rights given to them by the system, and invoke its safeguards, for example, by electing different political parties to state and Commonwealth governments, and to the two Houses at the Commonwealth level.

13. The Federalist, No. 51, pp. 265-6.
14. The Federalist, No. 10, p. 47.
15. Daniel Elazar, Exploring Federalism, 1987, p. 2.
16. ‘From statism to federalism: a paradigm shift’, International Political Science Review, 17:4, 1996, p. 426.