Brazil Does Not Have an Authentic Federalism (and Neither Does Australia)

On my impending visit to Brazil, on 23 May I will have the honour of speaking at the Uniandrade University (Campus Cidade Universitaria) on the topic of ‘Is Brazil a Federalist Country?’

My answer will be an emphatic NO. Brazil does not have an authentic federalism. 

In a federal system legislative power is constitutionally divided between the centre and the regions. Some things are reserved to the regions so that only the people of the regions themselves are allowed to do. 

Unfortunately, the Federal Constitution of Brazil is a highly centralist document. Article 21 of this constitution delegates vast amount of powers to the central government that are meant to be exclusive. Article 22 then grants the central government a further significant array of powers, although some of these powers overlap and repeat powers delegated in Article 21.

Like the U.S. Constitution, the Brazilian Constitution does not grant exclusive power to the states. Rather, it reserves the powers not forbidden to them by the basic law to the Brazilian states. And yet, the powers granted to the central government are so vast and all-encompassing that these states are basically left with virtually nothing.

Indeed, the supremacy of the central government in Brazil is so dramatically manifested that the very idea of any legislative power being reserved to the Brazilian states becomes entirely meaningless and irrelevant.

But you should think twice before imagining that I regard Australia as having an authentic federalism. Australia does also lack an authentic federalism.

In drafting their constitution, the Australian framers sought to maintain a balance in the distribution of powers between the states and federal government. Whereas the central power is limited to express provisions in sections 51 and 52, with these powers respectively being concurrent with the states and exclusive, the substantial remaining residue was left undefined to the states.

The idea was to reserve to the people of each state the ultimate right to decide on the most relevant issues through their own state legislatures. The drafters intended to provide the states with original powers of local self-government. They specifically insisted that these state powers would continue under the constitution, subject only to the carefully defined and limited powers specifically conferred upon the central government.

Unfortunately, the original federal compact has been completely undermined by the High Court of Australia. The continual expansion of central powers endorsed by the judiciary has resulted in a Federation far removed from that originally envisaged by the Australian framers.

In other words, the High Court has allowed the federal government to dramatically expand its powers to the point where many of the advantages of federalism have either been lost or are not being realised to their full extent in Australia.

As stated by Sir Harry Gibbs, together with the regular application of section 109 (inconsistency), an expansive (non-purposive) interpretation of the corporations power and the external affairs power in section 51 offer the central power the capacity to annihilate every state legislative power in virtually every single respect.

Chief Justice Gibbs in Tasmania Dam (1983) stated: “The division of powers between the Commonwealth and the states which the Constitution effects could be rendered quite meaningless if the federal government could, by entering into treaties with foreign governments on matters of domestic concern, enlarge the legislative powers of the [federal] Parliament so that they embraced literally all fields”.

Such a possibility has now become a reality and it was once recognised by another member of the High Court, Justice Dawson, who saw a broad interpretation of external affairs provided by his court as having an enormous capacity to entirely obliterate the division of power which is a necessary feature of any federal system.

In order to restore federalism in Australia, the judicial elite need to rediscover the federal nature of the Australian Constitution, particularly its limited powers conferred upon the central government as opposed to the powers which should have not been usurped by the central government but rather continued with the people of the respective Australian states.

Dr Augusto Zimmermann LLB, LLM, PhD is Professor and Head of Law at Sheridan College in Perth, Western Australia, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus. He is also President of the Western Australian Legal Theory Association (WALTA), Editor-in-Chief of the Western Australian Jurist law journal, and a former Commissioner with the Law Reform Commission of Western Australia (2012-2017). Dr Zimmermann is also the recipient of the Vice-Chancellor’s Award for Excellence in Research (Murdoch University, 2012). Dr. Zimmermann is the author of a 3-volume collection on the ‘Christian Foundations of the Common Law’, edited by Connor Court between May and October 2018.