The Australian Federal Constitution

A Guide to Net Resources

(Discussion and Analysis #1)

This page was last updated on 31 January 2003.

[The Australian Federal Constitution: Net Resources (top level page)]
[About the Constitution] [About the Institutions & Processes] [About (Constitutional) History]
[Texts of the Constitution (& Other Important Statutes)]
[Discussion of Constitutional Issues (A-E) (F-K) (L-Z)] [Discussion of Particular Provisions]
[Other Papers on Constitutional Matters] [Other Papers of Interest]
[Useful Tools & Places]

Caution: this is only a subpage of my Australian Constitution Resource Guide site. Links should be made instead to http://www-personal.edfac.usyd.edu.au/staff/souters/constitution/

Discussion of Particular Issues (A-E) (See also: F-K and L-Z)
Note: Not all the pages linked here deal explicitly with the constitutional aspects of the issues in question. A few really ought to be in the Other Papers of Interest section, but rather than fragment them it seemed better to bring all the pages devoted to one particular issue under one heading. In or two cases where none of the pages were especially relevant to the Federal Constitution, the entire issue has been bundled off to Other Papers of Interest until such time as those that are appear on the WWW.
Abolition of the States (see also Federalism below)	Regional government can transform Australia By Mark Drummond. 15 July 2000. At the OnLine Opinion discussion site. Under-government, over-government, and "duplicated centralism". "While being a federation per se does not necessarily incur additional costs of duplication--such costs can accrue in multi-tiered unitary systems as well--relative to other First-world federations and virtually all unitary systems of government, Australia's mix of powers between the commonwealth and the states/territories is an extremely expensive one."
Aboriginal Treaty	For related issues, see the sections on Native Rights, Native Title, and Race below. Also s51(xxvi) (the race power) in Discussion of Particular Provisions.
Aboriginal Treaty	Agreeing on a Document: Creating a New Agreement Power Similiar to Section 105A By the Council for Aboriginal Reconciliation. Part of the Reconciliation and Social Justice Library. A novel approach to the question of an Aboriginal treaty. Very brief. Agreeing on a Document: Reorienting Talk of a Treaty or Treaties under International Law By the Council for Aboriginal Reconciliation. Part of the Reconciliation and Social Justice Library. "...the High Court has given its decision in the two Mabo cases making it clear that talk of sovereignty for indigenous Australians is at best a political claim rather than a legal reality."
Administrative Law (also Judicial Review)	Administrative Law and Relations Between Governments: Australia and Europe Compared (144K) By Cheryl Saunders. In Federal Law Review Vol. 28 No. 2 (2000). Stored at the archived copy of the Federal Law Review at the National Library of Australia. The "principal focus of this essay is review of administrative decisions taken in the course of co-operation between governments in a federation or in a constitutional system with some federal characteristics". Includes a look at s105A & the Loans Council, amongst other constitutional matters. "Australia is a federation in the common law mould. The federal system that came into effect on 1 January 1901 was built upon a foundation of pre-existing common law principles and institutions and was designed as nearly as possible to be consistent with them." Commentary on Sir Anthony Mason's Paper--The Hickman Principle and Part 8 of the Migration Act (MS Word) By Nicole Abadee. Section 75(v) and privative clauses. Delivered at a constitutional law conference held in February 2002. At the Gilbert & Tobin Centre of Public Law website. Federalism and Administrative Discretion in Australian, with European Comparisons By Leslie Zines. In Federal Law Review Vol. 28 No. 2 (2000). Stored at the archived copy of the Federal Law Review at the National Library of Australia. "The doctrine with which I am concerned is that which provides that the Parliaments and governments of Australia cannot be final judges of their own constitutional power nor can they give that power to an administrative or executive officer." The Foundations and Limitations of Judicial Review: A Commentary (MS Word) By Professor John McMillan. Delivered at a constitutional law conference held in February 2002. At the Gilbert & Tobin Centre of Public Law website. "To borrow some time-worn phrases--the more things change the more they stay the same; what goes around, comes around. The contemporary resurrection of the past--prerogative writs, privative clauses, legal concepts of jurisdictional error and jurisdictional fact, multiple rules of standing--is the product of many factors. They include the awkward limitation of jurisdiction in the Administrative Decisions (Judicial Review) Act 1977 (Cth), the restrictions on Federal Court review in Part 8 of the Migration Act 1958 (Cth), the brooding presence of Constitution s 75 and--in the view of some--a constitutional resettlement between the judiciary, parliament and the executive." "The English jurisprudence is leading increasingly to the position that there are rights--variously thought of as fundamental rights, human rights, or common law assumptions--that inhere in the constitutional structure. ... This trend should be eschewed in Australia, as one that is at odds with other fundamental constitutional assumptions. The separation of powers--a foundation principle of public law--acknowledges that particular functions fall within the province of each arm of government and that the usurpation of any such function by another arm of government is inappropriate. The discharge of judicial power, embracing the conclusive determination of issues of law, is within the judicial province. Likewise, the formulation of public policy and the resolution of the merits of administrative decision-making is a function that falls within the executive province of government. The broad criteria for judicial review that are being developed in England undermine that constitutional separation of powers." Judicial Review: A View from Constitutional and Other Perspectives By Sir Anthony Mason. In Federal Law Review Vol. 28 No. 2 (2000). Stored at the archived copy of the Federal Law Review at the National Library of Australia. Judicial Review: Is There Still a Role for Unreasonableness? By Naomi Sidebotham. At the website for Murdoch University's E Law journal, March 2001 issue. "There are considerable practical and constitutional limitations on judicial power that demand respect when the courts are exercising judicial review. Practical limitations derive from the institution of the judiciary itself. ... Perhaps more significant is the apparent disregard for the constitutional limits of judicial review that stems from judicial involvement in the merits of a decision. Although it is acknowledged that the courts are constitutionally empowered to test the legality of executive action, the danger is that they themselves will exercise the power vested by Parliament in the original decision maker and substitute their own decision for that under review. Judicial review would thereby become a process substantially indistinguishable from that of the executive. A 'surrogate political process' exercised by the courts in defiance of the doctrines of the separation of powers and parliamentary sovereignty would eventuate." The Limits of Judicial Review of Executive Action: Some Comparisons Between Australia and the United States By Justice Ronald Sackville. In Federal Law Review Vol. 28 No. 2 (2000). Stored at the archived copy of the Federal Law Review at the National Library of Australia. Merits Review and Judicial Review--The AAT as Trojan Horse (148K) By Peter Cane. In Federal Law Review Vol. 28 No. 2 (2000). Stored at the archived copy of the Federal Law Review at the National Library of Australia. Examines "the relationship between so-called 'merits review' of administrative decision-making, and 'judicial review' of administrative action". includes a discussion of the constitutional foundation of "merits review". Parliament and Administrative Law (215K) By John McMillan. 7 November 2000. Section 75(v), judicial review, the treaty power, Egan v Chadwick, and other related matters. A research paper from the Department of the (Federal) Parliamentary Library. Part of "The Vision in Hindsight: Parliament and the Constitution" collection of essays. Has an extensive bibliography. "The discussion of administrative law in Australia typically looks at its implications for the citizen, the Executive or the courts. Those three groups are involved directly in each administrative law dispute, as plaintiff, defendant or adjudicator. The involvement of Parliament is one-step removed, as the body that creates the legislative framework within which much of the disputation arises and is resolved. If Parliament is mentioned, it is commonly on the basis that Parliament and the Executive share the same interest and speak in a united voice. The theme of this paper is that the Parliament does have a separate and immediate interest in administrative law, which can be disentangled from the interests of other parties" The Rights of Citizens and the Limits of Administrative Discretion: The Contribution of Sir Anthony Mason to Administrative Law (120K) By Margaret Allars. In Federal Law Review Vol. 28 No. 2 (2000). Stored at the archived copy of the Federal Law Review at the National Library of Australia. The Underpinnings of Judicial Review of Administrative Action: Common Law of Constitution? By Stephen Gageler. In Federal Law Review Vol. 28 No. 2 (2000). Stored at the archived copy of the Federal Law Review at the National Library of Australia. "Reasoning in administrative law", including a look at the "influence of Marbury v Madison". "There was published in the University of Chicago Law Review some years ago a debate between Professor Dworkin and Judge Posner in the course of which Judge Posner drew a distinction between 'top down' and 'bottom up' reasoning. ... In 'top down' reasoning the judge or legal analyst adopts a theory about an area of law. The theory is then used to organise and explain the cases; to marginalise some and to canonise others. In 'bottom up' reasoning the judge or legal analyst starts with the mass of cases or the legislative text and moves only so far as necessary to resolve the case at hand. According to Judge Posner '[t]he top downer and the bottom upper do not meet'."
Admiralty Law	The Australian Admiralty Act: Project and Practice (missing) By James Crawford. Part of the UNIServe Law site. Civil Admiralty Jurisdiction Australian Law Reform Commission Report 33. Dated 1986. At the ALRC site. Includes discussion of the constitutional aspects. The Jurisdiction and Practice of the Admiralty Court Revisited (missing) By Dr Frank L. Wiswall, Jr. "A comparison of developments in Australia, the United States and England over the past quarter-century" (ie since the publication of the author's The Development of Admiralty Jurisdiction and Practice since 1800). Part of the UNIServe Law site. The 1994 Ebsworth & Ebsworth Maritime Law Lecture. "It is the word 'maritime' in s76(iii) [of the Commonwealth Constitution] which lies at the heart of the rationale of Gummow J. in The 'Shin Kobe Maru'. Australian commentators have of course previously considered whether all maritime cases are now in law cognisable by the Admiralty Court, but their focus seems to have been fixed on the possible consequences of some provision of the Admiralty Act 1988 exceeding the ambit of the constitutional grant of 'any' matter of admiralty and maritime jurisdiction. To one who is accustomed to think of every case of Admiralty Court jurisdiction as a constitutional case [which, as the author has previously pointed out, is the case in the US], that is a perspective through the looking glass."
Amending the Constitution	About the amending process. See also Citizen-Initiated Referenda below. For discussions primarily concerned with amending the Constitution but which focus less on the process of alteration itself and more on what ought to be in it see Constitutional Reform below and also Constitutional Reform (post-federation) up in the History section.
Amending the Constitution	Referendum: The Queen's English By Simon Rice. A discussion of the 1999 Federal Court case of Benwell v Gray, Electoral Commissioner "about what means YES and what means NO on a referendum ballot paper". Published in February 2000 in the Alternate Law Journal. Stored at the journal's archive on AustLII. A Role for the States in Initiating Referendums By Dr Jeffrey Goldsworthy. Paper presented to the Samuel Griffith Society in March 1997. ("The States created the Commonwealth, but now, like Dr Frankenstein, find themselves overpowered by their own creature. They are denied an advantage which the Commonwealth has: that of seeking a constitutional amendment to advance their distinctive perception of the national interest.")
A Bill of Rights (see also Implied Rights below.)	After the Republic a Bill of Rights By Michael Lee. At the Online Opinion site. Dated July 1999. "Those against a constitutionally enshrined Bill of Rights point to Australia's history as a well renowned democracy. This is true, but what about liberty? There is a fundamental and important difference between democracy and liberty. Democracy operates on the basis that a democratically elected majority has the power to govern as they see fit. Liberty on the other hand operates on the basis that even the power of a democratic majority must be limited to ensure individual rights are protected." Agreeing on a Document: Creating Bills of Rights By the Council for Aboriginal Reconciliation. Part of the Reconciliation and Social Justice Library. An Aboriginal perspective on an Australian Bill of Rights. Aspects of the Commonwealth Constitution: Part 2 By Chief Justice Murray Gleeson. 10 December 2000. Boyer Lecture No. 4 in the series "The Rule of Law and the Constitution". At the ABC's Radio National site. The author "examines some of the issues involved in the debate over whether or not a Bill of Rights would benefit our society" as well as "address[ing] concerns in the community about the judiciary, its seeming encroachment on public policy and the assertion that judges, being unelected, are unrepresentative and unresponsive to public opinion." (See also Part 1 filed down in the Other Papers on Constitutional Matters section.) "To establish a right in a constitution is to deny to a democratically elected Parliament the power to make a law inconsistent with that right. The whole point of having a constitutional right is to put it beyond the reach of Parliament. It gives judges the power to declare that the will of Parliament shall not prevail. If the Constitution is silent on a subject, then it is up to Parliament, from time to time, to deal with that subject--or not to deal with it--as it thinks fit. When the Constitution speaks, it limits the power of the Parliament, and if the courts find that legislation is inconsistent with the Constitution, it is therefore invalid. [However, n]ot all formal declarations of rights and freedoms are of that kind. For example, The Canadian Charter of Rights and Freedoms, enacted in 1982, contains legally enforceable guarantees, but they are not absolute. ... Certain of the guarantees can be overridden by [the Canadian] Parliament." An Australian Bill of Rights By Brian Keon-Cohen. At AustLII's Documents of [Aboriginal] Reconciliation and Constitutional Issues: Seminar 3 site. ("Section 109 says if you have a Commonwealth law which says thou shalt respect equality, and you have a State law such as Richard Court's law in Western Australia, that was the subject of a constitutional challenge which says we won't respect equality, then the two laws conflict and the State law falls.") An Australian Bill of Rights By Sarah Pritchard. At AustLII's Documents of [Aboriginal] Reconciliation and Constitutional Issues: Seminar 3 site. The issue of "an Australian Bill of Rights in the context of [Aboriginal] reconciliation and constitutional reform." An Australian Bill of Rights? Compiled by Jane Innes. A "subject overview". On the Millennium Dilemma site at the University of Wollongong. Short viewpoints from assorted eminent citizens, including Murray Gleeson, Tony Blackshield, and Leslie Zines. An Australian Bill of Rights: Glorious Promises, Concealed Dangers (216K) (missing) By James A Thomson. In The Melbourne University Law Review Vol. 19 No. 4 (1995). A "Review Essay" of Murray R Wilcox's An Australian Charter Of Rights?. Australians' rights are already protected By Senator Ross Lightfoot. 15 November 2000. At the OnLine Opinion discussion site. "[A]rgues there is no need for a Bill of Rights because Australian citizens' rights are already sufficiently protected.". "What is known as the United States Bill of Rights has remained largely unchanged since it was drafted in 1789, and hence there has been little evolution or progressions of those rights in the past 200 years. What was viewed as important in the eighteenth century, may not be seen as important now, or have a negative effect (for example the right to bear arms). What is viewed as important now may be seen as unimportant down the track. If one contrasts this unchanged Bill of Rights with Australian law, what is immediately noticeable are the changes and developments at a common law level (such as the Mabo decision) and that of other laws passed by Parliament. In fact, there are countless changes to our legislation, as this is the most appropriate way to ensure that the laws reflect community standards and values at the time of their passing." A Bill of Rights [for the Australian Capital Territory?] By Cathy Riordan of the Parliamentary and Constitutional Section of the Attorney General's Department. Discussion paper prepared in 1993. Although intended for the ACT government, much of it (eg "Which rights do we want to protect?", "Effects of a Bill of Rights") would be equally applicable to other Australian jurisdictions. A Bill of Rights for Australia--But do we need it? By Justice Michael Kirby. Speech delivered in 14 December 1997 to the Young Presidents Association, Queensland Chapter. At the Justice Kirby's Papers website. "No one says that a bill of rights alone will protect the rights of the people. But nor does majoritarian democracy in Parliament. The modern notion of democracy is more subtle than the primitive idea of according full power to the transient majorities of Parliament by a transient vote in a periodic election, accompanied by media jingles and superficial electoral slogans. Democracy now requires respect for minorities and protection of basic constitutional principles: such as the rule of law, the independence of the judiciary, and regard for fundamental human rights." A Bill of Rights for Australia--What Role Should the Courts Play? By Justice Michael Kirby. Speech delivered in 31 October 1995 to the Constitutional Centenary Foundation, NSW chapter. At the Justice Kirby's Papers website. Brief. Note: for the most part does not really address the second part of the title. A Bill of Rights now, proponents urge (access restricted) By Mary Rose Liverani. In the Law Society Journal (NSW), April 1995. A report of the three-day Australian Rights Congress held at Darling Harbour on February 1995. Opinions from various jurists, including a surprising admission from Mr Justice Kirby (he "revealed he once thought a Bill or Rights unnecessary"). A Bill of Rights: The Ultimate in Participation, or an Immature Stage in our Development? By Gary Johns. Paper presented to the Samuel Griffith Society in July 1999. At their website. "The Bill of Rights argument is a surrogate for a broader rights and citizenship debate. The entrenchment or otherwise of rights is not determinant; the nature of the rights themselves is the issue, not the architecture. Procedural rights are universal, but substantive rights, especially those with resource implications, are not; these require political consent." A Bill of Rights: Why now? Why in New South Wales? (access restricted) Author unknown. In the Law Society Journal (NSW), September 2000. On "Why now? Why in New South Wales?", "[t]he Law Society's Human Rights Committee answered both questions with commendable modesty. They argued that, with the global prominence of NSW during the Olympic games, now would be a good time for us to commence work on a Bill of Rights. It would enhance our standing in the international community and set an example for the rest of Australia to follow." A Charter of Rights and Aspirations: Relevance to Australia By Robert McClelland MP. 15 November 2000. At the OnLine Opinion discussion site. The author "sets out his suggestions" for a statutory (ie non-entrenched) bill of rights. "Recent history has shown that realistically the way ahead cannot be for a constitutional bill of rights. As George Williams has pointed out, the most recent attempt to entrench even basic rights in our Constitution was an abysmal failure." "I think one of the major failings of section 128 of our Constitution, which provides for Constitutional change through referenda, is that, by necessity, referendum Bills must be initiated by what the nay savers [sic; for "sayers"?] can describe as the political elite." Does Australia Need a Bill of Rights? By Sir Harry Gibbs. Paper presented to the Samuel Griffith Society in 1995. Does Australia Need a Bill of Rights? By David K. Malcolm. At the website for Murdoch University's E Law journal, September 1998 issue. A view from the chief justice of Western Australia. "I hope that the approaching millennium will see a rational and detailed national debate on the desirability, scope and content of a Bill of Rights. While much has been achieved through the development of the common law, the courts have had to pay a price for this in terms of criticisms that they have taken too much power to themselves. The guidance provided by a Bill of Rights would be one way of both assisting the courts as well as re-asserting the supremacy of Parliament." An edited version of the speech can also be found here at the OnLine Opinion discussion site (where it also says the original was a speech given to Amnesty International's Como Group on 16 July 1998). The evidence points to the need for an Australian Bill of Rights By Senator Natasha Stott Despoja. 15 November 2000. An abridged version of a speech given to the Centre for International and Public Law, ANU, 14 November 2000. At the OnLine Opinion discussion site. "The traditional arguments against a Bill of Rights centred on the views expressed by AV Dicey, who argued that civil rights were best protected by the common law and representative institutions. The alternative view was put by former Attorney-General and High Court Justice, Lionel Murphy, who stated: 'The Common Law does not say we have freedom of speech; it says we may speak as we wish, so long as what we say is not unlawful.'" Fair go for a bill of rights (access restricted) By Peter Breen. In the Law Society Journal (NSW), September 1995. Broad discussion, with a mention of the Gibb/Eastman proposal (see their article below). "Probably the strongest argument in support of a Bill of Rights is that there is no real protection for the people against wilful politicians in Australia." A Federal or State-Based Bill of Rights for Australia? By George Williams. 15 November 2000. At the OnLine Opinion discussion site. The author "sets out his suggestions" for a statutory (ie non-entrenched) bill of rights. "The Bill should be drafted so that a parliament could override any of the rights as applied by a court, but only where the parliament expressly states an intention to do so. This would raise the override as a political issue, and would require strong public justification. Through the media, this would produce an ongoing dialogue between parliament, the courts and the people." The Federal Parliament and the Protection of Human Rights (92K) By George Williams, consultant. A research paper from the Department of the (Federal) Parliamentary Library. Covers, amongst other matters, rights in the Constitution, federal human rights legislation, attempts at constitutional amendments, and arguments for and against a bill of rights. Freedom of Speech and the Constitution By Roy Jordan. 4 June 2002. Research note at the Department of the (Federal) Parliamentary Library site. A brief look at the pros and cons of a right to a freedom of speech in the Constitution. Note that one statement in this paper is not entirely correct: "In 1942 a Constitutional Convention held in Canberra recommended that the Constitution be amended to include a new section 116A preventing the Commonwealth or a State passing laws which curtailed freedom of speech or of the press. The government did not accept this proposal and it was not included in the referendum on 19 August 1944, when other constitutional amendments were proposed. In point of fact there was a freedom of speech included in the 1944 proposal (albeit not the contemplated s116A), as might be guessed from the title of the bill: Constitution Alteration (Post-war Reconstruction and Democratic Rights) 1944. However, there was a catch: had it been passed the entire amendment would have been subject to a sunset clause--including the free speech protection! Meaning that when the Commonwealth's extra powers expired so would the extra constitutional protections. Holding Government at Bay: The Case for a Bill of Rights By Frank Devine. Paper presented to the Samuel Griffith Society in 1992. How Should Rights be Protected in Australia? Issues paper from the Constitutional Centenary Foundation. The Imperatives of an Australian Bill of Rights By Imtiaz Omar. At Deakin University's Centre for Citizenship and Human Rights website. "The argument that the common law can be a protector of individual liberties can be designated a noble lie. The preoccupation of the common law with the semantics of rights is rooted in English legal history. In earlier periods, 'law' and 'right' were synonymous and both expressions were identical with the Latin jus. Quite aside from legal history, common law theory advances a conception of 'negative' rights, designated as 'liberties'. The presumption of the common law in this regard is that the legislature does not intend to abridge personal freedoms, to deprive an individual of personal liberty or property without compensation, or restrict access to the courts." Legal Protection For Fundamental Rights And Freedoms: European Lessons For Australia? By Timothy H Jones. In Federal Law Review Vol. 22 No.1 (1995). Touches on constitutional issues. The Need for a New Preamble to the Australian Constitution and/or a Bill of Rights (135K) By Mark McMcKenna. A research paper from the Department of the (Federal) Parliamentary Library No Bill of Rights for Australia (PDF) (200K) By Brian Galligan. Papers on Parliament: Collection No. 4. Originally presented at a seminar in May 1989. Revised version (July 1989). A survey of the history of attempts to enact a bill of rights in Australia (beginning with an account of the rise of the US model). Parliamentary Protection of Rights in the State of Victoria By Victor Perton MP (Chairman 1992-96 of the Victorian Parliamentary Committee for the Scrutiny of Acts and Regulations). Based on a lecture delivered at Melbourne University in May, 1996. Examines "the developments in the State of Victoria (Australia) in relation to human rights protections. ... There are many mechanisms for the protection of human rights. The parliamentary scrutiny of bills is one such model." ("Too many analysts and proponents for a Bill of Rights look at the possible benefits of an entrenched bill of rights without examining the enormous costs, not least the enormous cost of litigating a new bill.") Also includes a link to an RTF (not HTML!) version of another paper on the Victorian model prepared in 1994 by a Melbourne University student, Marie Henwood. The Pros and Cons of a Bill of Rights Suzanna Lobez (after a piece on the NSW Legal Services Commission and the Victorian Public Advocate) talks to former Chief Justice Gerard Brennan on the pros and cons of a bill of rights. 3 March 1998. On the ABC's Radio National's The Law Report. "Gerard Brennan: 'A Bill of Rights is necessarily drawn in open-textured terms. In essence, it requires the Courts to apply values rather than rules, to the solution of concrete problems, and to attribute to values that are in competition, a priority as between themselves. Thus if liberty and equality were both proclaimed in the Bill of Rights, priority might have to be determined for liberty is antipathetic to equality when the protagonists are of unequal strength. A Bill of Rights invites, indeed compels the Courts to assume a degree of political power. This would require a radical change in the judicial mindset, which currently prides itself on its apolitical function.'" Protecting Rights Fact sheet from the Constitutional Centenary Foundation. What rights are we talking about? How should rights be protected? What happens in Australia? What is the current debate? Protecting Rights Suzanna Lobez talks (after a piece on the "chase for Skase") with Father Frank Brennan (son of former Chief Justice Gerard Brennan) on the pros and cons of a bill of rights. 11 August 1998. On the ABC's Radio National's The Law Report. Father Brennan "went to the United States recently, believing Australia should adopt an American-style, constitutionally entrenched Bill of Rights, as made up by those well-known 'amendments'. He came back convinced such a Bill of Rights would fail in Australia. And that we can do better." Protection for Freedom of Speech in Australia? Issues paper from the Constitutional Centenary Foundation. Presumed innocent--once, briefly By Gavin Putland. 15 November 2000. At the OnLine Opinion discussion site. "If the proponents of an Australian Bill of Rights are content to entrench the rights that Australians already enjoy, their opponents will claim that the Bill is superfluous; 'If it ain't broke, don't fix it.' To overcome this argument, a Bill of Rights must protect at least some rights that are violated under present law. ... In this article I expand on just one of them: the presumption of innocence." Submission to the Standing Committee on Law and Justice Inquiry into a NSW Bill of Rights By Bob Carr. To a committee of the NSW Legislative Council in which the Premier outlines his objections to a bill of rights. At the Premier of NSW's website. A pres release summarising his objections can be found on the same site here. "Parliaments are elected to make laws. In doing so, they make judgements about how the rights and interests of the public should be balanced. Views will differ in any given case about whether the judgement is correct. However, if the decision is unacceptable, the community can make its views known at regular elections. This is our political tradition. A bill of rights would pose a fundamental shift in that tradition, with the Parliament abdicating its important policy making functions to the judiciary. I do not accept that we should make such a fundamental change just because other countries have bills of rights." Take Heed Australia--A Statutory Bill Of Rights And Its Inflationary Effect By James Allan. The New Zealand Bill of Rights Act and its "inflationary effect" on the NZ judiciary. Published 2001 in the Deakin Law Review. "[A] statutory, unentrenched Bill of Rights Act, one seemingly designed to foreclose too great social policy-making by unelected judges, is unlikely to deliver on the promised judicial restraint and moderation. An inflationary effect will kick in and the judges operating under such a statutory model will simply take for themselves much of the power that was deliberately withheld from them." What comes before a Bill of Rights? By Micheil Brodie. 15 November 2000. At the OnLine Opinion discussion site. "[E]xamines the preconditions and assumptions involved in providing a workable Bill of Rights". "The striking thing when you read the US Bill of Rights is that it makes some assumptions about its society that are the basic precursors for an effective bill [of rights]. These preconditions are: [a] legislative system fundamentally responsive to the population, [a] reliable legal system based in codified and common law, [a]n economic system and a trade system based on a currency, and [t]he capacity of people to exercise the rights offered." "The stability of the American political and economic systems is in part supported by the legal system with its Bill of Rights and partly supports these institutions. But few people will pay attention to a Bill of Rights if there is no economic basis for the citizenry to have something economic to defend. Why are we talking about A BILL OF RIGHTS? (access restricted) By Susan Gibb & Kate Eastman. In the Law Society Journal (NSW), August 1995. Could perhaps have been more properly titled: a "Proposal for a Bill of Rights for New South Wales", which is actually only the title for the appendix at the end of the article. (Note: the proposed Act would not be entrenched!) Timothy Nelson commented on the proposed bill of rights in a letter titled Universal Local Consensus published in the October 1995 issue. Would a Bill of Rights improve the quality of Australian journalism? By Rick Snell. 15 November 2000. An edited extract of one of three speeches given to the fourth 2000 George Munster forum, organised by the Centre for Independent Journalism and held at The Museum of Sydney on 23 October 2000. At the OnLine Opinion discussion site. "Australia has relied on an interesting mixture of common law (heavily influenced by the sentiment of the Magna Carta and the Bill of Rights 1689), executive restraint, a sense of 'the fair go' and an acceptance that free speech is at the heart of our democracy." "Certainly, a Bill of Rights would assist effective journalism by transferring the primary focus away from the protection of reputation (defamation) or judicial sensitivities (contempt) to the promotion and development of democratic interests. More importantly, it would concentrate journalists' minds on some of the other key purposes of the media (outside of making money, increasing market share or living within a limited budget)."
Bounties	Dairy Industry Adjustment Bill 2000: Constitutional Issues By Bernard Pulle. Examines the constitutional basis for making the bill's various "different and discretionary payments against the power of the Commonwealth to make laws with respect to bounties under section 51(iii) of the Constitution as well as with respect to the trade and commerce under section 51(i)." Also looks at the bill in connection with sections 51(xxxi) and 99. A current issues brief from the Department of the (Federal) Parliamentary Library
Case Law (discussion about)	Ventures in the trackless jungle: the use of American caselaw by the High Court of Australia By Bruce Topperwien. At his own website. Includes a discussion of American case law influence on Australian constitutional law. "In 1903 to 1910, constitutional law cases accounted for 72% of American case citations. In 1991-1997, they accounted for only 34% of American case citations."
Case Notes and Summaries (general)	Collected here are those case note pages which deal with a mixed bag of constitutional & non-constitutional case notes. Also summaries of those cases which themselves deal with a mixed bag of constitutional issues.
Case Notes and Summaries (general)	High Court and Federal Court case notes (access restricted) By Thomas Huxley. In the Law Society Journal (NSW), April 1998. High Court constitutional law cases listed (there were also several Federal Court ones given): Acquisition of Property (s51(xxxi)): Statutory extinction of statutory exploration licence (access restricted) Federal Judicial Power: Commonwealth statute requiring criminal court disregard criminal conduct of prosecution in procuring commission of offence (access restricted) State Cross-vesting of Federal Courts in Doubt (access restricted) Kruger & Ors v Commonwealth of Australia Summary of the High Court case. Published in October 1997 in the Australian Indigenous Law Reporter. Recent Cases Author unknown. For the LAW309 course at Macquarie University. Extensive summaries of selected cases (mostly High Court ones) from the years 1999 & 2000, including Abebe v Commonwealth (HC), Egan v Chadwick (NSW Court of Appeal), Grain Pool of WA (HC), Kartinyeri v Commonwealth (HC), Sue v Hill (HC), & Re Wakim (ie the Cross-Vesting Case, HC).
Casual Vacancies (Senate)	Senate Casual Vacancies By Gerard Newman. 14 May 2002. Research note at the Department of the (Federal) Parliamentary Library site. The impact of the 1977 constitutional amendment of s15. An expanded and updated version of a previous research note from 1996/7. "Since the passage of the amendment in 1977, there has been a significant increase in the number of Senators chosen under Section 15.... In the 76 years (1901 to 1976) prior to the passage of the Referendum some 66 Senators were chosen, an average of less than one Senator per year (0.9). In the 26 years (1977 to 2002) since the Referendum, 52 Senators have been chosen, an average of two per year. However, in the last thirteen years, 36 Senators have been chosen an average of 2.4 per year. Thirty per cent of all Senators chosen under Section 15 have been chosen in the last thirteen years." "It would appear that under proportional representation systems the number of casual vacancies is proportional to the certainty of replacing like with like."
Citizen-Initiated Referenda (aka Direct Democracy)	Beyond Representative Government By Ted Mack MHR. Paper presented to the Samuel Griffith Society in 1995. Citizen-Initiated Referenda Suzanna Lobez talks with George Williams about the Community Initiated Referendum Bill then before the ACT Assembly. 22 June 1999. On the ABC's Radio National's The Law Report. "George Williams: '...if you think about why people support CIR, I think the main reason is they feel alienated from the current system. They feel as if their representatives in parliament are not serving their interests, and so they want to turn to a system where they feel as if they've got a direct say in the process." "George Williams: '...my own view is, there's a fundamental difference between the United States and Australia: there they have a Bill of Rights, and where for example a State passed a provision which discriminated against people on the basis of their sexuality, that was knocked down in the Supreme Court. If we had CIR in Australia, arguably we could have laws which would discriminate against smaller minority groups, perhaps even farmers for example, but there'd be nothing in the Constitution or in the Statute Law to prevent to prevent that occurring." Citizen Initiated Referendums: Adjunct or Antithesis to Constitutional Government? By Harry Evans. Paper presented to the Samuel Griffith Society in 1995. Citizen Initiated Referendums (or Direct Democracy) By Malcolm Brooks. Direct Democracy and Citizen Law-Making By Geoffrey de Q Walker. Paper presented to the Samuel Griffith Society in 1994. Policy from the People : Recent Developments in the USA and Canada By Professor Philip Ayres. Paper presented to the Samuel Griffith Society in 1995. Should the Australian People be allowed to Initiate Referendums? Issues paper from the Constitutional Centenary Foundation. Sovereigns Citizens not Subjects By Professor Patrick O'Brien. Paper presented to the Samuel Griffith Society in 1995.
Citizenship	Citizenship and the Centenary--Inclusion and Exclusion in 20th Century Australia (143K) By Kim Rubenstein. In The Melbourne University Law Review Vol. 24 No. 3 (2000). Includes a look at constitutional issues. Stored at AustLII's online archive. "This tension between citizenship as exclusion and inclusion is not unique to Australia. Peter Spiro, a US academic reviewing Rogers Smith's book, describes the tensions as giving rise to the 'citizenship dilemma': 'On the one hand, exclusionary approaches have been morally and legally discredited. On the other hand, inclusion waters down the strength of national identity.'" Citizenship and the Constitutional Convention Debates: A Mere Legal Inference (101K) By Kim Rubenstein. In Federal Law Review Vol. 25 No.2 (1997). Stored at the archived copy of the Federal Law Review at the National Library of Australia. A discussion of citizenship in the Federal Constitution. Citizenship as Democratic Participation and Exclusion: The High Court's approach to Judicial Review and Refugees (127K) By Kim Rubenstein. At the the Australian Public Law site. Presented to the Retreating From the Refugee Convention? conference, held at Northern Territory University in February 1997. Discusses historical influences, citizenship and judicial review, also the Lim, Cunliffe, Teoh cases. "Australian citizenship was extensively canvassed in the 1890s debates on Australian Federation. John Quick...had sought the insertion in the Constitution of a power over Commonwealth citizenship. When this was not successful, he suggested that a new clause be inserted to confer citizenship on all persons resident within the Commonwealth, being natural born or naturalised subjects of the Queen, and not under any disability by the Parliament. Quick's concern was to create a national citizenship above state citizenship, and he was also concerned with the treatment of residents of one state in relation to another state and the wording of section 117 of the Constitution. This conferral of citizenship was similarly rejected." Citizenship--The Prospects for Reform Speech by Nick Bolkus. At the 1996 Culture & Citizenship Conference site at Griffith University. Federation, the Constitution ("Even today our Constitution is technically described as 'Section 9 of the British Parliament' [sic] and not as the Constitution of the Australian people."), and assorted other ponderings.
Commonwealth Grants to the States	See also Sections 90 & 96 in Discussion of Particular Provisions.
Commonwealth Grants to the States	Commonwealth Assistance to the States Since 1976 (107K) By Denis James. A background paper from the Department of the (Federal) Parliamentary Library. Sections 90 and 96 and the State Grants (aka Commonwealth financial assistance) problem. "Australia is characterised by the largest degree of vertical fiscal imbalance between its tiers of government of any federal nation."
Commonwealth- State Immunities	Application of State Laws to the Commonwealth Author unknown. Legal Briefing No. 47, 29 June 1999. At the Australian Government Solicitor's website. The AGS looks at several 1999 High Court cases which concern the title matter. The Commonwealth's Implied Constitutional Immunity from State Law Author unknown. Legal Briefing No. 36, 30 August 1997. At the Australian Government Solicitor's website. The AGS looks at Re The Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte Defence Housing Authority. Commonwealth-State Immunities (missing) By Ian Connor. Federal constitutional law Study Guide (1996) from the Faculty of Law, Queensland University of Technology. The express immunity The implied immunities Re The Residential Tenancies Tribunal of New South Wales and Henderson; Ee Parte Defence Housing Authority (1997) 190 CLR 410: States' Power to Bind the Commonwealth By Mark Gladman. In Federal Law Review Vol. 27 No. 1 (1999). Stored at the archived copy of the Federal Law Review at the National Library of Australia. A discussion of citizenship in the Federal Constitution. Assesses in light of Henderson, "the extent to which the States can bind the Commonwealth." "The power of the Commonwealth and the States to bind each other raises fundamental issues concerning the nature of federalism in Australia. In Re The Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte Defence Housing Authority (Henderson), the High Court was required to consider the extent to which a Commonwealth statutory body, the Defence Housing Authority, may be subject to State residential tenancy law. The High Court's decision in Henderson appears to expand the States' power to bind the Commonwealth, however, the precise scope of the power remains uncertain."
Constitutional Basis (grundnorms, popular sovereignty, et al) (see also Parliamentary Supremacy)	Deakin: Popular Sovereignty and the True Foundation of the Australian Constitution By Justice M D Kirby. 1997 Deakin Law School oration, 22 August 1997. At the High Court's website. A real grab-bag of ideas. Ranges from the republic issue to the English convention parliaments of the later-1600s, to a "wholly autochthonous constitution"...and lots more besides. The political and philosophical origins of Australia's constitutional system (114K) Lecture notes for an ungraduate law course taught by Ken Parish at Northern Territory University. Summarises chapter 1 of Tony Blackshield & George Williams's Australian Constitutional Law: Theory, Practice & Materials (2nd edition, 1998) "with updating cases, commentary and links". Popular Sovereignty and Constitutional Continuity By George Winterton. In Federal Law Review Vol. 26 No.1 (1998). Stored at the archived copy of the Federal Law Review at the National Library of Australia. Popular sovereignty, implied rights, "paradigm shifts", and the High Court. ("'Sovereignty' is a notoriously ambiguous concept. It appears in this context to be used in two rather different senses, the first referring to the source from which the Constitution derives its authority, and the second to the location of the power to amend the Constitution.") Sovereignty of the People: the New Constitutional Grundnorm? (137K) By Harley G.A. Wright. In Federal Law Review Vol. 26 No.1 (1998). Stored at the archived copy of the Federal Law Review at the National Library of Australia. Popular sovereignty in Australia. ("It is fitting perhaps, as the 'inevitable' republic advances and as the constitutional ties with Britain are severed, 'that the men of the Revolution should turn to constitution making'. However there are doubts as to the identity of the constitution makers. It should not be the responsibility of the judiciary alone. The revolution lacks just one thing--the consent of the sovereign people.")
Constitutional Interpretation	See also General Principles & Philosophy below. Note that issues of constitutional interpretation can also occur other subsections (eg Federalism).
Constitutional Interpretation	The Concept of "One Australia" in Constitutional Law and the Place of Territories By Graham Nicholson. In Federal Law Review Vol. 25 No.2 (1997). Stored at the archived copy of the Federal Law Review at the National Library of Australia. Argues that "there is a fundamental concept implicit in the interpretation of the Australian Constitution" and suggests that "the Australian courts should, where appropriate, take into account that Australia is one nation and one people operating under a 'unitary' system of Australian domestic laws." Constitutional Implications (I): Nature, Legitimacy, Classification, Examples By Jeremy Kirk. In The Melbourne University Law Review Vol. 24 No. 3 (2000). Stored at AustLII's online archive. "Much of Australian constitutional law involves the consideration of implications said to be found within the Australian Constitution. The development of the notion of 'implied rights' has brought the topic to prominence, but implications are of great significance in all areas of interpretation." Constitutional Interpretation and Original Intent--A Form of Ancestor Worship? By Justice Michael Kirby. Sir Anthony Mason Lecture delivered 9 September 1999 to the University of Melbourne's Student Society, Faculty of Law. At the Justice Kirby's Papers website. Original intentionalism v evolutionary adventurism (aka the "doctrine of the Constitution as a 'living force'", a "text set free", etc). Sue v Hill, Cole v Whitfield, and other sea changes are looked at in passing. (Another copy here at the Melbourne University Law Review site.) Constitutional Interpretation Part 1 (100K) Part 2 (112K) Essay-style lecture notes for the Advanced Constitutional Law course taught by Ken Parish at Northern Territory University. Prepared c.2000. Constitutional Interpretation and the Theory of Evolutionary Originalism (215K) By Jeremy Kirk. In Federal Law Review Vol. 27 No. 3 (1999). Stored at the archived copy of the Federal Law Review at the National Library of Australia. This paper formulates a legal theory: "evolutionary originalism", which is "intended to balance the appropriate place of dynamic imperatives with the substantial legitimating force of originalist constitutional theories." The paper itself covers a lot of ground: from "Originalism, literalism and legalism" and "Textualism and intentionalism", to various kinds of sovereignty (legal, political, and popular), amongst other topics. "One important question here is what intentions are relevant. Judges have sometimes talked of what 'the Constitution intended'. An intention or purpose is an end sought to be achieved, which presupposes a conscious subject who can conceive of such desired ends. A document cannot have intentions; it may merely manifest them. Meaning is what the receiver takes from a communication. The random typing of monkeys will eventually produce a work capable of having meaning to us, but it would have no intended meaning and we would have no reason to attach significance to it. Originalism involves seeking the meaning that the speaker intended to convey. The High Court has never clarified exactly whose intent counts and why. There are three main possibilities: the Imperial Parliament, which passed the Act containing the Constitution; the framers, who drafted it in the Conventions; the peoples of the colonies in 1899/1900, who approved it at referenda." Constitutional Interpretation in Australia By "Rob" (and stated by him elsewhere to have been written by him for his legal history course). On the BBC's h2g2 site. An overview, from the "Early Years", through the "Engineers' Legacy" and World War II, to the "Modern Court". The Contextual Role of a Preamble in Statutory Interpretation (142K) By Anne Winckel. In The Melbourne University Law Review Vol. 23 No. 1 (1999). Touches only briefly on the constitutional aspects. Stored at AustLII's online archive. The Dead Hand of the Founders? Original Intent and the Constitutional Protection of Rights and Freedoms in Australia (111K) By Haig Patapan. In Federal Law Review Vol. 25 No.2 (1997). Stored at the archived copy of the Federal Law Review at the National Library of Australia. Discusses the High Court's retreat from literalism to what might as well be called "historicalism" to ascertain the meaning of constitutional provisions. ("Either as the dead hands of the past or the living force of the present, it is difficult to deny that the founders' intention will increasingly influence, if not shape, political, philosophical and jurisprudential debate in Australia.") The Engineers' Case: Seventy Five Years On By John Nethercote. Paper presented to the Samuel Griffith Society in 1995. "Interpretation of the Engineers' Case is likewise affected by what may be regarded as the British approach to Australian government. The decision itself is the occasion of much applause because it provided judicial sanction for greater centralisation of Australian government which was implicit in the financial provisions of the Constitution (as we know from a much-quoted statement by Alfred Deakin) and the national sentiment fostered by Australia's engagement in the Great War. Essentially the High Court shifted from a federalist perspective, in which it interpreted the provisions of the Constitution so as to maintain the viability and autonomy of both the Commonwealth government and the State governments, to a centralist perspective, in which, unless there were express provisions to the contrary, the powers of the Commonwealth were to be interpreted in a full and plenary way, leaving any residue to the States. The objective was achieved by returning the Constitution to British methods of statutory interpretation, by treating it as an ordinary statute of the Imperial Parliament, without any recognition of its provenance in the inter-colonial conventions and negotiations of the 1890s and the fact that it was legitimised, not by the parliamentary proceedings at Westminster, but by the various referenda which preceded them." The Engineers' Case: Time for a Change? By Professor Greg Craven. Paper presented to the Samuel Griffith Society in March 1997. Literalism, the Constitution, and the High Court. ("The essence of this paper has been that literalism, as expounded by the Australian High Court, has always been an intellectual fraud. It has been a fraud in the sense that it is in reality based upon political considerations, but has always asserted its independence of precisely such matters.") The Ghost in the Machine: Exorcising Engineers By Dr Nicholas Aroney. Paper presented to the Samuel Griffith Society in June 2002. "The Engineers Case is widely regarded as the most significant High Court decision in Australian constitutional history. Time and again, the Court has turned to Engineers for the requisite inspiration and guidance on that most fundamental of matters: the appropriate approach to be taken in interpreting the federal Constitution. If Australian constitutional law has had a reputedly machine-like operation over the years, the Engineers Case, more than any other, has been its animating spirit. However, recent cases and commentary have suggested that the Engineers Case no longer bears the authority that it once had. While the Court has never explicitly overruled the decision, a number of cases have cast doubt on many of its fundamental propositions." "In s.51(xxxi) of the Constitution the Commonwealth Parliament is given power to legislate with respect to 'the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws'. Now if the Engineers principle were to be applied in this instance, the just terms requirement in placitum (xxxi) could be easily circumvented simply by legislating for the acquisition of property under some other head of power. The High Court has recognised this theoretical possibility because it has said that, if it were not for the existence of placitum (xxxi), there would be a separate capacity to legislate for the acquisition of property in connection with other heads of power. However, given the existence of placitum (xxxi), the Court has held that when the Commonwealth legislates with respect to the acquisition of property, it will in most cases be taken to be legislating under placitum (xxxi), and is therefore subject to the just terms requirement." Guided By Voices? Constitutional Interpretation on the Gleeson Court (141K) By Dan Meagher. "The purpose of this article is to examine some of the important constitutional decisions of the Gleeson Court and how its members have approached the task of constitutional interpretation." Published 2002 in the Deakin Law Review. Interpreting the Constitution in its Second Century By Jeffrey Goldsworthy. In The Melbourne University Law Review Vol. 24 No. 3 (2000). Argues for "a moderately originalist theory of constitutional interpretation." Stored at AustLII's online archive. "Towards the end of the first century in the life of a constitution, some judges and commentators get restless, and chafe at the constraints of orthodox principles of legal interpretation. They call for greater judicial latitude to interpret the constitution creatively, unconstrained by its founders' intentions, so that it can be adapted to contemporary needs and values more easily than by formal amendment." "Justice Kirby ridicules originalism as a 'quaint' and 'primitive' form of 'ancestor worship'. With respect, this is what Americans call a 'cheap shot'. It is glib, and sufficiently specious to be rhetorically effective, but it trivialises the debate and completely misrepresents the case in favour of originalism. Originalism is principally motivated by two principles: democracy, and the rule of law. In the Australian context, we can add a third: federalism. Ancestor worship has nothing whatever to do with it. Originalism is motivated not by misplaced respect for people in the past, but by a proper respect for people in the present--namely, the electors of Australia and their elected representatives, who, pursuant to s128 of the Constitution, have exclusive authority to change their own Constitution." It's 75 years since the Engineers' Case started the Commonwealth power ball rolling Suzanna Lobez talks to Professor Michael Coper on the famous High Court case. 5 September 1995. On the ABC's Radio National's The Law Report. "Susanna Lobez: 'For the first twenty years after Federation, the Commonwealth Constitution was interpreted so that the newly fledged central government didn't usurp the States' jealously guarded powers. But seventy-five years ago last week, the High Court ruled that Commonwealth industrial law could apply to Western Australian State agencies. And the rest, as they say, is history.'" Judging in a Democracy By Professor Tom Campbell. At the Judicial Conference of Australia's site. Presented to the Second Annual Symposium of the Judicial Conference of Australia, Sydney, November 1997. Compares various "theories of democracy, particularly the established market and the revived discourse theories of democracy, with respect to their implications for the role of courts." Touches on various constitutional issues, in particular those involving the implied rights cases. "[Chief Justice Brennan] identifies the Westminster model of responsible and representative government as inspired by Dicey's conception of an executive answerable to the Parliament and a supreme law-making Parliament representing the electorate in whom political power rests by reflecting their wishes in an effective manner. He then accepts the analysis that this situation applies no longer. Executives do not accurately reflect the wishes of the people and are not controlled by the people's representatives. ... It is on the basis of this 'more realistic view of democracy in our time' that he calls for a reappraisal of our constitutional safeguards of freedom. Since the Parliament does not reflect the people's wishes, and does not in any case control the Executive, who but the courts can protect the oppressed except the courts?" Judicial Legitimacy By Chief Justice Murray Gleeson. Speech delivered to the Australian Bar Association Conference, New York, 2 July 2000. At the High Court's website. Reflections by the Chief Justice on Marbury v Madison, judicial impartiality, judicial review, and other matters. "Judges whose authority comes from the will of the people, and who exercise authority upon trust that they will administer justice according to law, have no right to subvert the law because they disagree with a particular rule. No judge has a choice between implementing the law and disobeying it. This principle is reflected in the provisions of the Australian Constitution. Covering clause 5 provides that the Constitution, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding 'on the courts, judges, and people of every State and of every part of the Commonwealth'. It is the binding force of the Constitution, as the basic law, upon courts, that is the source of the power which courts exercise when they review legislative and executive action. This was the point made by Marshall CJ, almost two hundred years ago, in Marbury v Madison." "Statutory interpretation is a function which sometimes leads to accusations that individual judges, under the guise of construing a statute, are in truth amending it. When such a charge is made, it is an imputation of illegitimacy, and implies not merely error but abuse of power." Originalism in Constitutional Interpretation (230K) By Jeffrey Goldworthy. In Federal Law Review Vol. 25 No.1 (1997). Stored at the archived copy of the Federal Law Review at the National Library of Australia. Argues the case for "moderate originalism" as a means for interpreting the Federal Constitution ("Moderate originalism is the better theory for practical purposes, even if--as is true of any theory--it has counter-intuitive results in a few imaginary situations.") Proportionality in Australian constitutional law Essay-style lecture notes for an ungraduate law course taught by Ken Parish at Northern Territory University. Technological Change and the Australian Constitution (160K) By Geraldine Chin. In The Melbourne University Law Review Vol. 24 No. 3 (2000). Stored at AustLII's online archive. Examines "the methodology used by the High Court to adapt the Constitution to technological change, and argues that the decisions on the technology provisions lack a clear conceptual framework", and proposes an "alternative purpose-based methodology". Textualism: An Australian Evaluation of the Debate between Professor Ronald Dworkin and Justice Antonin Scalia (109K) By David Tucker. At the Sydney Law Review site. Vol 21, No. 4. December 1999. "'Textualism' refers to a judicial method for interpreting either a statute or a constitution that places a special emphasis on 'what was agreed to', taking the text of the instrument as the best evidence of this. Ever since the landmark decision in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd that placed an emphasis on legal formalism, textualism has been regularly adopted as a methodology by some Australian judges." Today's High Court and the Convention Debates By Dr Frank McGrath. Paper presented to the Samuel Griffith Society in August/September 2001. Note that "[t]he full title of Dr McGrath's paper as submitted [to the Samuel Griffith Society] was 'The Use of the Convention Debates before the High Court after the Decision in Cole v. Whitfield'. That title [wa]s truncated...for convenience of presentation." "The decision in Cole v. Whitfield reversed, after some 80 odd years, the rejection by the High Court of the use of the Convention Debates as an aid to the interpretation of the Constitution. This rejection went back to the earliest years of the High Court."
Constitutional Reform	Mainly material which focusses less on the process of alteration and more on what might or ought to be altered. Also constitutional change as a more general issue. Material which focusses on some narrower or more specialised aspect--eg an Australian republic or a bill of rights--will continue to be filed elsewhere. For material on the process of alteration see Amending the Constitution above, and in some respects also Citizen-Initiated Referenda (although note that CIR need not necessarily be used for altering a constitution), and also s128 in the Discussion of Particular Provisions section. (See also the Constitutional Amendments subsection of the latter for commentary on specific past proposals, be they carried or defeated. (Texts and explanatory memorandum, however, I have moved up the Statutes section.) For general reflections on past reform efforts, see Constitutional Reform (post-Federation) up in the History* section.*
Constitutional Reform	Constituting Constitutions--Part 1 George Williams speaks to Lynne Haultain on the Law Report of ABC's Radio National in April 1997. "Why do we have them? What do they, and what should they, include? Should they be short and legalistic, or should they be a sort of cultural artifact which communicates the aspirations of a society?" Followed by "a look at the world's [then] newest [constitution], from South Africa, and possibly the shortest, the Indonesian Constitution." Constituting Constitutions--Part 2 Richard McGarvie, Helen Irving, Tim Costello, and others speak to Lynne Haultain on the Law Report of ABC's Radio National in May 1997. "If we could start from scratch, what would be included in an Australian Constitution? A Bill of Rights? A statement outlining our aspirations as a nation? Should it change our head of state? Should a Constitution be a short concise document? Or should it be a a more lengthy, complete guide to government and society?" The Constitution and Change Excerpts of an interview with Elizabeth Evatt for the "Millennium Dilemma" series by Jane Innes. From the Ask the Expert pages at the Discovering Democracy site. Answers such questions as "Does the Constitution reflect legal and political reality in the 1990s?" and "How will Australians become sufficiently motivated to change the Constitution?" Errata note: at one point she may have been misquoted, for she appears to claim the Aborigines "weren't even mentioned" in the Constitution as it was back in 1901. The Constitution and Change Excerpts of an interview with Justice Michael Kirby for the "Millennium Dilemma" series by Jane Innes. From the Ask the Expert pages at the Discovering Democracy site. Answers such questions as "Does the Australian Constitution deliver representative democracy in Australia?". Many of the questions asked touch on the republic debate. Constitutional Changes After 1975 (PDF) By Gough Whitlam. Speech given on 11 November 2000. Reflections on the "coup d'etat of 11 November 1975", the South Africa 1909 (UK), mandatory sentencing, constitutional change, and a diverse range of other matters. At the ANU's Centre for International and Public Law. "I propose only to touch on some aspects which point to changes in the Constitution which, if made before 1975, would have prevented the crisis or which, if made now, would prevent a repetition." Note: The comment "In 1933 the NSW Constitution Act was amended at a referendum to remove entirely the power of the Legislative Council to amend or reject money bills" is a reference to s5A of the NSW Constitution Act 1902. That provision does not, however, apply to all "money bills", only those for the "ordinary annual purposes of the Government". (Money bills of other sorts would presumably be subject to another deadlock provision, s5B. The latter requires a referendum to succeed and has rarely been invoked.) Constitutional Mania: A Preliminary Diagnosis By Professor Kenneth Minogue. Paper presented to the Samuel Griffith Society in 1995. "Constitutional mania is the elevation of political issues to the constitutional sphere. It is the proposal to reform not merely society but politics itself by not merely passing but entrenching laws that will guarantee a good society." "The reason rules have to be entrenched is that other people cannot be trusted not to change them, or misuse them." "[R]evolutionary doctrines attack the moral beliefs of existing societies in ways which assume that their own moral beliefs had escaped the relativism which they preached about the present. This logic of revolution applies no less to constitutional mania. It assumes on the one hand that Constitutions must be changed in every generation in order to fit the society they govern--which subverts the whole idea of Constitutions. Or, it assumes that earlier Constitutions were based on false beliefs, but that now we have attained moral truth and can base our new Constitution on that. Constitutional reform--a matter of whimsy or political will? Solicitors urged to lead the debate (access restricted) By Terry Purcell. In the Law Society Journal (NSW), October 1997. Brief. Constitutional Reform: The Tortoise or the Hare? By Dr Greg Craven. Paper presented to the Samuel Griffith Society in 1992. Local Government, Democracy, and Constitutional Reform A speech given by Michael Salvaris of the Swinburne University of Technology. Date unknown. "Local government has a key role to play in the reform of Australia�s constitution. The reason for this boils down to a simple equation: constitutional reform is necessarily about democracy and citizenship; and local government is a necessary part of democracy and citizenship." Re-Writing the Constitution By Sir Harry Gibbs. Address to the Samuel Griffith Society in 1992. Should the Constitution expressly recognise the indigenous peoples of Australia? By Michael Warby. "Speaking Notes" for a talk at the "Regional Schools Constitutional Convention, Lowther Hall Anglican Girls Grammar, Thursday 11 May 2000". At the Institute of Public Affairs website.
Corporations	Commonwealth Companies and the Constitution (159K) By Nick Seddon and Stephen Bottomley. In Federal Law Review Vol. 26 No. 2 (1998). Stored at the archived copy of the Federal Law Review at the National Library of Australia. Explores "the constitutional basis for the Commonwealth forming and controlling a Corporations Law company". Including "the limits on Commonwealth executive power in connection with commercial activity and, specifically, incorporating a company and then controlling it". Constitutional and Corporations Law: From Wakim to Hughes--The current status of corporations and securities regulation and enforcement (access restricted) By Andrew Taylor. In the Law Society Journal (NSW), October 2000. Looks at the effect Queen v Hughes and other cases have had on the Corporations Act. "...the Hughes decision creates uncertainty about the validity of application of the Corporations Law in any given case. Ultimately, the decision means that the national scheme completely fails to achieve one of its main objectives, i.e. the extension of Commonwealth power to regulate companies and securities beyond the scope of the Commonwealth Constitution." Corporations Law: A Case Study in Federalism (PDF) By Ian Govey. Less about "federalism" (other than in "cooperative federalism" sense) than an overview of the Corporations Law, its operation, court cases, and proposed solutions to particular problems (eg s51(xxxvii) gets a mention as the "the preferable option"). Paper presented to the Public Law Discussion Group at the Faculty of Law, ANU on 21 February 2001. At the ANU's Centre for International and Public Law. "So overall, how has our federal system of government served us in the field of corporate regulation? There can be no doubt that it has presented some obstacles. While almost everyone agrees that the national market and its corporate participants need to be regulated on a uniform comprehensive basis, the Constitution does not provide the Commonwealth with comprehensive power to regulate the national market. Furthermore, until now there has really been a failure to agree on an effective and robust co-operative approach, despite the identification of major constitutional problems in the field of corporate regulation. Even when agreement is reached, the costs for business, the delay and the costs for government are very considerable. Despite these problems, Australia has managed to achieve substantial uniformity of corporations legislation for the past 40 years and has had a national regulator since 1990." The Political Economy of Corporate Law Reform in Australia By Michael J Whincop. In Federal Law Review Vol. 27 No. 1 (1999). Stored at the archived copy of the Federal Law Review at the National Library of Australia. The "metareform" of federal corporations law. Includes some observations (generally en passant) on the constitutional aspects of the federal powers relating to these matters. "The decision to centralise, or to decentralise, the responsibility for law-making in relation to a subject of shared legislative competence is a fundamental dilemma for the polities of a federation. The advantages and disadvantages of both are well known. Amongst other things, centralisation promotes national unity, it decreases regulatory 'arbitrage', it may reduce search and compliance costs, and it capitalises on economies of scale in administration and law-making. By contrast, decentralisation is more receptive to local conditions, and offers the advantages that derive from inter-jurisdictional competition."
Criminal Law	The Argument Against Mandatory Sentencing By Ruth McColl SC. Paper presented to the Samuel Griffith Society in November 2000. References to the Magna Carta and the English Bill of Rights of 1688, but otherwise little reference to constitutional matters. included mainly for completeness (and provide some useful background for the other link listed here). "'Mandatory sentences' are those sentences which a judicial officer is required to impose no matter what the circumstances of the offence. In other words, the judicial officer has no discretion to impose a higher or lower sentence depending upon the nature of the crime. Mandatory sentences by definition fall foul of the fundamental principle of law that a sentencing court should not impose a punishment which does not fit the crime." Mandatory Sentencing: What would the High Court Say? By Katrina Ford. April 2000. At the OnLine Opinion discussion site. Looks at the constitutionality of mandatory sentencing based upon what "has become known as the Kable principles, following from the Kable case", in which the "High Court reasserted the integrated character of the Australian judicial system and in doing so said 'the States are not free to legislate as they please'."
Cross-Vesting	Can cross-vesting be restored? (access restricted) By Ian Tunstall. In the Law Society Journal (NSW), September 1999. Cross-vesting in family law: where are we now? (access restricted) By Michael Kearney. In the Law Society Journal (NSW), May 1998. The Gould case and Commonwealth and State cross-vesting legislation. The Demise of Cross-Vesting (149K) By Graeme Hill. In Federal Law Review Vol. 27 No. 3 (1999). Stored at the archived copy of the Federal Law Review at the National Library of Australia. "The issue was of course whether State jurisdiction could be conferred on federal courts. There was no binding precedent directly on [the] point, and s77(iii) could be explained away as a measure enabling the Commonwealth to conscript State courts to exercise federal jurisdiction. The other provisions of the Constitution were neutral: although one might say '[t]here is not a word in Ch III which indicates that the States can invest [State] jurisdiction or power in the federal courts', one could equally say '[t]here is no express prohibition of cross-vesting of federal, State and Territory jurisdiction in the Australian Constitution'. Resolution of this issue therefore depended upon the approach to be taken in drawing implications from the Constitution." Mad About the Cross-Vesting Changes Suzanna Lobez talks with former Commonwealth Solictor-General Gavan Duffy QC (who "played a major role in drafting the legislation which brought cross-vesting into being in 1987") about the High Court's decision in the cross-vesting case ("and he's not happy") and later on the same matter to barrister Garrie Moloney. 29 June 1999. On the ABC's Radio National's The Law Report. Our Fragmented Federation: Forum Bias And Forum Shopping In Australia By Cameron Moore. In Federal Law Review Vol. 22 No.2 (1995). The new Service and Execution of Process Act 1992, Phillips v Eyre, and other matters. Touches on constitutional issues related thereto. ("The purpose of this article is to examine the situations in which forum bias occurs, to look at the effect of the cross-vesting legislation, and to examine possible solutions to the problem.")
Defence	Call Out the Troops: an examination of the legal basis for Australian Defence Force involvement in 'non-defence' matters (186K) By Elizabeth Ward. A 1997 Research Paper from the Department of the (Federal) Parliamentary Library. An update of a 1991 Background Paper. Touches on (amongst others) sections 51(vi), 61, 68, and 119 of the Constitution.
The Dismissal	The 1975 Dismissal: Setting the Record Straight By Sir David Smith. Paper presented to the Samuel Griffith Society in 1995. The Dismissal (missing) By Bryan Palmer. A chronology of key events followed by a discussion of issues. Part of his Conventions [of the Constitution] page. The Dismissal 20 years After No author given. Australian Constitution Research Projects The Executive and the Whitlam Dismissal Lecture notes for an ungraduate law course taught by Ken Parish at Northern Territory University. Summarises chapter 10 of Tony Blackshield & George Williams's Australian Constitutional Law: Theory, Practice & Materials (2nd edition, 1998) "with updating cases, commentary and links". The PM and the Governor-General Author unknown. Part of a study guide for AUS1010S & AUS13 political science courses at Monash University. Quite a good summary of the events surrounding the Whitlam dismissal. Should the then Governor-General, Sir John Kerr, have dismissed the Whitlam Government? Sets out the arguments for and against the Whitlam dismissal. At The Echo (a newspaper index which also "produces issue outlines setting out arguments for and against current issues and providing in-depth background").
Elections & Electoral Systems (see also Representation (in Parliament) below)	After a General Election: Some Legal Issues (PDF) (276K) Author unknown. Legal Briefing No. 61, 14 November 2001. At the Australian Government Solicitor's website. Discusses various "legal issues which arise after a general federal election. ... Because of their governmental nature, these issues often involve administration and practice, as well as law." Among the issues covered: ministries, new departments, instruments of delegation and authorisation, statutory authorisations, availability of appropriations, status of bills, etc. See here for an older (1998) version; and also Ministerial Authorisations: Foster and Beyond for an update on s19 of the Acts Interpretation Act (which is discussed briefly in the main 1998 article)). Australia's Political Parties: More Regulation? (129K) By Scott Bennett. 25 June 2002. Including discussion of the constitutional position and constitutional recognition. A current issues brief from the Department of the (Federal) Parliamentary Library. "The parties built on this long-term lack of constitutional or legal status by asserting their freedom to act without any type of external oversight. The operation of preselection processes, the administration of party conferences and the administration of party funds, for example, were all subject only to the parties' own rules and regulations." "In many countries there is a constitutional prescription that parties' internal operations be transparent, and in accordance with the general democratic mores of the nation." Ballotless and Behind Bars: The Denial of the Franchise to Prisoners (121K) By Graeme Orr. In Federal Law Review Vol. 26 No.1 (1998). Stored at the archived copy of the Federal Law Review at the National Library of Australia. Article "argues against the disenfranchisement of prisoners and explores the terrain of possible political and legal reform in this area." Electoral Systems (189K) By Gerard Newman. A research paper from the Department of the (Federal) Parliamentary Library, but stored on the AEC website. Outlines a variety of plurality (eg first-past-the-post), majoritarian (eg Alternative Vote aka preferential voting), and proportional representation voting methods. Includes tables showing which systems were in use in Australian and various overseas countries (as of 1989). "The electoral system adopted by a country probably depends more on the country's political tradition rather than any abstract consideration of the relative merits of different systems. Countries with a British political heritage are more inclined to plurality and majoritorian systems while those of a European heritage are more inclined towards proportional representation." The Federal Constitutional Right to Vote in Australia By Anne Twomey. In Federal Law Review Vol. 28 No. 1 (2000). Stored at the archived copy of the Federal Law Review at the National Library of Australia. Largely concerned with s41, but includes discussions of s25 (in particular its significance in relation to s41), the "directly chosen by the people" clause of s24, and (very briefly) s128, along with the "historical basis" of the franchise and other matters. "The High Court's approach to the constitutional protection of the franchise has been inconsistent. On the one hand it has emasculated the only express protection in s41, by giving it a narrower reading than the plain words of the provision would seem to require, when the usual interpretative approach has been to give the terms of the Constitution their broader meaning. The Court has also used the history of the provision to narrow its scope, despite the conflicting historical views of its meaning. In contrast, a number of judges of the Court have drawn broad implications from the meaning of 'the people' in s24 of the Constitution, seemingly unfettered by the history of the provision and the prior constitutional acceptance of exclusion from the franchise on the grounds of race or sex." One Vote, One Value: Electoral Fraud in Australia By Dr Amy McGrath. Paper presented to the Samuel Griffith Society in March 1997. Despite the title, mainly about the mechanism for resolving disputed elections. Election and Qualification Committees and courts of disputed returns. Argues for a return to the former. (Includes a brief look in passing at the Democratic Elections constitutional amendment proposed at various times during the 1970s and 1980s.) Representing Democracy or Reinforcing Inequality? Electoral Distribution and McGinty v Western Australia (156K) By Greg Carne. In Federal Law Review Vol. 25 No.2 (1997). Stored at the archived copy of the Federal Law Review at the National Library of Australia. Sections 24 and 106, representative democracy, and McGinty v Western Australia. Restrictions on the Timing of Half-Senate Elections By Scott Bennett. 14 May 2002. Research note at the Department of the (Federal) Parliamentary Library site. Vardon v O'Loughlin and s13. Rules for Representation: Parliament and the Design of the Australian Electoral System (138K) By John Uhr. 27 June 1999. A research paper from the Department of the (Federal) Parliamentary Library. Part of "The Vision in Hindsight: Parliament and the Constitution" collection of essays. Thoughts on the 1949 Reform of the Senate By Malcolm Mackerras. Paper presented to the Samuel Griffith Society in July 1999. Among other things, offers a view on the constitutionality of thresholds in voting systems (such as was proposed by Senator Helen Coonan) and of party list systems. "In the case of the Senate we can state as an historical fact that there are two fundamental characteristics of the system which have remained unchanged since 1901. They are 'directly chosen by the people', and States 'voting as one electorate'. Any attempt to change either of those would have a character quite different from the several changes since 1901 which are well known (such as plurality changing to preferences, majoritarian characteristics changing to PR, the introduction of ticket preferences, etcetera)." Voters and the Franchise: the Federal Story (174K) By Jennifer Norberry and George Williams. 28 May 2002. The development of the Commonwealth franchise. Includes discussion of s41 and also the potential franchise implications of the implied right cases. A research paper from the Department of the (Federal) Parliamentary Library. Part of "The Vision in Hindsight: Parliament and the Constitution" collection of essays. When will it be? Timetables for Commonwealth Elections By Margaret Healy. A research note from the Department of the (Federal) Parliamentary Library. A discussion of when the next (ie 2001) federal general election can be held. The interest for our purposes here is that it lists in fair detail all the various conditions (constitutional & legislative) which its timing must fulfil, most of which will be applicable to other such elections. An older version (for the 1998 election) can be found here.
Electronic Commerce	Electronic Bills of Exchange and Promissory Notes in Australia By Gonzalo Villalta Puig. At the website for Murdoch University's E Law journal, September 2000 issue. Brief mention and consideration of s51(xvi). Electronic Bills of Exchange: Will the Current Law Recognise Them? By Leif Gamertsfelder. 1998. Published in the UNSW Law Journal Forum's thematic issue on Electronic Commerce. (Another copy here on AustLII.) Touches on s51(xvi). "Toohey J recognised in McGinty v The State of Western Australia that 'the Constitution must be construed as a living force.' His Honour then went on to explain that "whilst the connotation of words in the Australian Constitution remain fixed, their denotation may vary over time[52] ... traditionally where there have been technological advances.' If one draws an analogy between the cases decided in this context and technological changes influencing electronic commerce, it appears that the Federal Parliament has the power to enact legislation regulating e-bills." E-Payments and Australian Regulation By Andrea Beatty, Mark Aubrey, & Rhys Bollen. 1998. Published in the UNSW Law Journal Forum's thematic issue on Electronic Commerce. (Another copy here on AustLII.) Constitutional issues touched on, particularly with respect to ss51(xiii) & 51(xx).
Environmental Law	Australian Environmental Law Author unknown. Webpage for a university course: PSB320 (Land Development Practice 1). Includes summaries of "Powers to Impact Environmental Legislation within the Australian Constitution" and "Chronology of Important Case Law". Opinion: What happened to the development of environmental law? (access restricted) By Mario Bechelli. In the Law Society Journal (NSW), February 1999. Touches on the Tasmanian Dams Case, s96, and other matters. Promise or Pretence--Compliance with the Intergovernmental Agreement on the Environment: The National Environment Protection Council (Western Australia) Act 1996 By Gary D Meyers, Sonia Potter, and Geoff Leane. At the website for Murdoch University's E Law journal, March 1997 issue. Includes some discussion of the constitutional aspects. "The Commonwealth lacks any specific constitutional authority to legislate in relation to environmental affairs. However, a series of High Court decisions has conferred on the Commonwealth a constitutional authority in respect of the environment far wider than earlier readings of the Constitution might have suggested. These new found powers, not only in specified areas such as 'external affairs', but also indirectly wielded in respect of other Commonwealth heads of power such as the 'corporations' a nd the 'trade and commerce' powers, create real potential for conflict with the States."
Euthanasia	Constitutional Arguments in Favour of Removing the Territories' Power to Make Laws Permitting Euthanasia By Natasha Cica. A research note from the Department of the (Federal) Parliamentary Library Constitutional Arguments Against Removing the Territories' Power to Make Laws Permitting Euthanasia By Natasha Cica. A research note from the Department of the (Federal) Parliamentary Library The Senate Legal and Constitutional Legislation Committee's Report on the Euthanasia Laws Bill 1996: Background, Summary and Responses (56K) By Natasha Cica. A current issues brief from the Department of the (Federal) Parliamentary Library
Executive Powers	The Executive Power of the Commonwealth: its Scope and Limits By Dr Max Spry. A research paper from the Department of the (Federal) Parliamentary Library The nature, source, and scope of the national executive, or nationhood, power By Bruce Topperwien. At his own website. Development, sources, use, scope, and limits. "While the Constitution does not expressly refer to them, the High Court has, from time to time, recognised powers of the Commonwealth that can broadly be described as 'national' or 'nationhood' powers. They have variously been described as: powers of a national character; powers attributable to the existence of the Commonwealth; powers related to the functions of a national government; powers to protect the existence of the Commonwealth; sovereign power to govern a nation; powers appropriate to the status of a nation; powers necessary and proper for the purposes of the nation; powers to protect and advance the nation; and a nationhood power." Refugee Law--Recent Legislative Developments (197K) By Nathan Hancock. 18 September 2001. Border Protection bills, Ruddock v Vadarlis, and other matters. Touches on s61 and (in connection with a privative clause in the Migration Legislation Amendment (Judicial Review) Bill 1998) s75(v) & judicial review. A current issues brief from the Department of the (Federal) Parliamentary Library.
See also: Discussion of Particular Issues F-K and L-Z

Caution: this is only a subpage of my Australian Constitution Resource Guide site. Links should be made instead to http://www-personal.edfac.usyd.edu.au/staff/souters/constitution/

The Australian Federal Constitution

A Guide to Net Resources

Discussion of Particular Issues (A-E)(See also: F-K and L-Z)

See also: Discussion of Particular Issues F-K and L-Z

Discussion of Particular Issues (A-E)
(See also: F-K and L-Z)