I'm very excited about our video today because it is one of my favorite topics that we are going to discuss. We are going to talk about one of the most fundamental principles of the Australian Constitution, if not the most fundamental principle in the Australian Constitution, and that is the principle of federalism. But what is federalism? What is the idea behind federalism?
What does it mean? What are the other countries that we can consider to be federal countries? And what is the difference between federal states and unitary states?
Hello everyone, my name is Renato Costa, this is Aussie Law, and today we will look at the idea and the principle of federalism. This will be the first video of a series of videos that I'll be recording about federalism. We're going to discuss the types of federalism, we're going to see the implications of federalism in Australia, and what does it mean for the states and for the Commonwealth.
And I'm looking forward to do all of that. But we have to start somewhere. And today we're going to look at federalism more theoretically.
What is the idea of federalism? What is the notion of federalism? And what does it entail?
I wanted to start by saying that federalism is a plastic concept. It's a plastic term. And what I mean by that is that when we say the word federal or federalism, we can mean different things. John Quick and Robert Guerin are considered to be two of the founding fathers of the Australian Constitution.
And they have written this book right here. This is one of the best commentaries on the Australian Constitution. And in this book they say that there are four meanings of the word federal that we can see and identify in the constitution and in society generally.
The first meaning or the first sense of the word federal comes from the word fedos, which is the Latin root of the word federal or federalism. Fedos in Latin means treaty, pact or covenant. So, in this sense, which Quicken-Geran called the Union of States, federal is an agreement, is a pact, it is a covenant between independent states that come together and constitute this new body, a union. Federal here, then, is about this union, this coming together of the states, this process of independent entities forming one other entity, a union in diversity, a union of states. In the second sense, the word refers to the federal state, so it is about the resulting body of that union.
Instead of focusing on the union and in the process of the states coming together, we now refer to the state that is formed out of that pact, out of that agreement. So federal is the qualification given to the body that resulted from the union that came from the fedos, the pact, the covenant between the states. This is the sense used in the preamble to the Australian Constitution when it refers to the federal commonwealth.
If you want to know more about the preamble, check this video that's appearing on the card. There is still another sense. The third sense, the third way we can use the word federal according to Quick and Guerin is in the sense of a dual system of government. It refers to this coexistence of a national and a sub-national system of government.
A coordination between statehood and nationhood. So it refers to the allocation of public powers either to the Commonwealth, to the national state or to the states themselves. That's why they call it the dual system of government. And finally, in the fourth sense, according to Quick and Guerin, federal means the structure and the composition of the institutions that were created by the Constitution. Federal here is a description of the organs of the central and general government.
As you can see, there's a difference in the way in which we can use the word federal or federalism. And in fact, there is also a difference between federalism as a principle and federalism as a system. And this is...
what I want to talk about next. When we refer to federal institutions, federal government, federal powers, etc. we are using the word federal as a qualification of those institutions and powers, etc. So the word federal here implies an idea, a principle. And what is the difference then between the federal principle and the federal systems? The difference is that federal systems are the implementation of the principle of federalism.
Let me give you an example. In Australia, the states are responsible for creating their own criminal laws. So the criminal laws in Queensland are distinct and different from the criminal laws in South Australia or in New South Wales.
And the Commonwealth of Australia has only limited jurisdiction to talk about, to legislate. about those matters. So you can see that in Australia there is a certain way in which the federal principle is applied and that is Australia's federal system.
Now, it's different from other countries. Let's say Brazil. In Brazil, the Commonwealth, the Federal Union, is responsible for legislating about criminal laws.
So in all of Brazil, all of the states, They all have the same criminal law. That's a different federal system. But we cannot say that Brazil is federal and Australia is not.
Or we cannot say the opposite, that Australia is an actual federation and Brazil is not, just because of that. Because both of them have the idea of federalism implemented just in different ways. There are many federal countries in the world. Look at the map that is appearing there.
You can see these are all different federal systems and each one has their own rules and their own particular implementation of the federal principle. Sometimes the states have a lot of autonomy, sometimes they don't. Sometimes they were created by aggregation or by devolution. It really depends. The important thing is that the principle, the idea of federalism is implemented somehow in that state.
And this is why all of them are still considered federal countries. So, finally, what is federalism? How can we define it? What is the idea behind federalism? It refers to an agreement, a bargain, a political bargain, a covenant, an agreement between independent states that come together and unite and to form a new body, this collective body, a state of states.
But when they create that one national government, that one body, they maintain the jurisdiction and their distinctiveness. So it is about diversity and unity. So it is a union in diversity.
Federalism is about self-rule and shared rule. It is about then a decentralization of the national government. It's not only about one national government existing in a unitary state, but this national government is composed of different states, different states governments that live together, cooperate, coexist and coordinate.
So a federal country is a state of states and federalism is about self-rule and shared rule. So, places like England and New Zealand, they have only one central government. Australia is different because those are unitary states.
Australia is federal, so Australia has the national, the federal Commonwealth and also six states, each one with their own government. Lastly, I just wanted to say that federalism is an essential feature of the Australian Constitution. We will see in our videos that this principle actually pervades the whole of the constitution.
So to understand the Australian constitution we actually have to understand federalism first. And that's why I decided to do this series of videos. To start with a more theoretical approach and then we're going to slowly take steps further to understand more about federalism as a concept and the federal idea and the implementation.
of that idea to Australia and what it means for Australian constitutional law. This was just a brief introduction. We saw the differences between the four meanings of the word federal and we also saw the differences between the idea of federalism as a principle and federalism as a system. Now that we know that, we can proceed to our next video that I invite you to join me and watch as soon as I release it.