Comparative Federalism: Australia Versus India

Comparative Federalism:  Australia Versus India                                      --S M Mehedi Hasan Introduction: There is no gainsaying that federal institution of different countries work differently due to their socio-political and socio-cultural arena providing room for comparative analysis. Although the two countries, Australia and India, are both federal state, there are significant differences in their federal structures .Here I have explored the nature of both the constitutions, presented legislative and executive power, described the role played by sub-national governments in the national decision making and explained dispute resolution mechanisms, earning and sharing of revenues as well as intergovernmental cooperation. Plausible connectivity between the variable has been found and, at the final stage, some recommendations have been given to improve Australian federal system. A good number of accessible journal articles on federalism concerning both the countries and relevant research reports were studied which, of course, were of great help to complete this comparative study. Comparison in Terms of Nature of the Constitutions: The Australian Constitution is a written, a changeable but difficult, and a rigid one that upholds  bicameralism with strong upper house , responsible government which is answerable to the parliament, cabinet government,  US model of federalism, constitutional monarchy as well as parliamentary democracy. Indian constitution, like the Australian Constitution, is written, flexible but maintains considerable rigidity, up holds bicameralism, parliamentary form of governments. India, on the other hand, is a ‘sovereign, socialist, secular, democratic republic’ (Chaturvedi 2007, 1). There are no special provisions relating to certain classes and communities in Australian Constitution with reservation seats in the federal parliament. On the other hand, Indian Constitution reserves seats for Scheduled Castes and Scheduled Tribes (s331), and ensures Representation of the Anglo-Indian community in the House of the People (s332) which established asymmetrical federalism. Another asymmetrical federalism in India has been clear through the special provisions giving special status of a state named Jammu and Kashmir with considerable power of self-governance (s370) whereas Australia does not have such asymmetrical features for any state. Even in India, there are some   autonomous districts and autonomous regions in tribal areas in the (s371).On the contrary, In Australian Constitution there is no such provision of autonomous region or district.  The Australian one is too difficult to change because, for the alteration, ‘it must be passed by an absolute majority each house of the parliament’ and after that it ‘shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives’ (s128) which is too procedural and time-consuming to complete. On the other hand, a bill to amend the Indian Constitution needs to be passed by the Loksabha (House of the People) and the RajyaSabha( Council of States) by a majority of not less than two-thirds of the members present and voting and adult suffrage is never required( s368). How Legislative and Executive Powers are Distributed and Shared in Australia and India: According to the s51 of the Australian Constitution, the parliament has power to make laws for the peace, order and good government of the Commonwealth with respect to forty nine subjects which, in truth distribute power between the Commonwealth and the states and describes concurrent powers. Here the  power dealing with issues like defense, trade, labor, commerce, business, protection of industries are in the jurisdiction of federal legislative body and power dealing with dealing issues like welfare, charity, social needs are within the jurisdiction of state legislature and the residual power are left to states( Perche 2014b,). Further, if there is clash between the federal and the states in terms of legislation the law of the Commonwealth will prevail (s109). Like the Australian case, the seventh schedule (s246) of Indian constitution assigns the powers and functions of the central government and states and in case of clash the federal sustains. It describes the exclusive powers of the central government in the Union List; of the states in the State List; and powers falling under the joint jurisdiction are mentioned in the Concurrent List (Singh 2007, 10-11). However, unlike Australia, the residual powers goes to the Indian Union Government instead of state governments and the central government has ‘considerable sovereign discretion over the states under s356 creating a relatively centralized federation’ (Singh 2007, 1). In India, executive powers are also shared by the Parliament because executives are directly accountable to the legislature there is fusion of legislature and executive like the Australian practice. For instance, the President of India can be impeached for the violation of the Constitution, which is solely to be decided by the Parliament(s61) Under the s239 (1) of the Indian Constitution, six Territories are administered by the President through administrators appointed by him. But, in case of Australian, the  two Territories have separate sovereign executive bodies (Cabinets) headed by Chief Ministers. Besides, the post of Vice President (s63), unlike Australia, is prevalent in India who works as the ex-officio chairman of the Council of States acts as President to discharge his functions during casual vacancies or absence of the President (s64). In Australia, Ministerial Councils act as ‘peak bodies for policy consultations between Commonwealth and State Ministers’, (Sharman 1989, 107; cited in Minson 1997, 2) to hold meetings between Commonwealth and State Ministers responsible for particular portfolios (WASCPPULA   Report 1992; cited in Minson 1997,2).They provide a ‘forum in which the component units of the federal system can come together to arrive at a common understanding of the issues’. ( Ralph 1988,10; cited in Minson 1997,2) ).  In addition, Ministerial Councils play a ‘major role in the development and oversight of national cooperative agreements and uniform legislative schemes’ (Minson 1997, 5). But, in India, there is no Ministerial Council between the Union and State Ministers to hold meetings on particular portfolios and coordinate development activities and oversee different cooperative agreements. In Australia, Council of Australian Government (COAG), ‘an intergovernmental mechanism that brings together the Commonwealth, States, Territories and Local Governments’( Mahon and Brennan 2012,98-9),  plays a vital role as a powerful  body for promoting policy reforms of national significance and takes coordinated actions especially  on issues having ‘impact on other governments or require cooperation of other governments’ (Minson 1997,6-7;Hede 1993,201;cited in Minson 1997,6). In contrast, in India, there is an Inter-State Council established by the President (s263) to investigate, inquire and recommend as well as ‘advice regarding the resolution of inter-state disputes’ but does not deal with ‘disputes between the Union and a state’ (Sarkaria et al. 2012,833 and 842).  In Australia both Ministerial Councils and the COAG are not constitutional body, whereas Inter-state Council of India belongs to the constitutional provisions (s263).  How Sub-national Governments are Represented in the National Decision-Making: In India The Rajya Sabha( Upper House of the Union Government) members are elected by the members  of state parliament members(s80) and the sub-national governments are represented strongly in the national decision making and these sub-national leaders. On the other hand, in Australia, the Senate Members are elected through adult suffrage. So there is little scope to influence the Senate by the sub national governments in national decision making. However, the Senate has equal representations from each state of Australia (6 from each state) which help to maintain balance of power between the states in national decision making. In Australia, The COAG is represented by all states’ premiers and territories’ chief ministers, and the Ministerial Councils are also represented by ministers of the concerned ministries of each states and territories and participate in national decision making. In place, the Inter-State Councils of India is represented by the concerned states’ ministers and participate in national decision making.  How Intergovernmental Disputes are Resolved: In Australia any dispute between the commonwealth and the states or between States inter se is exclusively within the jurisdiction of the High Court (s75).For instance, the High Court, in 2006, ‘brought down its judgment in a case of potentially enormous significance for Australian federalism’ (Kildea and Gelber 2008, 649) through the decision on the validity on the Commonwealth’s Workplace Relations Amendment (Work Choices)Act 2005.Like the jurisdiction of High Court of Australia, the Supreme Court of India has been provided exclusive jurisdiction (s131) to resolve intergovernmental disputes (Tripathy & Devkota 2010, 1). In Contrast, disputes related to water resources are to be resolved through constitutional power given to the parliament of India (s262) to enact laws related to interstate rivers and river-valleys. The Inter-State Water Dispute Act 1956 has been promulgated so as to implement this article and the central government is empowered to constitute a Tribunal (Section 3 - 4) and the decision of this Tribunal is final and every party is bound to give effect to this decision and the ‘jurisdiction of other courts is barred’ (Sarkaria et al. 2001). How Resources and Revenue are Divided and Shared (fiscal federalism): In Australia, federal-state financial power division and sharing of resources have created   ‘vertical fiscal imbalance’ (Twomey 2014,02;  Dollery et al. 2000,04).Again, the Commonwealth’s power to legislate on many areas not set down specifically in s51the constitution, financial provisions under s96 where the High Court gave power to impose condition on states. In 1942, the Commonwealth gained ‘monopoly on income tax which gave it the fiscal capacity to make conditional transfers to the states’ (Mahon and Brennan 2012, 93). Commonwealth’s power to raise customs and excises revenues (s86) as well as High Court’s favor to the Commonwealth regarding uniform tax have empowered the Commonwealth to leave the states ‘legally free, but financially bound to the chariot wheels of the central government’(Deakin 1902;  cited in  James 2000; cited in Perche 2014b). In India, the vertical fiscal imbalance is  as sharp as that of Australia and ‘the assignment of functions and powers, particularly tax power, has certain anomalies which gives financial strength to central government in comparison to state governments’ (Pandey and Badriotti 2007,01).To clarify, taxes on income, corporate tax, customs duties, taxes on production, taxes on wealth from non-agricultural sources are collected the central government(Singh 2007,11;Pandey and Badriotti 2007,02).In addition, the centre is given all residual tax powers which means that the taxes not mentioned in any of three the lists will go the duties of the central government(Singh 2007,11). In Australian, Commonwealth Grants Commission plays a vital role in horizontal fiscal equalization. In 1933, it empowered the federal government to enact fiscal equalization to ensure the ‘rights of all citizens to an equal opportunity of being provided with an equivalent range of public services’ (Chappel 2002, 161; cited in Mahon and Brennan 2012, 93). Likewise, Indian Finance Commission(a mechanism body formed under s281 of the Constitution)the address vertical imbalance between the federal government and the states and ensures horizontal distribution of resources among the states. Even, from time to time, the Finance Commission recommends  rescheduling and write-off of loans to promote an incentive based loan write-off to reduce the debt burden of the states’ (Rao and Sen 2011,.13). India’s horizontal distribution is constitutionally ensured by the Indian Finance Commission, whereas Australian Constitution has no provision in favor of The Commonwealth Grants Commission. Further, in contrast , Indian Constitution has many provisions for distribution of revenues between the Union/central governments and the states. There are obligatory and enabling provisions like s268, s268A.  , s269, s270, s271, s272, s275 and s276have made the horizontal distribution of resources more efficient than Australia. Mechanisms  to Assist Intergovernmental Cooperation: In Australia, Council of Australian Governments (COAG) is in charge of intergovernmental approaches to negotiate and examine processes between cooperative institutions (Galligan 1989, 3-4;Gillespie 1994,68-9; cited in Kildea and Gelber 2008, 651). Indian Constitution, there is a provision for the formation of an Inter-State Council(s263) by the president to discharge certain functions involving ‘inter-state dimension’(Sarkaria et al. 2001, 833) for “inquiring into and advising’ [s263 (a)],‘investigating’ [s263 (b)] and ‘making recommendations’[s263(c)] upon disputes which may arise between states or between the Union and the sates. On the contrary, there is no constitutional provision of such Inter-State Council to resolve intergovernmental disputes in Australia.  Recommendations: i)              Australia can follow the constitutional amendment procedures of India because with the space of time it has been necessary to develop new formula of governance, policy implication and development planning. For this, easy and less time-consuming procedure of constitutional amendment in Australia will be of utmost value. ii)                Like the election procedures of Rajya Sabha( Upper House) Members of India, Australian Upper House’s Members can be elected by the member of the States’ Assembly so as to avoid over centralization of power and to keep pressure on the central government by the sub-national governments in national decision making. iii)               Australia can follow the Indian model of minimizing disputes on Inter-State Rivers and Water –Valleys.  For this Australia can get their constitution amended or promulgates law to deal with deputes related to rivers and water bodies. iv)              Australia can have some asymmetrical federal features by ensuring some level of autonomy to the remotest parts with distinct socio-cultural differences as India did to a State and some districts with majority of tribal people.   Conclusion:

In fine, federalism in Australia is at once similar and different from that of India. Both the countries hold significant central control over states. Though Australia has been regarded as the most ‘centralized of all the established federation’ (Alan Fenna 2007, cited in Perche 2014a), its federal institutions are mostly working differently from those of India, ‘a relatively federalism’ (Singh 2007, 01). However, by transferring some positive federal features from India to Australia, the federalism of Australia can be enriched to a great extent.

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Pandey, SK &Badriotti,A 2007, ‘ToWhat Extent do Central Governments Erode Sub-national Jurisdiction Using Fiscal Arrangements? Perspective from India and Italy’, International Conference on Federalism, Vol.15, 2007, pp.89-109

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Mahon, R &Brennan, D 2012, ‘Federalism and the New Politics of Welfare Development: Childcare and Parental Leave in Australia and Canada’, The Journal of Federalism, Vol.43, No.1, pp.90-108

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Perche, D 2014a , Lecture 4  audio, PowerPoint Slides, Macquarie University, viewed  & listened10 October,2014.

Perche, D 2014b , Lecture 5  audio, PowerPoint Slides, Macquarie University, viewed & listened 11October,2014.

Perche, D 2014c , Lecture 6  audio, PowerPoint Slides, Macquarie University, viewed & listened  12 October,2014.