The Australian Federal Constitution

Australian Federalism: The Role of the States

2nd report of the Federal-State Relations [Joint] Committee of the Victorian Parliament. October 1998. "Australian federalism and intergovernmental relations", the "trend to centralisation in the Australian federation", and other matters.

Federalism and Sir Owen Dixon

By Dr Philip Ayres. Paper presented to the Samuel Griffith Society in July 1999. Much discussion of Dixon's attitude to constitutional interpretation.

Federalism and the Role of the States: Comparisons and Recommendations

3rd report of the Federal-State Relations [Joint] Committee of the Victorian Parliament. May 1999. Gives lengthy overviews of the systems used in Canada, USA, Germany, Belgium, UK, and the EU, followed by separation sections on:

• The Principles of Federalism
• The Role of the States in the Australian Federation
• Federal Decision-Making
• Reforming Australia's Federal Upper Chamber
• Federal Financial Arrangements

Federalism: an Idea whose Time has Come?

• By Harry Evans. A philosophical discussion of federalism and the role of the Senate. Also in part a critique of the party system's effects on Parliament. ("The Senate was regarded by the framers of the Australian Constitution both as essential to the federal system and as the essentially federalist feature of the Constitution. It was an institution which defined the system of government as a federal system, and without it the system would not merit that description.")
• Delivered to a Samuel Griffith Society conference in March 1997.
• The same paper under the title Federalism and the Role of the Senate can also be found at the Samuel Griffith Society site.

Federalism: A Union made in Heaven? (access restricted)

At the Law Society of NSW's Legal Eagle website. Autum 1997. Includes suggested discussion questions, class exercises, and other student activities.

Federalism: One of Democracy's Best Friends

By John Wheeldon. Paper presented to the Samuel Griffith Society in March 1997. The role of the Senate in theory and practice. Plus a look at the future. ("If the Swiss demicanton of Appenzell Inner-Rhoden, with a population of 15,000, can raise its own income tax, one must wonder why New South Wales cannot do the same. The answer is that the Swiss are serious about their federal Constitution while Australians have dangerously little regard for theirs.")

Making Federalism Flourish

By Professor Wolfgang Kasper. Paper presented to the Samuel Griffith Society in 1993.

Parliament's Development of Federalism (141K)

By Professor Brian Galligan. A June 2001 Research Paper from the Department of the (Federal) Parliamentary Library. Part of "The Vision in Hindsight: Parliament and the Constitution" collection of essays. Looks at the role Parliament has played in "fashioning and reworking the intentions of those who crafted the Constitution". (PDF version)

Rediscovering the Advantages of Federalism

• By Geoffrey de Q Walker. Papers on Parliament: Collection No. 35. Date uncertain, but prob. c.1999. Includes a Q&A session with the author at the end.
• "In his appraisal of the American system, Bryce identified among the main benefits of federalism 'the opportunities it affords for trying easily and safely, experiments which ought to be tried in legislation and administration'..."
• "Hardly a week passes without some lobby group lamenting the different approaches taken by state laws to current social or economic issues, and calling for uniform national legislation to deal with the problem."

The Seven Pillars of Centralism: Federalism and the Engineers' Case (176K)

• By Professor Geoffrey de Q Walker. Paper presented to the Samuel Griffith Society in June 2002.
• "The High Court of Australia's 1920 decision in the Engineers' Case remains an event of capital importance in Australian history. It is crucial not so much for what it actually decided as for the way in which it switched the entire enterprise of Australian federalism onto a diverging track, that carried it to destinations far removed from those intended by the generation that had brought the Federation into being."
• "Engineers inaugurated a method of one-sided interpretation that reversed the polarity of the Commonwealth Constitution in a way that contradicted the document's plain intention and ignored the first principles of legal interpretation. It has violated the wishes of the Australian people as consistently expressed in constitutional referendums, and mocked the sovereign power recognized in them by s.128. Engineers literalism has destroyed the Constitution's self-adjusting 'reflexivity', and eroded the fundamental right of State communities to govern themselves."

Ten Advantages of a Federal Constitution

By Professor Geoffrey de Q. Walker. Paper presented to the Samuel Griffith Society in August 1998. An extract can also be found here at the OnLine Opinion discussion site (where it says the original came from a policy monograph from the Centre for Independent Studies).

The Threat to Federalism

By Sir Harry Gibbs. Paper presented to the Samuel Griffith Society in 1993.

Coercive Questioning After Charge (189K)

• By Stephen Donaghue. 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. Contempt of court, self-incrimination, and related matters. Deals with commissions of inquiry as well as courts of law. Includes a discussion of the constitutional limitations, including a discussion of "implied limitations on the Commonwealth authorisation of interference with State courts".
• "If criminal proceedings have been commenced in a State court, Commonwealth coercive powers may not be used to require an accused to answer incriminating questions, as this would be contempt of the State court of the type discussed in Hammond's case. While State legislation is able to authorise contempt of this type in relation to a State court, Commonwealth legislation is probably unable to do so as a result of the implied constitutional limitation that prevents the Commonwealth from legislating in a way that would interfere with the ability of State courts to exercise their functions."

The Commonwealth V Mewett (1997) 191 CLR 471: Common Law Actions, Commonwealth Immunity and Federal Jurisdiction

• By Nick Seddon. 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. Explores the question of Crown immunity from lawsuit in relation to the case mentioned in the title, including the constitutional aspects.
• "It is strange that the spectre of this mediaeval concept [of Crown immunity] not only continues to loom over government activities, including commercial activities, but also that its precise workings are still the subject of controversy. ... The basis upon which the Commonwealth is liable in tort and contract claims was closely examined in Commonwealth v Mewett."

Do Hard Laws Make Bad Cases? - The High Court's Decision in Kable v Director of Public Prosecutions (NSW)

By Elizabeth Handsley. 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. ("The case of Kable is a bad one in that it represents the further entrenchment of a doctrine which rests on doubtful assumptions which the High Court is both unwilling and unable to defend, and it prevents the use of the State judiciaries for the salutary purpose of protecting the rights of those who would otherwise be (and now are) at the mercy of the majoritarian whims of sovereign parliaments.")

The Electoral Jurisdiction of the High Court as the Court of Disputed Returns: Non-Judicial Power and Incompatible Function? (158K)

By Paul Schoff. 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. ("There are factors which strongly suggest that electoral jurisdiction is not appropriate to be exercised by the High Court.")

Federal discrimination claims after Brandy (access restricted)

• By Joe Catanzariti. In the Law Society Journal (NSW), May 1995. Brandy's case and the Human Rights and Equal Opportunity Commission.
• In Brandy's case, the High Court held that "[t]he Human Rights and Equal Opportunity Commission is not a duly constituted federal court and had become involved in the exercise of federal judicial power through its procedures for enforcing its determinations."

The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation

Report (#92) of the Australian Law Reform Commission site. Issued September 2001.

Federal Jurisdiction (158K)

Adversarial Background Paper 1, December 1996. At the Australian Law Reform Commission site. Includes:

• Federal jurisdiction as national jurisdiction
• The nature of federal jurisdiction
• The source and exercise of federal jurisdiction
• The scope of federal jurisdiction
• Federal jurisdiction in the context of the Australian federation

The Judicial Power of the Australian Capital Territory

By David Mossop. 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 history of judicial power in the ACT, its relationship to the federal judicial power, the limits on the jurisdiction of ACT courts, etc.

Judicial Power, The Duality Of Functions and the Administrative Appeals Tribunal

• By Allan N. Hall. In Federal Law Review Vol. 22 No.1 (1995).
• Various Chapter III issues discussed (including the nature of a "matter").

Of Fortress Australia and Castles in the Air: The High Court and the Judicial Review of Migration Decisions (117K)

By Mary Crock. In The Melbourne University Law Review Vol. 24 No. 1 (2000). A case note about Abebe v Commonwealth & Minister for Immigration and Multicultural Affairs v Eshetu. Section 75(v) & prerogative relief. Stored at AustLII's online archive.

Polluting The Stream Of Justice (access restricted)

By Rodney Brender. In the Law Society Journal (NSW), May 1997. Kable v The Director of Public Prosecutions for New South Wales (1996) and the effects of Chapter III of the Federal Constitution on State judiciaries.

Proceedings in Relation to Children in the Post Cross-vesting Era (91K)

• By Dorothy Kovacs. 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. Children and the jurisdiction of the Family Court in the post cross-vesting era.
• "A significant limitation on the welfare power in the Family Law Act is that the assumption of jurisdiction must be an exercise of the marriage power or the matrimonial causes power in the Constitution or of the powers in respect of children referred to the Commonwealth by the States in 1986."

The Appointment and Removal of Judges

By Sir Anthony Mason. Part of Fragile Bastion: Judicial Independence in the Nineties and beyond. At the website of the Judicial Commission of NSW. Looks at the way federal judges are currently appointed and discusses a range of alternate approaches.

The Appointment of Judges

Fact sheet from the Constitutional Centenary Foundation.

• How are Australian (State & federal) judges appointed?
• What are the advantages of the present method?
• What are the disadvantages?
• What alternatives are there?

The Appointment of Judges

By Michael Lavarch MP. Paper presented to the Courts in a Representative Democracy Conference (September 1995). Located at the website for the Australian Institute of Judicial Administration on SCALEPlus. A look at the title matter by the then Federal Attorney-General. See also Justice David Malcolm's commentary on this paper.

The Appointment of Judges

By R.W. Gotterson QC. At the Judicial Conference of Australia's site. Presented to the Third Annual Colloquium of the JCA, Surfers Paradise, November 1998.

A Changing Judiciary

By Chief Justice Murray Gleeson. Speech delivered to the Judicial Conference of Australia, Ayres Rock, 7 April 2001. At the High Court's website. (Another copy here at the Victorian Certificate of Education's Politics Resources site.) Reflections by the Chief Justice on the High Court, judicial tenure, remuneration, independence, and other matters. Assorted constitutional matters touched on.

The Constitutional Centenary and the Australian Courts

By Professor Cheryl Saunders. Seventh AIJA Oration in Judicial Administration, delivered in Melbourne on 23 February 1996. At the website for the Australian Institute of Judicial Administration on SCALEPlus. Judicial dependence and interdependence, plus a look at the "recurring issue of how civil, political and other more recently acknowledged rights of individuals and groups are and should be protected in the Australian constitutional system including the role, if any, which courts should play."

Current Issues for the Australian Judiciary

By Chief Justice Murray Gleeson. Delivered to (apparently) the Supreme Court of Japan, 17 January 2000. At the High Court's website. Before he gets to the "current issues" of the title, he first gives a lengthy overview of the Australian (and particularly federal) judiciary.

The Future State of the Judiciary

• By Chief Justice Murray Gleeson. Delivered to the Judicial Conference of Australia: Colloquium on the Courts and the Future, 8 November 1998. At the High Court's website. The chief justice takes a look into his crystal ball.
• "The constitutional role of the courts, involving not merely the enforcement of the Federal compact contained in the Commonwealth Constitution, and the enforcement of the various State constitutions, but also the more general function of upholding and maintaining the rule of law, is essential and inalienable and will not be modified."

How Should Judges be Selected?

Issues paper from the Constitutional Centenary Foundation. Covers selection of Australian judges (ie State as well as federal) in general.

Judicial Independence (425K)

By George Winterton. March 1995. At the website for the Australian Institute of Judicial Administration on SCALEPlus. Concentrates mainly on matters of judicial remuneration, but also has sections on "fundamental principles" and "the constitutional position of judges". Looks as the States as well as the Commonwealth (and includes an appendix on judicial remuneration in England and NZ. Has a large bibliography and an absolutely enormous number of footnotes (over 700).

Judicial Tidy-Up or Takeover? Centralism's Next Stage

• By Dr John Forbes. Paper presented to a Samuel Griffith Society conference in July 1999.
• "Judicial centralism in Australia is a phenomenon of the last twenty years. The courts are the last branch of government to be affected. Centralisation of other branches may be traced through the Engineers' Case of 1920 (the end of federalist presumptions), the Financial Agreement of the 1920s, the Uniform Tax Case of 1942, the explosion of the defence power during World War II, and the apotheosis of the external affairs power in the Franklin Dam Case of 1983."

The Judiciary

By Chief Justice Murray Gleeson. 24 December 2000. Boyer Lecture No. 6 in the series "The Rule of Law and the Constitution". At the ABC's Radio National site. Chief Justice Gleeson "talks about the independence of the judiciary, its accountability, and its role in upholding the Constitution."

Review of the adversarial system of litigation: Federal tribunal proceedings

Issues paper 24. At the Australian Law Reform Commission site. Includes sections on "Federal tribunals and the adversarial system ", "Tribunals and the Constitution", etc.

The Role of the Judge and becoming a Judge

By Chief Justice Murray Gleeson. Delivered to the National Judicial Orientation Program, 16 August 1998. At the High Court's website. ("There are four aspects of judicial status or performance that will form the basis of my remarks. These are independence, impartiality, fairness, and competence.")

State of the Judicature (1997) (missing)

• By former Chief Justice Gerard Brennan. Delivered to the Australian Legal Convention, 19 September 1997. At the High Court's website. Covers impartiality, "Judicial and Practitioner competence", public confidence, and access to justice.
• "Recent criticisms of decisions of the Courts, especially decisions made in sentencing offenders and in constitutional and native title cases, have seldom referred to, or even revealed any acquaintance with, the relevant facts or the reasons for judgment. Postures have been adopted and declarations have been made as to what the decisions ought to have been in order to satisfy some non-legal criterion which the critic embraces. ... By all means let defects in applying the judicial method be criticized--trenchantly criticized if need be--but unless the rule of law has been misapplied, criticism of a decision is destructive of public confidence in the institution on which the rule of law depends."

State of the Judicature (1999)

By Chief Justice Murray Gleeson. Delivered to the Australian Legal Convention, 10 October 1999. At the High Court's website. Covers many areas: the role of the jury, "the unrepresented litigant", "trans-national litigation", evaluating judicial performance, amongst others.

Federal-State Financial Relations: The Deakin Prophesy (169K)

• By Denis James. 4 April 2000. A look at the development of federal-state financial relations. Section 96 gets lots of space, but other parts of the Constitution get a look in as well (see the paper's appendix for a (long-ish) list of constitutional provisions "which have had an important bearing on the moulding of current Federal-State relations, especially financial relations"). A research paper from the Department of the (Federal) Parliamentary Library. Part of "The Vision in Hindsight: Parliament and the Constitution" collection of essays.
• "...a warning bell sounded for the States when the Commonwealth entrenched its position on road funding with the passage of the Federal Aid Roads Act 1926."
• "It might be tempting to simply conclude that Alfred Deakin was correct in asserting that, once having tasted the 'sweets of supremacy', the Federal Parliament would inevitably legislate to extend the financial and policy role of the Commonwealth at the expense of the States. However, this is probably too simplistic an explanation. In the matter of Federal-State financial relations, perhaps more than in any other area of legislation, Parliament has frequently been placed in a situation where it has been constrained in its ability to modify the will of the Executive. There is little doubt that successive [Commonwealth] Executives have come to embrace the perceived advantages arising from the structure of Federal-State financial relations which has evolved through the decades."

Review of Western Australian State Taxes 1994: Chapter 9 Federal-State Financial Relations

• By the "Taxation Policy Elective". At the website for Murdoch University's E Law journal, December 1994 issue. Note: this version is in plain text (as opposed to HTML).
• "During the Second World War...the Commonwealth introduced legislation which replaced separate State and Federal income taxes with a single uniform tax throughout Australia. As a result, the States lost a source of tax which represented over 45% of their taxation revenue, yet their expenditure responsibilities basically remained the same. Since then, Australia has been in a state of 'chronic vertical fiscal imbalance'."

Cheques and Balances (174K)

By Maurice Kelly. 28 May 2002. Looks at "the relationship between the Parliament and the Executive with respect to the control and management of the Commonwealth's financial affairs", which it does so "by focusing on a selection of issues and events, since Federation, that became significant in shaping and reshaping the operating frameworks within which the Executive conducts its financial affairs and on which Parliament and the Executive regularly interact (or ought to)". In particular it "focuses on section 94 of the Constitution, the provision which requires the Commonwealth to pay its 'surplus revenue' to the States," but also covers other related ground as well (such as ss53 and 83). A research paper from the Department of the (Federal) Parliamentary Library. Part of "The Vision in Hindsight: Parliament and the Constitution" collection of essays.

The Commonwealth Budget: Process and Presentation (166K)

By Richard Webb. 19 March 2002. A research paper from the Department of the (Federal) Parliamentary Library. Touches on constitutional matters, such as s83.

Financial Centralisation: The Lion in the Path

By David Chessell. Paper presented to the Samuel Griffith Society in 1992.

Fiscal Balance in the Australian Federation

• By Professor Jonathan Pincus. Paper presented to the Samuel Griffith Society in August/September 2001. Argues "the cases in favour of two kinds of Commonwealth grants to the States: those to equalise the fiscal capacities of the States (Horizontal Fiscal Equalization), and those to supplement the tax revenues of the States ('Vertical' grants)."
• "'The only good tax is a Commonwealth tax', said a former Premier of Queensland. What he probably did not mean is that all Queensland taxes were hopelessly economically inefficient when compared with all Commonwealth taxes. Rather, I suspect he believed that it was politically easier for him to finance Queensland public spending from grants than from Queensland taxation itself. Federal grants seem to come at no or low political costs within the State; State taxes are resisted at State elections."
• "Although it made some transitional arrangements, the Constitution of 1901 left unresolved the ultimate fiscal shape of the Australian federation. The issue was determined by the working of everyday politics, by High Court interpretation and by constitutional referenda."

Should Western Australia Adopt An Evidentiary Privilege Protecting Communications Given In Religious Confessions?

• By Michael A Perrella. At the website for Murdoch University's E Law journal, September 1997 issue. Also includes a discussion of the Federal Constitution's s116 in relation to the issue of privacy in the confessional. (eg "Section 116 should provide a constitutional safeguard to members of the clergy who give spiritual guidance and forgiveness to those who may have fallen by the wayside.")
• "Penitents who have committed offences against the State [of Western Australia] may be less inclined to confess such sins if they are aware that at present most courts in Western Australia have the power to force disclosure of the contents of any confession. This presents a particularly grave dilemma for penitents who have committed a serious offence against the State and in most need of the spiritual guidance offered in a religious confession. For a penitent whose religion considers the sacrament of confession as obligatory, it could hardly be said that such a person is not prohibited from practising his or her religion."

It also includes (after some hesitation) those works which delve into abstract legal theory in which the constitutional aspects may only be a subset (and specifically Australian ones may not be mentioned at all). That is to say, they will mainly be works of British legal theory which may nevertheless have application in some degree, marginal or otherwise, to Australian constitutional law. (I particularly had works dealing with the ideas of John Austin in mind, of which a number have appeared on the WWW.) Note: due to the nature of such works, the siting of any particular one here (rather than in, say, Other Papers of Interest) will probably to some degree appear somewhat arbitrary, since it will ultimately depend on my own assessment as to how far one can stretch the term "constitutional law".

Austin's Theory of Law (missing)

By Bob Moles. Part of the UNIServe Law site.

Commonwealth v Western Australia and the Operation in Federal Systems of the Presumption that Statutes do not apply to the Crown

By Greg Taylor. In The Melbourne University Law Review Vol. 24 No. 1 (2000). Stored at AustLII's online archive.

The Decline and Fall of Dworkin's Empire (missing)

By Bob Moles. Part of the UNIServe Law site.

Definition and Rule in Legal Theory: A Reassessment of H.L.A. Hart and the Positivist Tradition (missing)

By Robert N. Moles. A full-length online book (complete with index), previously published by Basil Blackwell (1987). Part of the UNIServe Law site.

Introduction to the Commonwealth Constitution and General Principles of its Interpretation (missing)

By Ian Connor. Federal constitutional law Study Guide (1996) from the Faculty of Law, Queensland University of Technology.

• Motives for Federation
• Drafting of the Constitution
• Division of Legislative Powers, between Commonwealth and State Parliaments
• Basic Approach to Testing Constitutionality of Statutes (Commonwealth or State)
• Scope of Commonwealth Legislative Powers and Characterisation of Acts
• Power Over "Incidental" Matters
• Severance
• Techniques for Exploiting Several Powers in One Act

An Introduction to the Study of the Law of the Constitution (1347K)

By Albert Venn Dicey (1835-1922). 8th edition, 1914. At the Constitutional History & Commentary site of the (US) Constitution Society.

Legal Positivism

• By Kenneth Einar Himma. Article in The Internet Encyclopedia of Philosophy.
• "Legal positivism is a conceptual theory emphasizing the conventional nature of law. Its foundation consists in the pedigree thesis and separability thesis, which jointly assert that law is manufactured according to certain social conventions. Also associated with positivism is the view, called the discretion thesis, that judges make new law in deciding cases not falling clearly under a legal rule."

Leviathan

By Thomas Hobbes (1588-1679). Published 1651. At the Politics Hypertext Library of the Dept. of Politics & International Relations, University of Wales, Swansea. Divided into 5 parts. To download the entire (about 1100K) document in one go, click here at the Liberty Library of Constitutional Classics site of the (US) Constitution Society.

Natural Law

• By Kenneth Einar Himma. Article in The Internet Encyclopedia of Philosophy. Includes a discussion of Ronald Dworkin's "so-called third theory of law".
• "The term 'natural law' is ambiguous. It refers to a type of moral theory, as well as to a type of legal theory, despite the fact that the core claims of the two kinds of theory are logically independent. According to natural law ethical theory, the moral standards that govern human behavior are, in some sense, objectively derived from the nature of human beings. According to natural law legal theory, the authority of at least some legal standards necessarily derives, at least in part, from considerations having to do with the moral merit of those standards.

On Constitutional Design

• By Robert Goodin. A "working paper" at the website for ARENA (Advanced Research on the Europeanisation of the Nation-State). On constitutional design, constitutional aspirations, and constitutional options.
• "Political theorists do not have a particularly distinguished track record when it comes to designing constitutions. That is not from the want of trying. Bentham spun out massive constitutional codes. Rousseau commented famously on the constitutions of Corsica and Poland. Aristotle's Academy assembled commentaries on the constitutions of 158 Greek city-states, the sole survivor of which is Aristotle's own distinguished discussion of the constitution of Athens. Most remarkable was Locke, who in his capacity as secretary to the Earl of Shaftesbury drafted a text which actually served as the constitution of the colony of the Carolinas, of which Shaftesbury was one-eighth proprietor."
• "Article 80 of Locke's constitution for the Carolinas would prohibit us (and Locke) from doing what we have just been doing. It reads: 'Since the multiplicity of comments ... have great inconveniencies, and serve only to obscure and perplex; all manner of comments and expositions, on any part of these Fundamental Constitutions, or any part of the common or statute law of Carolina, are absolutely prohibited.'"

Philosophy of Law

By Kenneth Einar Himma. Article in The Internet Encyclopedia of Philosophy. Analytic jurisprudence, normative jurisprudence, and other matters.

Scripting Empire: The "Englishman" and Playing for Safety in Law and History

• By Ian Duncanson. In The Melbourne University Law Review Vol. 24 No. 3 (2000). Bentham, Austin, Gladstone, et al, and how "[i]mperialism 'came home' in positivist doctrines of sovereignty, securing government from the people in a fresh metaphysics of authenticity." Stored at AustLII's online archive.
• "If the state as legal sovereign was as yet a possible hostage to democratic fortune, the state as administrator and pedagogue came to the rescue. The aims of Gladstone's civil service reforms, designed by Northcote and Macaulay's brother-in-law and former Indian civil servant, Trevelyan, were to reconcile the middle classes to the oligarchic state."

Second Treatise on Government

By John Locke (1632-1704). 1690. At the Politics Hypertext Library of the Dept. of Politics & International Relations, University of Wales, Swansea. (Another copy here at the Liberty Library of Constitutional Classics site of the (US) Constitution Society.)

Thomas Hobbes and the Invented Tradition of Positivism: Reflections on Language, Power, and Essentialism (130K)

• By James Boyle. At his own website. Originally published in University of Pennsylvania Law Review, January, 1987. Another copy at Boyle's older site here. An essay about "about the legal theory of Thomas Hobbes and about the things that are revealed when one compares Hobbes's ideas with the main line of legal positivism.
• "Hobbes occupies a paradoxical position in traditional jurisprudence--revered but frequently overlooked, hailed a precursor but not as a founder, and used alternately as a bogeyman and an illustration of the difference between political and legal theory.

Governors, Democracy, and the Rule of Law

By Sir Guy Green. Sir Robert Menzies Oration, 29 October 1999. At the University of Melbourne site. Reflections on three models of Governor ("interventionist", "benign mentor", and "mechanical idiot"), the curious origin of Bagehot's well-known aphorism that "under a constitutional monarchy the Sovereign has 'three rights--the right to be consulted, the right to encourage, the right to warn'", and other matters.

The Role of the Governor-General

By Sir David Smith. Paper presented to a Samuel Griffith Society conference in March 1997. At the Australians for Constitutional Monarchy website. Historical, duties, etc. "I shall speak about the history of the office, about the duties of the office, and about current proposals to alter the Australian Constitution by changing its provisions relating to the office." The paper is linked here (rather than on my republic page) because he spends more space looking at the present office and its duties than at future proposals. (Another copy can be found here at the Samuel Griffith Society site.)

What shall we do with ex-Governors-General?

• By Sir David Smith. Paper presented to the Samuel Griffith Society in August/September 2001.
• "For the major part of its first century as a federation, Australia treated its Governors-General badly, and its ex-Governors-General not at all. We enshrined the salary of the office in s.3 of the Constitution, fixed it at ten thousand pounds until the Parliament provided otherwise, and said that it could not be altered during the Governor-General's continuance in office. The ten thousand pounds became twenty thousand dollars in 1966, but Parliament was tardy in providing otherwise, and the Governor-General's salary, fixed in 1900, remained unchanged until Sir John Kerr's appointment in 1974."
• "Our first Governor-General, the Earl of Hopetoun, was the first victim of government and parliamentary parsimony. Apart from the constitutional provision for his salary, no appropriation was made for an allowance to meet the cost of maintaining the Governor-General's establishment. ... [O]ur first twelve Governors-General were expected to meet staff salaries and some household expenses of Government House out of their salary of £10,000. The last to do both was McKell, who was ready to retire at the end of his extended term, particularly as he was heavily out of pocket, with half of his salary going on 'staff sustenance'. He informed Menzies of this, and the Prime Minister acted to make this a charge against the Treasury, a change which was greatly appreciated by McKell's successor, Sir William Slim, and those who were to come after him."

A. F. Mason--From Trigwell to Teoh (126K)

• By Justice Michael Kirby. Sir Anthony Mason Lecture 1996 to the Melbourne University Law Students' Society, 6 September 1996. At the High Court's website. Former Chief Justice Mason and his influence on the High Court.
• "Let me identify some of the changes which came about during Chief Justice Mason's service which seem unlikely to be reversed: ... Democracy: Chief Justice Mason rejected simplistic notions of democracy as involving no more than majority votes in Parliament intermittently elected. Modern Australian democracy is more complex. It involves a respect for the human rights of minorities, a new sensitivity to the position of the indigenous peoples of Australia...and an awareness of the important developments which are occurring, at an international level, in the field of human rights and fundamental freedoms."

Attacks on the High Court (access restricted)

• By Patrick Fair. In the Law Society Journal (NSW), April 1997. A comment from the president of the Law Society of NSW on the recent criticisms of the activist role of the High Court.
• "It should be possible for our politicians and academics to enter a public debate on an important decision of our highest court or an opinion relevant to its workings without attacking the members of the Court. To the extent that these public comments touch on the personal competence or integrity of the members of the Court, they are highly inappropriate and should not have been made."

The Changing of the Guard at the High Court

• Suzanna Lobez talks to John Waugh, Gerard Carney, and George Williams on the then new lineup on the High Court bench. 26 May 1998. On the ABC's Radio National's The Law Report.
• "George Williams: ... 'Since '95, as you say, we've had five out of the seven judges going; we've only got two of the judges left from the Mason court, that's Justices Gaudron and McHugh, and what that means is that we're facing a court today which is extremely hard to pick."

The High Court

By Dr Colin Howard. Paper presented to the Samuel Griffith Society in 1994.

The High Court & Federal Jurisdiction

• Lecture notes for an ungraduate law course taught by Ken Parish at Northern Territory University. Covers (inter alia) "what is federal jurisdiction", appointment & removal of justices, jurisdiction & procedure, the limits of federal judicial power, and the Kable case.
• Note: the index page indicates that these notes summarise part of Tony Blackshield & George Williams's Australian Constitutional Law: Theory, Practice & Materials (2nd edition, 1998), however this is not stated in the notes themselves.

The High Court and the States

• By Dr Greg Craven. Paper presented to the Samuel Griffith Society in 1995.
• Deals with "the relationship between the High Court and the States", using section 90 (which decrees that excise taxes are to be the exclusive province of the Commonwealth) "as a particularly grisly case study".

The High Court as Gatekeeper

• By Sir Anthony Mason. In The Melbourne University Law Review Vol. 24 No. 3 (2000). Stored at AustLII's online archive.
• A "review the special leave to appeal procedure" and the "concept of justiciability as 'gatekeeper' mechanisms" by a former Chief Justice.

The High Court--How Political?

• Suzanna Lobez (after two other pieces, one on the tuna "wars" and the Law of the Sea and the other on the deregistration of the One Nation party) talks with David Solomon, the author of the (then) new book on the High Court, on "how the decisions of the court impact on government policy and...the increasingly hostile response of governments towards the High Court." 24 August 1999. On the ABC's Radio National's The Law Report.
• "Susanna Lobez: 'Why, do you think, David? Why has it changed? What's liberated the politicians to come out fighting?' David Solomon: 'It may be that we are more inclined to regard judges as being human, that they're not God sitting up there. And the politicians of course know that ultimately High Court judges are appointed by the government of the day, and the yelling and screaming to some extent is intended to influence the way in which the appointment process is undertaken by governments.'"

The High Court--The Centralist Tendency

• By Professor L.J.M. (Mark) Cooray. Paper presented to the Samuel Griffith Society in 1992.
• "The rule of law which once meant government, subject to known and stable laws and the Constitution, is today used to legitimate the momentary will of government. Rule by law has replaced the rule of law."

The Key Stone of the Federal Arch

By Chief Justice Murray Gleeson. 17 December 2000. Boyer Lecture No. 5 in the series "The Rule of Law and the Constitution". At the ABC's Radio National site. The author "takes us on a guided tour of the High Court's history, its make-up, and constitutional foundations."

The Law Report on the High Court

Part 1

Part 2

Lynne Haultain talks to Cheryl Saunders, David Bennett, Michael Lavarch, Katharine Cronin, & David Marr on (in the first part) the High Court, its role, public perceptions, and then (in the second part) goes on a "walk through the decisions which have shaped our nation, and our views of the Court", including the Wik, Mabo, Franklin Dam, & Communist Party Dissolution Cases. 9 & 16 September 1997. On the ABC's Radio National's The Law Report.

An Over-Mighty Court?

By Ian Callinan. Paper presented to the Samuel Griffith Society in 1994.

Principal Issues Confronting Different Courts of Final Jurisdiction on the Eve of the 21st Century

By former Chief Justice Sir Gerard Brennan. Delivered at the Mason Court and Beyond Conference, 10 September 1995. At the High Court's website.

Radio National on the High Court--Part 1

Cheryl Saunders, Michael Lavarch, and others speak to Lynne Haultain on the Law Report of ABC's Radio National in April 1997. ("What is the role of the Court? Is its role changing? What factors shape the public's perception of the Court?") Section 117 gets a mention at one point.

Radio National on the High Court--Part 2

• Cheryl Saunders, Michael Lavarch, and others speak to Lynne Haultain on the Law Report of ABC's Radio National in April 1997.
• "A walk through the decisions which have shaped our nation, and our views of the Court, including: the Wik and Mabo decisions; the Franklin Dam Case; the Communist Party Dissolution Case; lifting the ban on the Jehovah's Witnesses; the Chamberlains in the High Court; and Queensland's attempt to have Elizabeth II declared the Queen of Queensland?"

Reforming the High Court

By Greg Craven. Paper presented to the Samuel Griffith Society in 1996.

The Role of the States in High Court Appointments

By Professor Gabriel A. Moens. Paper presented to the Samuel Griffith Society in March 1997. Looks at the "current minimalist model", at procedures for appointing judges in other federations (US, Canada, Germany, and Malaysia), and at "the Queensland remedy".

Should The Courts Determine Social Policy?

By Peter Connolly. Paper presented to the Samuel Griffith Society in 1993.

What is Judicial Activism Anyway?

• Suzanna Lobez talks with Cheryl Saunders & David Solomon on the High Court and its role, and on such questions as: "Is judicial activism or creativity good or bad? Is the tension between politicians and judges inevitable? How political is the appointment process, and should it be changed?" Excerpts of a speech by Sir Anthony Mason are also presented. 11 March 1997. On the ABC's Radio National's The Law Report.
• "Sir Anthony Mason: ... 'Why, do you think, David? Why has it changed? What's liberated the politicians to come out fighting?' David Solomon: 'It may be that we are more inclined to regard judges as being human, that they're not God sitting up there. And the politicians of course know that ultimately High Court judges are appointed by the government of the day, and the yelling and screaming to some extent is intended to influence the way in which the appointment process is undertaken by governments.'"

Case Notes: Theophanous v Herald & Weekly Times Ltd & Stephens v West Australian Newspapers Ltd (34K) (missing)

By Anne Twomey. In The Melbourne University Law Review Vol. 19 No. 4 (1995).

Civil Rights and Other Impediments to Democracy

• By Justice Roderick Meagher. Paper presented to a Samuel Griffith Society conference in July 1999. "Civil rights" and the implied rights cases.
• "In the face of the advancing flood of assertions of civil rights it behoves us to ask ourselves what it all means. What is a 'right'? When does a normal right become 'civil' or 'fundamental'? Those who are most vociferous in their assertion of rights at least imply, if they do not express, that it is something with which no law-making body, not even Parliament itself, may tamper, hence 'inviolable' and 'inalienable'."

The Clamour of Silent Constitutional Principles (192K)

By Stephen Donaghue. In Federal Law Review Vol. 24 No. 1 (1996). Stored at the archived copy of the Federal Law Review at the National Library of Australia.

Constitutional Implications from Representative Democracy (173K)

By Jeremy Kirk. In Federal Law Review Vol. 23 No. 1 (1995). Stored at the archived copy of the Federal Law Review at the National Library of Australia.

A Constitutional Right to a Fair Trial? Implications for the Reform of the Australian Criminal Justice System (125K)

By Janet Hope. In Federal Law Review Vol. 24 No. 1 (1996). Stored at the archived copy of the Federal Law Review at the National Library of Australia.

Dead Ducks and Endangered Political Communication--Levy v State of Victoria and Lange v Australian Broadcasting Corporation

By Anne Twomey. At the Sydney Law Review site. Vol 19, No. 1. March 1997. A look at what to expect from the two (then forthcoming) title cases.

Defamation and Political Discussion

Author unknown. Legal Briefing No. 15, 8 November 1994. At the Australian Government Solicitor's website. The AGS looks at Theophanous v The Herald and Weekly Times Limited and Stephens and Others v West Australian Newspapers Limited.

Freedom of Political Communication, the Constitution, and Common Law (175K)

• By Adrienne Stone. 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. Lange, Theophanous, the common law, and other matters.
• "Perhaps the most remarkable feature of Australian constitutional development in the past decade has been the advent of the constitutional protection of political communication. One important effect of this development has been to focus Australian constitutional debate on the long-standing and rich tradition of constitutional protection of speech in the United States."

Freedom of Expression and Public Affairs in Australia and the United States: Does A Written Bill Of Rights Really Matter? (42K)

By Robert M. O'Neill. In Federal Law Review Vol. 22 No.1 (1995).

Freedom of speech and Defamation

Author unknown. Legal Briefing No. 40, 4 December 1997. At the Australian Government Solicitor's website. The AGS looks at the Lange case.

Freedom of speech: Idiotic antics, corruption, TV/radio ads and the Commonwealth Constitution (access restricted)

Author unknown. Bruce Ruxton, Andrew Theophanous, and the implied freedom speech decision of the High Court. At the Law Society of NSW's Legal Eagle website. Autumn 1997. Includes suggested discussion questions, class research questions, and other student activities.

Free Speech and the Constitution

Author unknown. Legal Briefing No. 1, 14 April 1993. At the Australian Government Solicitor's website. A summary by the AGS of the results of Australian Capital Television Pty Ltd v Commonwealth and Nationwide News Pty Ltd v Wills.

Free Speech Revisited: The Implications of Lange & Levy

• By Melinda Jones. Published 1997 in the Australian Journal of Human Rights.
• "The two free speech cases decided this year represent a retraction from the strong free speech position which had been assumed to emanate from the Constitution. The question, then, is what do these cases imply for freedom of speech in this country?"
• "Given the rise of racial and religious hatred and homophobic violence, support for the idea of freedom of speech could be viewed as support for the rights of the perpetrator's of hatred to harass, intimidate and discriminate through stereotyping, and the denial of the right of victims of hatred to a voice or even peace of mind."

The Implied Freedom of Political Communication and Disclosure of Government Information (87K)

By Richard Jolly. 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.

The Implied Freedom of Political Discussion--Its Impact on State Constitutions (101K)

By Gerard Carney. In Federal Law Review Vol. 23 No. 2 (1995). Stored at the archived copy of the Federal Law Review at the National Library of Australia.

Individual Rights, the High Court, & the Constitution (134K) (missing)

By Geoffrey Kennett. In The Melbourne University Law Review Vol. 19 No. 3 (1995).

Lange v. ABC: Still Dancing in the Streets?

Max Spry. A research note from the Department of the (Federal) Parliamentary Library.

Lange v ABC: the High Court rethinks the "constitutionalisation" of defamation law

By Sally Walker. At the website for Murdoch University's E Law journal, March 1998 issue.

Lange v Australian Broadcasting Commission: Its Effect in Defamation Code States

By Dr Des Butler. 1998. At the National Law Review site.

The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication (180K)

• By Adrienne Stone. In The Melbourne University Law Review Vol. 23 No. 3 (1999). Stored at AustLII's online archive.
• A look at the High Court's approach in the Lange Case where it "announced a more limited view of the freedom of political communication, under which the freedom is to be interpreted solely by reference to constitutional text and structure" in which the author argues "that this interpretive method is unsustainable."

One Vote One Value--An Implied Right Too Far? The High Court Decision in McGinty & Ors v State of Western Australia (1996)

By Susan Downing. A research note from the Department of the (Federal) Parliamentary Library

Political Discussion as a Defence to Defamation: Lange v Australian Broadcasting Commission

By Rupert Burns. In Vol. 3 (1997) of the High Court Review.

Political Freedom as an Outlaw: Republican Theory and Political Protest (158K)

• By Simon Bronitt and George Williams. Originally published in the Adelaide Law Review. At the ANU's Criminet website. (Note: this article is not about the Australian republic issue!)
• Using "perspectives from republican theory", the article "highlights the inadequacies of the existing regulatory framework and proposes that both the law and its enforcement must be refocused towards a new target--a republican conception of liberty (dominion) which values and promotes legitimate forms of political protest."
• "In Not Just Deserts: A Republican Theory of Criminal Justice, Braithwaite and Pettit envision a republican conception of freedom called 'dominion'. ... Dominion is a republican conception of liberty. Whereas the liberal conception of freedom is the freedom of an isolated atomistic individual, the republican conception of liberty is the freedom of a social world. Liberal freedom is objective and individualistic. Negative freedom for the liberal means the objective fact of individuals' being left alone by others. For the republican, however, freedom is defined socially and relationally. You only enjoy republican freedom--dominion--when you live in a social world that provides you with an intersubjective set of assurances of liberty."

"Righting" the Constitution without a Bill of Rights (148K)

By Peter Bailey. In Federal Law Review Vol. 23 No. 1 (1995). Stored at the archived copy of the Federal Law Review at the National Library of Australia.

The State of Play in the Constitutionally Implied Freedom of Political Discussion and Bans on Electoral Canvassing in Australia (61K)

By George Williams, barrister. A research paper from the Department of the (Federal) Parliamentary Library

Stolen Generations: The Kruger Action

By Lachlan Kennedy and Deborah Nance. A pre-verdict overview of the background to the Kruger case and an explanation of their arguments, which were based around an expansion of the High Court's doctrine of implied constitutional rights, to include such ones as "[f]reedom or immunity from removal without due process of law in the exercise of the judicial power of the Commonwealth" and "[f]reedom from laws authorising genocide". Published 1996 in the Indigenous Law Bulletin.

Taking Citizenship Too Seriously? Some Questions for the High Court

• By George Oppel. At the 1996 Culture & Citizenship Conference site at Griffith University
• "At the end of his book on the political role of the High Court, Brian Galligan made two predictions. His first prediction was that the court would begin to disengage from its old role of 'policing federalism' in preparation for 'a possible new function of interpreting an Australian Bill of Rights'. His second prediction was that if the court made such a move, it would need to develop 'an appropriate public language to explain itself'. Despite the fact that Australia is still without a codified Bill of Rights, both of Galligan's predictions have hit the mark."
• "In...the Political Advertising Case...by focusing on the question of parliamentary sovereignty, and qualifying it, the court has drawn attention to the disparity between parliament and big government; and at a more abstract level, between democracy as a theoretical ideal that is somehow reflected by our institutions, and democracy as just one political technology that exists in an always contingent relationship to others. Of course, once we start to think about democratic government from outside the framework of sovereignty, the High Court's proclamation of its own role as a custodian of the people's will becomes just as problematic as parliament's claim to that mantle."

"Tweedledum and Tweedledee 1,2,3,3" - The Albert Langer Story

No author given. A current issues brief from the Department of the (Federal) Parliamentary Library. Touches on implied constitutional rights.

What is political speech? Levy v. Victoria

By Max Spry. A research note from the Department of the (Federal) Parliamentary Library.

Inconsistency between State and Commonwealth Legislation (missing)

By Ian Connor. Federal constitutional law Study Guide (1996) from the Faculty of Law, Queensland University of Technology.

Constitutional Law in the United States and Australia: Finding Common Ground (140K)

• By William Rich. In the Washington University Law Journal, 1995. A comparison of the two. Historical roots, federalism, responsible government, freedom of speech, etc.
• "The 1992 Australian High Court decisions signalled a willingness to follow the same protective standards of free speech as the United States Supreme Court. In Australian Capital Television, the High Court rejected precedent from other nations which were obligated to protect speech interests, but had chosen to defer to government interests in regulating political advertising. Instead, the High Court followed the more restrictive approach developed by the United States Supreme Court in Buckley v. Valeo. ... It is important to add to this discussion an understanding of how rarely the United States Supreme Court relies upon the First Amendment to invalidate acts of Congress. The vast majority of Supreme Court opinions interpreting the First Amendment either apply to state or local government entities or interpret--but do not invalidate--the federal law. ... In a current collection of United States Supreme Court decisions which interpret the First Amendment only five out of a total of one hundred and fifty cases invalidated congressional statutes. At least four of those five decisions could have been based upon the Australian High Court's principle of "representative democracy."

Constitutional Modelling--A Case Study of the Relationship between Domestic Law and International Law (115K)

By Brian R. Opeskin (of Sydney University). Delivered to (and stored at the website for) The Fifth World Congress of the International Association of Constitutional Law: Constitutional, Universalism, and Democracy, Rotterdam, July 1999. Examines (within "the context of a specific case study": the "relationship between international law and domestic law") "the processes by which the constitutional law of selected states has been modelled on the constitutional law of others, as well as on the norms of international law."

Domestic Implementation of International Human Rights Norms

By Justice Michael Kirby. Delivered to a Conference on Implementing International Human Rights, 6 December 1997. At the High Court's website. ("The new relationship is coming...by the use of international human rights jurisprudence filling the gaps of the common law and helping to construe ambiguous legislation to conform with that law...as an interpretative principle to assist in the ascertainment of the meaning of national constitutions where they provide guarantees of fundamental rights and freedoms. It is an exciting and constructive time of legal creativity. But the ultimate question is whether judges and other lawyers, trained until now to think strictly in jurisdictional terms, can adapt their minds to a new way of thinking that is harmonious to the realities of the world about them.")

The Erosion of National Sovereignty

• By Sir Harry Gibbs. Address to the Samuel Griffith Society in November 2000.
• "Jonathan Swift told the story of an island on which there was a spring whose water, when tasted, drove men mad. The water was so attractive that everyone drank it, except for one philosopher who was too wise to do so. In the end, however, the philosopher could not bear to be the only sane person left on the island and he too drank the water. Swift's point was that even the wisest person cannot free himself from the delusions of his time. The truth illustrated by that fable seems to me to provide as good an explanation as any for the fact that so many nations have bound themselves to conduct their internal affairs according to rules expressed in terms of broad generality, particularly when the meaning and effect of these rules are to be determined by committees constituted by people of no particular qualifications, none of whom will necessarily be representative of the nation affected by the determination, and some of whom may be chosen from nations whose practices and culture are regarded as inferior or abhorrent."

The Growing Impact of International Law on Australian Domestic Law (Option 1)--Implications for the Procedures of Ratification and Parliamentary Scrutiny

• By Justice Michael Kirby. Dated 6 March 1995. At the Justice Kirby's Papers website.
• "The external affairs power in the Australian constitution appears, both by express terms and by its location in the document, are an element of a constitution which is Federal in its basic character. Although the grant of power is large indeed, it is not uncontrolled. It is the function of successive Parliaments and of the High Court, to chart the boundaries of the power in new circumstances. Amongst the new circumstances are the growing sense of national identity of Australians, the changing role of Australia in its region and in the world, the changing features of international law and the role of the United Nations and other international or regional bodies."

The Growing Impact of International Law on Australian Domestic Law (Option 2)--Implications for the Procedures of Ratification and Parliamentary Scrutiny

• By Justice Michael Kirby. Dated 3 November 1994. At the Justice Kirby's Papers website.
• "The notion that Tasmania's democratically elected Parliament should have the right to over-ride fundamental rights, globally declared and relevantly held applicable, begs an important question. It would have been preferable for the people of Tasmania, through their Parliament, to have accepted the justice of repealing the sections of the Tasmanian Criminal Code which threatened to punish, and which stigmatised Mr Toonen, and other homosexual and bisexual men. ... But Tasmania has an unusual electoral system. The prospect of a change of mind in the Upper House seemed remote, at least in the short term. Australia's international obligations have been declared. It was either to ignore the declaration and justify it by reference to its constitution and politics--or it was obliged to act to fulfil the duty it had accepted. The democratic argument, and the complaint about loss of 'sovereignty' have an undoubted appeal. But I think it is increasingly recognised that democracy is not simple majoritarian votes. Democracy, as it is now practised, is a system of government which accords power to persons elected by the majority of citizens but upon the condition that they will respect the fundamental rights and dignity of minorities."

The Growing Rapprochment Between International Law and National Law

By Justice Michael Kirby. An essay to honour His Excellency Judge C J Weeramantry. At the High Court's website.

Human Rights Protection Begins at Home

• By David Flint. 15 November 2000. An article first published in The Australian Financial Review on 12 September 2000. At the OnLine Opinion discussion site. Touches briefly on constitutional matters. Human rights and the "panoply" of UN treaties.
• "UN human rights treaties were originally attempts to agree on internationally accepted standards, those already in existence in the world's leading democracies. These, of course, include Australia, a founder member and one who has done more to fight tyranny than most. More recently, some have gone further, and include, at times, the agendas of particular lobbies which are unable to have them accepted domestically through the democratic process. In other words, if the people will not accept your agenda, get it in through the back door."

The Internationalisation of Australian Law

• By former Chief Justice Sir Gerard Brennan. Delivered at the launch of the Sydney Law Review, 27 July 1995. At the High Court's website. Touches on the constitutional aspects.
• "...nonetheless, the possible embarrassment of having an advisory opinion by an international tribunal and a binding decision by a domestic tribunal is one which must be faced. It was faced, if you remember, in this country in the Queen of Queensland Case where the Queensland Parliament had legislated to confer advisory jurisdiction on the Privy Council with respect, inter alia, to inter se matters arising under the federal Constitution. By section 74 of the Constitution, the High Court of Australia was given the final jurisdiction of determining inter se matters under our Constitution for the purposes of our domestic law. The Queen of Queensland Case resulted in the invalidation of the Queensland Act as some inconsistency was found to exist between section 74 and that Act."

Quasi-Incorporation of International Law in Australia: Broadcasting Standards, Cultural Sovereignty and International Trade (91K)

By Donald R. Rothwell. 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. Included here more for completeness sake than relevance to constitutional matters (which are only touched on briefly). Deals with a "review the High Court's decision in Project Blue Sky, the subsequent responses by the Australian Broadcasting Authority and the government, and assess the implications for the interpretation of statutes which make reference to international law obligations."

September 11 and International Law

• By Dr Stephen Hall. Paper presented to the Samuel Griffith Society in June 2002.
• "This coalition ['consisting mainly of international law academics, activists from numerous Non-Governmental Organisations (NGOs), international bureaucrats at institutions such as the United Nations and the European Union, national bureaucrats ensconced in agencies with social regulation functions, swathes of judicial officers in Western democracies, a relatively small number of elected politicians, and their journalistic cadre'] dreams of, and works for, the establishment of an order in which International Law assumes a quasi-constitutional form. It seeks to superimpose on States, and especially liberal democracies such as Australia, an additional layer of legal regulation which directs the achievement of certain social, economic and environmental goals. This emerging layer of regulation resembles constitutional law inasmuch as it is said to consist of rules and principles legally superior to 'lower' levels of national law, including national constitutional law, and to the extent that its scope ratione materiae lies within fields traditionally regarded as belonging to the domestic jurisdiction of States and subject to their exclusive national sovereignty. These international regulations prescribe legally mandatory standards, mainly in areas such as civil, political, economic, social and cultural arrangements, and the natural environment. Usually referred to as the 'new International Law', perhaps a better name would be 'Imperial International Law'."

Setting the Sovereignty Scene: Use and Abuse of the Treaty Power

• By John Stone. Paper presented to the Samuel Griffith Society in November 2000.
• "It was the President of this Society, the Rt Hon Sir Harry Gibbs, who said that the High Court's widening of the interpretation of the 'external affairs' power of the Constitution had now advanced so far that one could almost replace the two words 'external affairs' in s.51(xxix) by the single word 'anything'."

Treaties in Australian Law--Role of International Standards in Australian Courts

• By Justice Michael Kirby. Speech delivered 26 May 1995 at the Centre for International and Public Law, ANU. At the Justice Kirby's Papers website.
• "The power of a federal Supreme Court to strike down excessive laws and to measure of all laws against the standards of the Constitution as understood from time to time, ensure that such laws meet the requirements of constitutionality. Federal constitutions must themselves adapt to the world in which the federal state finds itself. This, indisputably, is a world of increasing interrelationships in matters of economics and of human rights. Judges, no more than legislatures and governments, can ignore this reality."