The Meanings of Concurrency

Abstract

Concurrency is a feature in the organisation of legislative powers in most federal systems. Broadly understood, concurrency arises when legislative powers are conferred in a way that enables both the central and regional spheres of government to legislate on the same subject matter in certain conditions. This paper seeks to demonstrate that there are significant variations amongst federal systems in the way in which concurrency is used and applied. It examines how concurrency is understood in five federal systems: Australia, Germany, India, South Africa and the United States. It traces the principal variations in the use and application of concurrency with respect to the design of constitutional provisions, the scope of authority that concurrent power confers, the significance of an exercise of concurrent power by both spheres of government at the same time, and the relevance (if any) of concurrency to the authority of regional governments to administer central laws. The paper also suggests some possible reasons for the different uses and understandings of concurrency, including the circumstances in which the federation was formed, pre-federation history and institutional context. The findings are significant for comparative constitutional method, insofar as they demonstrate that a concept that often is assumed to have shared meaning across federal type systems, in fact is both understood and used in different ways. The findings have practical significance as well, not least for the design of federal constitutions, most of which employ the concept of concurrency in some way.

Keywords: federalism, comparative constitutional law, legislative powers

JEL Classification: K00, K39