Constitutional Law

This is a University Constitutional Law Research Essay Question:
Since federation, the federal balance of power in Australia has faced many challenges. Recently, the Covid-19 pandemic presented a specific challenge for countries in which the powers of government are divided between federal, state, and local levels. In Australia, it has been argued that the current federal model allowed for central coordination and regional differentiation, which enabled a remarkably robust response to curbing the spread of the virus(despite some policy and administrative failures).1 In particular, federalism has been praised for “prioritising local knowledge in policy formulation, maximising political responsiveness, and cabining policy failures”.2 On the other hand, some commentators have been more critical, highlighting “confusion and costs due to policy non-uniformity and delay in policy coordination involving multiple actors”.3 At the heart of this disagreement lies the broader problem of whether the Australian federal system works in a “healthy” way.

Drawing upon the pandemic case studies into federalism answer the following question: Is Australian federalism in need of structural reform? Why, or why not?

1 – Nicholas Aroney and Michael Boyce, “The Australian Federal Response to the Covid-19 Crisis. Momentary success or enduring reform?”, in Nico Steytler (ed.): Comparative Federalism and Covid-19, London: Routledge, 2021, pp. 298-316
2- Julian R Murphy and Erika Arban, “Assessing the Performance of Australian Federalism in Responding to the Pandemic”, Publius: The Journal of Federalism, Volume 51, Issue 4, 2021, p. 627.
3 Ibid

Further guidance to answer this is below:

1. This is a research essay. In developing your answer, you should engage with the course materials and use additional scholarly sources as well as primary sources of law. Good essays will present cogent arguments in support of one’s view and discuss relevant counterarguments. Give yourself enough time to digest the readings, structure your main argument, polish your writing, and edit the document.
2. Some examples demonstrating the complexity of a federal system that we have discussed include: the Territorial Senators case; the reserved state powers doctrine and the cases of Engineers and Barger; and centralisation of power in the Commonwealth in light of broader interpretations of certain heads of power (for example, the tax power, the grants power, the corporations power, and the external affairs power). You may also consider the example of the pandemic discussed above. Once you have chosen the focus of your paper, your research should then help you reflect on the advantages and disadvantages of our federal system and support your conclusion in answering the essay question. For this essay, do not consider how to implement possible reforms.
3. Undertake some research on the scholarship concerning Australian federalism, its overall performance across time, and the proposals for reform. Focus on the structural elements of Australian federalism, as learned across this unit.
4. Remember: presenting and discussing well-researched and clearly structured arguments is where the marks are. Avoid superficial description. It is the depth of your research and the ensuing analysis that is important. Do not use too many words describing what others claim and be sure to provide reasons for your own claims. It is not enough to simply summarise what others have said and then jump to a conclusion as to which argument is preferred. The correctness of your preferred view needs to be explained/justified. This is the “critical analysis” aspect of your paper.
5. There is no right or wrong answer, no model answer and no ‘correct’ viewpoint. There is a diversity of views on whether Australian federalism should undergo reform. What matters is that you engage with the essay question using clear and robust argumentation that is based on scholarly research, e.g., published academic journal articles / academic books etc – not non-academic sources such as newspaper articles and government reports (you may use non-academic sources as supplementary references to support arguments that are already justified by academic literature).
6. The essay must comply with the Australian Guide to Legal Citation (4th edition). The Guide is available here:
7. Footnotes should only be used for references. Do not include any analysis in your footnotes.
8. A bibliography must be provided at the end of the essay which is formatted in accordance with rule 1.13 of the AGLC 4.
9. Please use Times New Roman (12-point font size, double-line spaced, for main text and bibliography; 10-point font size and single-line spacing for footnotes).
10.It is recommended that you follow the headings styled set out in the AGLC 4 in rule 1.12. However, you may follow another styling, provided that the levels of your headings are clear and demonstrate the logical development of the core argument of your essay.
11.The word limit for the research essay is 1500 words (full name, Student ID, footnotes, and bibliography are not included in the word limit). This is a strict requirement and any content over the word limit will not be marked. Exceeding the word limit could mean that all, or part of the conclusion cannot be marked – this may significantly, and negatively, impact your mark. Ensure that you have checked that your word count is not including your footnotes (this requires “unchecking” the box to include footnotes). As important as it is to not exceed the word count, falling well below the word count will likely mean that you have not engaged in sufficient critical analysis of the issue, and the different arguments canvassed in your response. This may also negatively impact your mark.
12. Please be aware that plagiarism detection software is used in this Unit.