Subsidiarity: European Lessons for Australia's Federal Balance
| DOI | 10.22145/flr.39.2.1 |
| Published date | 01 June 2011 |
| Author | Nicholas Aroney |
| Date | 01 June 2011 |
| Subject Matter | Article |
SUBSIDIARITY: EUROPEAN LESSONS FOR AUSTRALIA'S
FEDERAL BALANCE
Nicholas Aroney*
ABSTRACT
The principle of subsidiarity was adopted as part of the law of the European Union as
a response to perceptions of excessive centralisation and bureaucratisation within the
European system of government. If subsidiarity is a solution to these problems in
Europe, it might be asked: could it also be a solution to similar problems that arise in
other federal systems, such as those of the United States and Australia? However,
posing the question in this way is misleading because it is not at all clear that
subsidiarity has been a solution in Europe, and in any case it cannot be assumed that a
solution in one context will necessarily operate effectively in another.
This article closely examines the nature and operation of the principle of
subsidiarity in Europe and asks what lessons might be learned from it. To do this, the
article begins by identifying the carefully defined operation of the principle in EU law
and then closely examining the application of the principle, firstly as a political
decision-making procedure that involves the Member State parliaments in the
European policy-making process, and secondly as a juridical principle enforceable by
the European Court of Justice. The possible adoption of the principle in other
federations is then discussed, but limitations on its effectiveness in Europe, as well as
the different institutional and political circumstances of the Australian federal system,
are shown to undermine its likely usefulness, unless other more fundamental issues
about the way in which the federal system is understood, organised and operated are
addressed.
The final part of the article suggests that these more fundamental issues are best
understood and addressed in the light of a broader, more substantial, 'social'
conception of subsidiarity: a conception not unrelated to the Roman Catholic social
theory from which the idea of subsidiarity originally derived. A more substantial,
social conception of subsidiarity, it is argued, can help us to understand why the
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* Professor of Constitutional Law and ARC Future Fellow, Centre for Public, International
and Constitutional Law, TC Beirne School of Law, The University of Queensland . This
article is based on a paper presented at a conference entitled 'Reappraising the Judicial
Role: European and Australian Comparative Perspectives' held at the Centre for European
Studies, Australian National University, 14 February 2011. My thanks to the organisers for
their generous hospitality and to the participants, especially Oliver Gerstenberg, Vlad Perju
and Stefan Auer, for their comments on the paper. Thanks are also due to Cornelia Koch
for her comments and Anna Lord and Joshua Sproule for their capable research assistance.
214 Federal Law Review Volume 39
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application of the principle in Europe has had only limited effect and also why its
application in other federal systems is unlikely to remedy problems of centralisation
and bureaucratisation. This is because the European version of subsidiarity is focussed
on the question of how the functionalist objectives of the EU can most appropriately be
achieved, with only tangential consideration being given to the proper functions,
purposes and responsibilities of the constituent Member States themselves. Focussing
simply on the scope and reach of the competences of the central organs of government
is not enough. Nor is it sufficient, as in Australia, to focus only upon the immunities
that the constituent states ought to enjoy as self-governing political communities.
Rather, the key task is to identify the proper functions and purposes (munera) of the
various political (and social) communities and associations that make up the wider
political community of which they are an integral part. The proper immunities that a
particular community should enjoy cannot be identified apart from and identification
of the appropriate munus of that community. Although an admittedly difficult and
highly controversial task, unless the issue of the munera is addressed, 'subsidiarity' as a
principle is not going to have much effect, for its fundamental lesson about the nature
and integrity of the munus of each community — social and political — will not have
been learned.
I INTRODUCTION
According to at least one influential account, the principle of subsidiarity rose to
prominence in the law of the European Union as a response to Member State
perceptions of undue centralisation and bureaucratisation within the European system
of government.1 Concerns about centralisation within federal systems of government
are common, and Australia certainly is no exception.2 So the deceptively simple
question addressed in this article is this: if subsidiarity is a solution to centralisation in
Europe, might it also be a solution to centralisation in Australia?3
To put it this way is deceptively simple for two basic reasons. The first is that it is
not at all clear that subsidiarity has proven to be a solution to centralisation in Europe.
The second is that the constitutional conditions of Europe and Australia are in several
important respects significantly different, and solutions in one context are not
necessarily solutions in another. Nonetheless, there are analogies between the two
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1 George Bermann, 'Taking Subsidiarity Seriously: Federalism in the European Community
and the United States' (1994) 94 Columbia Law Review 331, 348–66. Concerns about
centralisation became especially prominent after the Single European Act of 1986
introduced decisions by qualified majority rather than unanimity. On the balance of
decision-making rules in the EU, see Koen Lenaerts, 'Constitutionalism and the Many Faces
of Federalism' (1990) 38 American Journal of Comparative Law 205.
2 For an example, see James Allan and Nicholas Aroney, 'An Uncommon Court: How the
High Court of Australia Has Undermined Australian Federalism' (2008) 30 Sydney Law
Review 245.
3 Several reports have argued that, subject to certain qualifications, the principle of
subsidiarity ought to guide the reform of the Australian federal system. See, eg,
Productivity Commission, Productive Reform in a Federal System, Roundtable Proceedings
(2006); Neil Warren, Benchmarking Australia's Intergovernmental Fiscal Arrangements: Final
Report (New South Wales Government, 2006); Business Council of Australia, Reshaping
Australia's Federation — A New Contract for Federal-State Relations (2006).
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