My present interest in the federal dimensions of the Australian constitutional system was triggered some years ago when writing on the subject of constitutional implications. At the time I was examining a line of cases in which the High Court of Australia had held that the Constitution contained an implied freedom of political communication. One of the arguments apparently accepted by the Court was that since the Constitution was founded upon the sovereignty of the Australian people, it accordingly made provision for a system of representative democracy and that various political freedoms, such as freedom of speech, were necessary in order to preserve the integrity of the system. My central criticism of this and similar lines of argument was that the more radical of these implications were not warranted because the multiple steps in the reasoning, while individually plausible, had the cumulative effect of producing an outcome far removed from the text and structure of the Constitution.

When considering these arguments, however, it was necessary for me to bear in mind another line of High Court decisions in which constitutional implications had been derived from the federal nature of the Constitution. In these cases it had been held that the Commonwealth Parliament could not enact legislation which would prevent the states from continuing to exist and function as autonomous, self-governing bodies politic. A question I had to face was whether these ‘federal’ implications – in contrast to the ‘democratic’ ones I had criticised – were warranted. Moreover, in other important cases decided by the High Court it had appeared that federal and democratic implications were in conflict and it seemed necessary for the Court to determine which would prevail.