Federalism, Finance, and Social Legislation in Canada, Australia, and the United States

By A. H. Birch | Go to book overview

6
SOCIAL LEGISLATION:
THE CONSTITUTIONAL PROBLEM

I. OUTLINE

THE suggestion has been made (or at any rate implied) in Chapter 1 that social services in a federal state may be divided into three classes: those that are best provided, at the time concerned, by the states or localities, those which are best provided by the federal government, and those in which the best arrangement would be a combination of federal legislation and state administration. In respect of the first group no specifically federal problem emerges; the problems are those inherent in the service and would arise in a unitary country. In respect of both the other groups, however, constitutional problems are likely to arise. In some cases the federal government would like to provide a service that, constitutionally, is reserved to the states; in others the devices used to promote co-ordination are of doubtful validity. In either case the solution that is adopted will depend partly upon the constitutional position, and it is the aim of this chapter to outline the more important problems of this type which have emerged.

The first point to note is that there are only two references to the social services in the three constitutions. In the American constitution there is no mention of them; in the British North America Act the provinces are given exclusive right to legislate with regard to 'The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals';1 and in the Australian constitution the Federal Parliament is empowered to legislate with respect to 'invalid and old-age pensions'.2 It follows that, with the exception of invalid and old-age pensions in Australia, the federal governments have had no direct power to legislate for the social

____________________
1
Section 92, Clause 7.
2
Section 51, Clause 23.

-147-

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