|Description of this GroupDescription of this Group|
Scope of Group
The Group includes Commonwealth Government agencies. Following Federation many functions passed to the Commonwealth Government, some completely, others on a shared basis.
Federation in 1901
At a Conference of Premiers which met at Hobart on 29 January 1895, it was agreed that federation "was the great and pressing question of Australian politics" and that "the forming of a Federal Constitution" was an urgent duty. (see Commonwealth of Australia Year Book No.1 1908 p.19).
Federation had, of course, been the subject of extensive discussion, negotiation and lobbying prior to that time. An enabling Act, the Federal Council Referring Act (Victoria) 1896 (No.1464) was passed by the Victorian Parliament in 1896 and similar acts were passed in the other Colonies. In March 1896, representatives were elected to the Federal Convention which subsequently met in a number of sessions in 1897 and 1898. A draft Bill was prepared and referenda were held in five of the colonies in 1899 and in Western Australia in 1900.
The agreement to federate made by the six colonies was given legal form with the passing of the (Imperial) Commonwealth of Australia Constitution Act 1900 which became operative on 1 January 1901, thereby creating the Commonwealth of Australia and a federation of six States.
Geoffrey Sawer (in Australian Government Today 13th edition, Pitson Publishing 1987, p.4) has described the terms of the federal compact by which the six colonies agreed to the sharing of power within a federation as being "that the colonies should as states in the federation retain their existing constitutions and complete apparatus of government; that a new central government should be created with Australia wide authority, similarly equipped with parliament, executive, judiciary and the subordinate machinery of government; that the states should retain a general unspecified legislative power, qualified only by the grant to the new federal authority of a specific list of powers and by a few constitutional prohibitions and that the courts should police the whole system".
Initial Division of Powers
Under the provisions of the Constitution of the Commonwealth and in particular section 51, the Federal Government was given the power to legislate with respect to the following matters: trade and commerce with other countries and among the states, taxation, customs and excise, public borrowing, defence, external affairs, immigration and emigration, naturalisation, quarantine, banking, insurance, bankruptcy and insolvency, foreign corporations, trading and financial corporations, currency and coinage, weights and measures, copyrights and patents, postal, telegraphic and telephonic services, census and statistics, marriage and divorce, invalid and old age pensions, railways, conciliation and arbitration, fisheries, lighthouses, astronomical and meteorological observations, acquisition of property, federal territories and the federal public service.
While the Federal Government was given exclusive power with respect to some matters such as defence, customs, posts and telegraph, currency and the federal territories, on many matters the States retained a concurrent legislative power. However where State law is inconsistent with federal law, the federal law takes precedence.
The Federal Government did not immediately exercise the full range of its powers, for example it was not until 1928 that federal bankruptcy legislation became operative and while a Federal Court of Bankruptcy having jurisdiction throughout Australia was established, its jurisdiction was only exercised directly in New South Wales, the Australian Capital Territory and Victoria. Elsewhere its jurisdiction was exercised by State courts. It was only with the passing of the Family Law Act 1975 and the establishment of the Family Court, that the federal authorities assumed full legal and administrative responsibility for marriage and divorce, though uniform legislation regarding divorce and matrimonial causes and marriage had been passed in 1959 and 1961 respectively.
In some cases, for example the immigration function, the Commonwealth initially took responsibility for some aspects, but there was a prolonged period of joint responsibility before the Commonwealth took over completely. In 1904 control and regulation of immigration and all aspects of non-British immigration passed to the Commonwealth, except for the monitoring of immigrant arrivals which remained with the State until 1923. The Commonwealth and State Government had joint responsibility for the administration of British Immigration Schemes, and the provision of associated reception, settlement and welfare services until 1982 when the Commonwealth assumed full responsibility for all immigration matters.
Expansion of the Federal Government's Powers
The Constitution may be amended by means of a popular referendum but few referenda have achieved the necessary support. Sawer argues that of the few that have been carried, "the most significant for inter-governmental relations have been that of 1928 validating control of federal and state governmental borrowing by a joint Loan Council"; the extension of federal powers relating to social services in 1946, and "the 1967 amendment concerning the position of the Australian Aboriginals" (Sawer, 1987 p.8).
Prior to 1967, although Aborigines were recognised as Australian Citizens under the Commonwealth Nationality and Citizenship Act 1948 - and before that as British nationals, the special laws passed by State legislatures, including Victoria, which had the expressed purpose of "protection", in effect denied Aborigines the vote, required large numbers of them to live on reservations, and gave the agencies responsible for managing their affairs considerable powers to regulate and control their property, earnings and employment. From the late 1950's there was increasing concern in Australia and internationally about policies and programs relating to Aborigines and their legal status, resulting in rapid changes in related legislation, policies and administrative arrangement. In 1967 a referendum extended voting rights to Aborigines and authorised a change to the Federal Constitution (in particular sections 51 and 127 which largely excluded Aborigines from federal jurisdiction) which by the mid-1970's was to result in the Commonwealth taking over from the States primary responsibility for policy and programs for Aborigines.
The Constitution (section 51 XXXVII) also makes provision for the State Parliaments to refer matters to the Federal Parliament but given the difficulty of achieving a unanimous reference, this provision has been rarely used.
Decisions of the High Court
The High Court of Australia was established in 1903 under the provisions of the Commonwealth of Australia Act. The justices are appointed by the Governor-General on Ministerial advice and may be removed only on address of the Houses of Parliament for "proved misbehaviour or incapacity". With the passing of the Australia Acts 1986, the High Court became the final court of appeal for both State and Federal Courts.
The High Court has frequently been required to interpret the Constitution and to decide matters concerning the definition of state and federal powers. Sawer argues that while some judgments have limited the powers of the Federal Government, the general trend of High Court interpretation has been to increase its powers, although this view is not universally held by other commentators (Sawer, 1987 p.14). Sawer cites as examples the extension of federal industrial arbitration and conciliation powers originally intended to apply to itinerant workers such as shearers to any dispute between a federally organised union and employers in more than one State, and the extension, in time of war, of powers regarding the naval and military defence of the Commonwealth to a wide range of matters from industrial and military conscription to price control. In exercising its external affairs powers and to give effect to international agreements, the Federal Government may legislate on matters which would otherwise be outside its jurisdiction. Sawer cites as examples the development of a national code of aviation law and federal laws on racial discrimination and environmental protection. A recent example of the latter was the Tasmanian Dams Case (1983) in which federal intervention to protect the Franklin River Wilderness was held valid solely under legislation based on the World Heritage Convention, 1975, and Sawer contends that as international agreements are extended to matters previously subject only to national control, the power of the Federation will be enhanced (Sawer, 1987 p.14).
As the fiscal powers of the Federal Government have increased the balance of powers between the States and the Federation has changed. Under the Constitution, the Federation was given exclusive powers in relation to customs and excise and Sawer argues that the High Court has tended to widen the definition of "excise duties" and thus has restricted the power of the States to levy indirect taxes (Sawer, 1987 p.16).
The fiscal dominance of the Federal Government was assured in 1942 when, as a temporary war measure, the Federal Parliament took over control of income taxation which had previously been a power shared between the States and the Federation. The Federal Parliament imposed a high rate of income tax, authorised the acquisition of State taxation departments and gave federal authorities precedence. The States were offered specified compensatory grants on condition that they ceased to impose income tax. In the Uniform Tax Case (1942), the High Court held this scheme to be valid though the acquisition of the State departments was held valid solely under the Federation's defence powers. Though subsequently some State governments including Victoria's argued for the return of income taxation powers to the States, political realities made such a return difficult. In the Second Uniform Tax Case (1957), the High Court affirmed the validity of the Acts and though changes have been made to the formula governing reimbursement grants to the States, income taxation has remained an exclusively federal function (Sawer, 1987 p.16-19).
The amendments to the Commonwealth Constitution in 1967 provided for the Commonwealth Parliament to make laws "for the benefit of the Aboriginal people of Australia". Under the Victorian Aboriginal Affairs (Transfer of Functions) Act of December 1974 (No.8606), the Aboriginal Affairs Act 1967 (No.7571) was repealed thus abolishing the Victorian Ministry of Aboriginal Affairs (VA 2873) and bringing into force the provisions of the Commonwealth Aboriginal Affairs (Arrangement with the States) Act 1973. This Act enabled the Commonwealth to take over primary responsibility for policy and programs relating to Aborigines. It also provided for the staff of the Victorian Ministry to be transferred to the new Commonwealth Ministry which occurred in January 1975. (NOTE: For a brief history of the function in Victoria, see VRG 58 Aboriginal Affairs.)
Location of Records
Few records from Commonwealth Agencies are held by the Public Record Office, however researchers should consult List of Holdings 2nd edition 1985, section 16.