Discussion of Particular Issues (L-Z)
(See also: A-E and F-K) |
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| 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. |
Labour Law
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- Constitutional and other Constraints on State Governments seeking Labour Market Reform
- By Greg Craven. A paper delivered to the 10th Conference of the H R Nicholls Society in 1991. At the H.R. Nicholls site. Ranges widely, from the corporations and external affairs powers to federalism and to the High Court's retreat from literalism (in favour of what Professor Craven dubs "intentionalism": "the idea that you interpret the Constitution not according to the literal meaning but according to the intention of the founders").
- "The problem is I think that the High Court stuck with literalism but also stuck with the fact that it doesn't even apply literalism because it has this agenda underneath it. It is losing faith in its own interpretative method. Two new forces are starting to play themselves out and have been doing so since the Dams case, each going in the opposite direction."
- Constitutional Aspects of Deregulating the Labour Market
- By I.C.F. Spry, Q.C. A paper delivered to the inaugural conference of the H R Nicholls Society in 1986. At the H.R. Nicholls site.
- The Hancock Report: Last Hurrah for the System
- By G. O. Gutman. Paper delivered to the inaugural conference of the H R Nicholls Society in 1986. At the H.R. Nicholls site.
- "A major obstacle to reform here has long been seen in the provision of the Constitution which restricts Federal Parliament's power in industrial relations to 'conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State'. In recent years legal authorities have drawn attention to the existence of other constitutional powers especially the corporation power which might be employed so as to make Federal initiatives in the industrial relations field prevail over State legislation."
- Industrial Relations: A Management Responsibility!
- By Senator Fred Chaney. Paper delivered to a conference of the H R Nicholls Society in 1988. At the H.R. Nicholls site. Touches on constitutional matters.
- "Under the Constitution, there appears to be only two 'possible heads of power' which would allow [a Liberal/National] Opposition government to implement the opting out option for businesses with less than 50 employees. The first is the arbitration power, the second the corporation's power."
- In the Shadow of the Law
- By Geoffrey de Q. Walker. Paper delivered to a conference of the H R Nicholls Society in 1989. At the H.R. Nicholls site. This one could have been fitted into several slots. Industrial disputes, and in relation thereto: the rule of law, judicial activism, and other matters.
- "Inseparable from the privilege of independence is the judiciary's corresponding obligation of impartiality. The judge is given independence, with its accompanying insulation from the ordinary processes of feedback that affect other decision-makers, in order to enable him to be fearlessly impartial, so that he will not favour the ends of one party over those of another. Any notion that a judge should have, or may properly have, any kind of agenda for altering society is completely inconsistent with the obligation of impartiality, because sooner or later cases will come before the judge that in one way or another raise the issues on which he has private policy goals. ... there are certain high-profile judges who are fond of pointing out how essential judicial independence is for the rule of law, but who do not accept the concomitant duty of impartiality in this sense."
- Reflections of a Former Minister for Industrial Relations
- By Ian Viner QC. The keynote address to a conference of the H R Nicholls Society in 1988. At the H.R. Nicholls site. The reflections are (of course) on labour law and the arbitration system, but the author looks forward to what (in 1988) might be ("It would have been a significant step--a catalyst for rapid structural change towards producing the flexible labour market acknowledged by most commentators today as being required to make Australian industry really competitive with the world.") as well as back to what was. ("Almost without exception, every fundamental precept on which the new province of law and order was erected at the turn of the century has been whittled away--some might say brutalised and demolished--to the point that the Australian system of conciliation and arbitration which so many today declare to be unique and inviolate is incapable of recognition as the system which Henry Bournes Higgins himself voted to include in the Constitution.")
- Some of the reflections would be of interest to the history of the development of the Federal Constitution ("...the votes of two men 90 years ago changed the course of Australian constitutional law and the politics of the new nation through inclusion of the Commonwealth's industrial power in placitum 35 of section 51 of the Constitution. ... One of those two men...was Henry Bournes Higgins, the father of comparative wage justice and author of the Harvester Judgment, who saw in the system of compulsory arbitration in which strikes and lockouts were outlawed a new province of law and order.")
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Legal Systems
| In the sense of the systems of Common Law & Civil Law. |
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- Common v. Continental: A Reaction to Mr. Evan Whitton's 1998 Murdoch Law School Address
- By Jean-Marc Ba•ssus. At the website for Murdoch University's E Law journal, December 1998 issue.
- "If I may summarize the main idea of Mr. Whitton's address, I would state that the author considers that the Common Law system of procedure has an in-built flaw, where injustice and enormous costs are combined to achieve a corrupt legal system, which nowadays is according to him, in a 'terminal' condition."
- "... the average net income of a reasonably successful French lawyer is approximately US$90,000, whereas one fifth of the Parisian firms are currently on the verge of bankruptcy. So, whereas I would concur with Mr. Whitton that common-law proceedings generate excessive costs, I would also suggest that French lawyers are inadequately paid for their services. The result is 'corner-cutting' work and an ever increasing volume of litigation 'flogged to death', whilst the competition becomes more and more a cutthroat one."
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Members of Parliament: Qualifications
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- Candidacy of Local Councillors for Federal Office
- By Dr Ian Holland. 3 December 2002. Discusses briefly issues "highlighted by a recent attempt by the Queensland Government to require local councillors to vacate office if seeking election to federal Parliament". A research note from the Department of the (Federal) Parliamentary Library.
- Candidates, Members and the Constitution (320K)
- By Bob Bennett. 28 May 2002. Qualifications & disqualifications of federal MPs. A research paper from the Department of the (Federal) Parliamentary Library. Part of "The Vision in Hindsight: Parliament and the Constitution" collection of essays. Includes as one of the appendices a listing of relevant (federal) constitutional provisions and their applicable court cases and parliamentary debates.
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Members of Parliament: Remuneration
(see also Section 48 in Discussion of Particular Provisions)
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- Parliamentary Remuneration (1)
- By Leanne Manthorpe. 4 September 2002. Focusses on salary, with a more brief look at non-salary entitlements. Includes tables of ministerial salaries & those for State & Territory MPs. An E-Brief from the Department of the (Federal) Parliamentary Library.
- Remuneration of Members of the Parliament of
Australia (323K)
- By Margaret Healy and Geoff Winter. 27 June 2000. A research paper from the Department of the (Federal) Parliamentary Library. Touches on the constitutional provisions relating to MP and ministerial remuneration. Note: two older versions of this paper are also available:
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Native Rights
| See also Aboriginal Treaty above and the Native Title and Race subsections below; also Section 51(xxvi) in Discussion of Particular Provisions. In addition, the Northern Territory part of the New States subsection contains material connected with Aboriginal rights under the draft NT constitution. |
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- Aboriginal Reconciliation and the Constitution?
- Compiled by Jane Innes. A "subject overview". On the Millennium Dilemma site at the University of Wollongong. Short viewpoints from assorted eminent citizens, from Noel Pearson to Tony Blackshield (but sometimes more than one from the same person).
- From Dispossession to Reconciliation (187K)
- By John Gardiner-Garden. Research paper 27, 1998-9 from the Department of the (Federal) Parliamentary Library. Reconciliation, 1967 referendum, preambles, aboriginal treaties, and other related matters. Assorted constitutional matters touched on.
- Indigenous Peoples and the Constitution
- Lecture notes for an ungraduate law course taught by Ken Parish at Northern Territory University. Summarises chapter 4 of Tony Blackshield & George Williams's Australian Constitutional Law: Theory, Practice & Materials (2nd edition, 1998) "with updating cases, commentary and links". Covers (inter alia) the race power, ss41 & 25, native title, the Hindmarsh Island case, and Aboriginal sovereignty.
- Indigenous Rights and the Constitution
- By Barbara Flick. Paper presented to the Women's Constitutional Convention in January 1998. ("Constitutional reform must recognise that indigenous peoples have group rights and it must provide Constitution[al] and on-going protection for those rights. By group rights, I mean rights like rights to territory such as Native Title and the right to self-determination. Other key categories are cultural rights and intellectual property rights. ... An interpretation of rights limited to the rights of the individual is inadequate to indigenous peoples.")
- Kartinyeri v The Commonwealth
- Summary of the High Court case. Published June 1998 in the Australian Indigenous Law Reporter.
- Kruger and Bray and the Common Law
- By Tony Buti. An overview of Kruger v The Commonwealth and Bray v The Commonwealth. Published 1998 in the University of NSW Law Journal.
- Erratum note: the reference at one point in this paper to "s166 of the Constitution" is presumably to s116.
- The Parliament of the Commonwealth of Australia and Indigenous Peoples 1901-1967 (303K)
- By John Summers. 31 October 2000. Exclusionary legislation, assimilation, the 1967 referendum, and other 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.
- The Protection of Indigenous Rights: Contemporary Canadian Comparisons
- By Larissa Behrendt. A research paper from the Department of the (Federal) Parliamentary Library. Includes a look at various constitutional aspects.
- "The term 'Aboriginal peoples' in Canada includes First Nations (formerly referred to as 'Indians'), the Inuit (formerly referred to as 'Eskimos'), and the Metis (the Aboriginal population that merged with the French and Scottish colonists)."
- "The Canadian experience shows that a specific Constitutional protection can offer safeguards for Indigenous rights, ensuring that they are not eroded by the whims of the legislature, but instead balanced against 'justified' Government purposes including development and environmental initiatives."
- Should Parliament Enact the Hindmarsh Island Bill 1996?
- By Jennifer Clarke. Argues that the Bill "probably is constitutional" but that "it adds nothing to the 'security' of the bridge proposal." Touches on several constitutional matters, including the race power and s116. Published 1997 in the Indigenous Law Bulletin.
- Should the Constitution expressly recognise the Indigenous Peoples of Australia?
- Issues paper from the Constitutional Centenary Foundation.
- The Stolen Generations: In the Aftermath of Kruger and Bray
- By Michael D. Schaefer. An overview of Kruger v The Commonwealth and Bray v The Commonwealth, together with reflections on their implications. Published 1998 in the University of NSW Law Journal.
- "Whilst the niceties of constitutional law may prevent assessment of the gritty reality behind the Commonwealth practice of child removal and detention, no doubt the trial of fact in the Stolen Generations common law claims will reveal the shocking effect of such a practice on innocent Australian children, their families and communities. So be it."
- Two Rules of Law
- By Sir Harry Gibbs. Paper presented to the Samuel Griffith Society in October 1997. Native title, Aboriginal customary law, and the courts. ("It is neither necessary, nor desirable, to apply to the Aboriginal peoples the rules of their customary law rather than the general law. National unity and the principle of equality before the law should not be sacrificed to sectional interests, and in any case the economic and social position of the Aboriginal peoples is not likely to be improved by doing so.")
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Native Title
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- The Aetiology of Mabo
- By Geoffrey Partington. Paper presented to the Samuel Griffith Society in 1994. Note: "Aetiology is the study of causes".
- Agreeing on a Document: Learning from the High Court's Native Title Decision
- By the Council for Aboriginal Reconciliation. Part of the Reconciliation and Social Justice Library.
- An Aboriginal perspective on the native title cases. ("There are many political lessons to learn from the recent native title discussion culminating in the Native Title Act 1993 (Cwlth).")
- Amending the Native Title Act
- By John Forbes. Paper presented to the Samuel Griffith Society in March 1997. Touches briefly on constitutional issues.
- Asking The Minerals Question: Rights In Minerals As An Incident of Native Title (229K)
- By Gary D Meyers, Chlo‘ M Piper, and Hilary E Rumley. Argues "that native title rights in minerals, including rights to commercially exploit those minerals, may exist". Published April 1997 in the Australian Indigenous Law Reporter.
- Compensation for Native Title: The Theory and the Reality
- By Chris Humphry. At the website for Murdoch University's E Law journal, March 1998 issue. Touches briefly on some constitutional aspects.
- Constitutional Validity of the Commonwealth's Native Title Regime Confirmed: The State of Western Australia v the Commonwealth; The Wororra Peoples v The Commonwealth; Teddy Biljabu v The Commonwealth
- By Sarah Pritchard. At the website for Murdoch University's E Law journal, April 1995 issue. A comment on the cases named in the title. Note: this version is in plain text (as opposed to HTML).
- Demystifying Native Title
- By Peter van Hattem. At the website for Murdoch University's E Law journal, September 1997 issue. Touches several times (though without much explanation) on the constitutional problems with the Native Title Tribunals. ("Under the Commonwealth Constitution, the provisions of the Native Title Act which purport to empower the National Native Title Tribunal to make determinations in relation to unopposed claims are probably invalid.")
- Extinguishment of Native Title: The High Court and American Law
- By Kent McNeil. Published October 1997 in the Australian Indigenous Law Reporter.
- "Clearly...the High Court's position on extinguishment by inconsistent grant articulated in Mabo and Wik is in direct conflict with American law on Indian title. However, as the United States usually purchased Indian lands by treaty before granting them, in the present century the American rule that grants are subject to unextinguished Indian title has not created large scale uncertainty for non-Indian land titles. The situation in Australia is obviously very different. There can be no doubt that the High Court's position on extinguishment has been influenced by the fact that virtually all private, non-native land titles in Australia would be vulnerable if grants did not extinguish or suspend native title to the extent that the two were inconsistent. So maybe it is time to acknowledge that the High Court's position on extinguishment is a policy-driven way of avoiding that result, rather than pretend that it is supported by legal doctrine."
- The High Court in Mabo
- By S.E.K. Hulme. Paper presented to the Samuel Griffith Society in 1993.
- In the Wake of Wik/The Effect on High Court Judges
- Suzanna Lobez talks (after a session with Federal Attorney-General Daryl Williams on the matter of "open season" on High Court judges) with Bryan Keon-Cohen QC and Jim Macken, a former judge, on pastoral leases in the wake of Wik. 24 August 1999. On the ABC's Radio National's The Law Report.
- "Daryl Williams: '...it seems to me that if the third arm of government is truly going to be independent of the other arms of government, then the judiciary should speak for itself. And I've told the Judges that. I've told them that in general terms, I don't regard the Attorney-General as being the defender of the judiciary, and I think the judiciary should develop mechanisms themselves in contributing to community debate. There are difficulties: the Courts, for example, have to be very careful not to comment publicly on an issue that might end up being up for decision before the Court. But there are ways and means, and I've commented on that, on other occasions.'"
- "Susanna Lobez: 'The Wik decision says rights of pastoralists and Aborigines can coexist, the land can be shared, but that where those right conflict, the pastoralist's rights prevail. Well won't this cause disputes?' Bryan Keon-Cohen: 'Take a crisis point: water. Valuable resource and very rare in parts of Central Northern Australia. The law is, after Wik, the pastoralist can fence that water-hole, use it for his cattle, electrify the fence with a million volts if he wants to, and watch the Aboriginal people perish of thirst outside that fence. His cattle have more rights than the Native Title holder under their traditional rights, to go and drink that water.'"
- Is Native Title a Proprietary Right?
- By Janice Gray. At the website for ANU's E Law journal, September 2002 issue. Includes discussion of s51(xxxi) issues.
- "Unlike other forms of title, native title has only been recognized by the common law since 1992 when the landmark case Mabo v Queensland (No 2) was handed down. Owing both to the brevity of its existence and the complexity of the concepts underpinning it, there is still debate and a degree of uncertainty surrounding how native title is most appropriately characterized."
- Mabo and Federalism: The Prospect of an Indigenous Peoples' Treaty
- By Bill Hassell. Paper presented to the Samuel Griffith Society in 1994.
- The Mabo Litigation: A Personal and Procedural Account (270K)
- By B. A. Keon-Cohen. In The Melbourne University Law Review Vol. 24 No. 3 (2000). Stored at AustLII's online archive.
- "...the brutal reality [is] that all governments, of whatever political persuasion, wanted Mabo [No 2] like a hole in the head. After 200 years of governments failing dismally to deliver a national land rights response, the High Court in 1992 stepped in and, exercising its proper constitutional function, dramatically filled the gap. The reluctant national response has always baffled me. But for Mabo [No 1], international commitments to racial equality, together with the 'just terms' protection entrenched in the Constitution with the resulting national bill for compulsory acquisition of native title, politicians of all persuasions would have denied these valuable new property rights with little more than pious platitudes about the need for economic development."
- Murrandoo Yanner, His Crocodiles, the High Court, and the Native Title Implications
- By A/Professor Brian Horrigan & Simon Young. October 1999. At the OnLine Opinion discussion site. Looks at Yanner v Eaton and the potential implications.
- "Immediately after the High Court's Yanner decision, one prominent native title lawyer active in the corporate and resources sectors declared that the High Court's decision was specific to wildlife and that there was 'no open season on minerals'. Strictly speaking, that is right. Yet, once an Act stating that, with limited exceptions, 'all fauna...is the property of the Crown' can be interpreted by the High Court as conferring something less than full and exclusive ownership of the resource upon the Crown, other Crown ownership regimes must at least be investigated in light of the Yanner decision."
- Native Title
- Author unknown. Legal Briefing No. 5, 30 July 1993. At the Australian Government Solicitor's website. A summary by the AGS of the results of Mabo v Queensland.
- Native Title Act 1993
- Author unknown. Legal Briefing No. 11, 29 April 1994. At the Australian Government Solicitor's website. A summary by the AGS, and a discussion of some of its implications.
- Native Title Act Case
- Author unknown. Legal Briefing No. 20, 29 August 1995. At the Australian Government Solicitor's website. The AGS looks at Western Australia v Commonwealth, including the High Court's view expressed in that case of s53. Plus a look at the "practical consequences".
- Native Title: A Path to Sovereignty
- By Dr Stephen Davis. Paper presented to the Samuel Griffith Society in March 1997. National sovereignty, the UN, and native title. Includes four appendices. ("Today, the world comprises a collection of nation states who interact with each other as legal entities, and who are legally sovereign within their respective jurisdictions. We can readily observe an ongoing process in which the sovereignty of the nation states is diminished and political power is transferred from those states to what is agreeably described as the 'international community'.")
- An Overview of Wik
- By Daniel Gal. 1997. Published in the UNSW Law Journal Forum's thematic issue on "Wik: The Aftermath and Implications". (Another copy here on AustLII.) No constitutional material as such, but a nice summary of the Wik judgment and some of its implications.
- Pastoral Leases and Native Title: the Wik Case
- By Jennifer Norberry. A research note from the Department of the (Federal) Parliamentary Library
- Includes background, "What is Native Title and How is it Extinguished?", a summary of the judgments, "Why is the Wik Case Important?", and "What the High Court did not Decide".
- The Prime Minister's Ten Point Plan
- By Dr John Forbes. Paper presented to the Samuel Griffith Society in October 1997. ("Native title is not a child of the federal Constitution or of any Commonwealth statute. Native title parades as common law, and the High Court has recently and expressly declared that the common law cannot be turned into a law of the Commonwealth. (In a moment of delightful unconscious irony, the Court explained that this would improperly 'confer legislative power on the courts'!)")
- Proving Native Title
- By Dr John Forbes. Paper presented to the Samuel Griffith Society in 1994.
- The Racial Discrimination Act 1975 and Mabo
- By Dr Colin Howard. Paper presented to the Samuel Griffith Society in 1993.
- Racial Discrimination And Unilateral Extinguishment Of Native Title (208K)
- By Kent McNeil. Published March 1996 in the Australian Indigenous Law Reporter.
- Revisiting Mabo: Time for the Streaker's Defence?
- By John Forbes. Paper presented to the Samuel Griffith Society in 1996.
- The Second Native Title Case
- By Dr Colin Howard. Paper presented to the Samuel Griffith Society in 1995.
- Discusses Western Australia v. Commonwealth (1995).
- Includes a (brief) discussion of s12 of the Native Title Act, struck down by the court (in which the Federal Parliament appeared to be purporting to give the common law with respect to native title "the force of a law of the Commonwealth").
- The Social and Economic Realities of Mabo in the Federal Electorate of Kalgoorlie
- By Graeme Campbell MP. Paper presented to the Samuel Griffith Society in 1993.
- Western Australia and Native Title: Western Australia v The Commonwealth; Wororra Peoples v Western Australia; Biljabu v Western Australia (1995)
- By Prue Vines. In the Australian Journal of Human Rights, Vol. 2, No. 1, 1995. Touches on various constitutional matters, especially the race power.
- "The Native Title Act protects native title subject to the stated exceptions in the Act. It thus removes the common law defeasibility of native title. The exceptions to the protection of native title include past and future acts. Western Australia argued that the Native Title Act was not supported by the race power. In order to use the race power, it must be 'deemed necessary' that 'special laws' be made for the 'people of any race', these being the terms of s51(xxvi) of the Constitution. That is, there must be special needs or threats to the people which make the law necessary. This judgment is for Parliament to make. The Court said 'the removal of the common law general defeasibility of title...is sufficient to demonstrate that the Parliament could properly have deemed that Act to be "necessary"'."
- The Wik People v The State of Queensland
- Author unknown. Legal Briefing No. 32, 20 May 1997. At the Australian Government Solicitor's website. A summary by the AGS of the case in question, and a discussion of some of its implications.
- Wik, Worry and Woe in the Western Division [of NSW] (access restricted)
- By Ian Benecke. In the Law Society Journal (NSW), May 1997. Native title & the pastoralists of NSW. Touches very briefly on constitutional matters.
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New States
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- Statehood for the Northern Territory
- Aboriginal rights and the draft NT Constitution
- By Annie Keely. Published 1997 in the Indigenous Law Bulletin.
- A Draft Constitution for the New State of the Northern Territory
- Text of (plus some commentary by Martin Flynn) about the resolutions from the Northern Territory Constitutional Convention March-April 1998. Published September 1998 in the Australian Indigenous Law Reporter.
- Note that this is not the entire draft but only mainly those parts concerned with Aboriginal matters. Also note that the text differs in various respects from the 1996 final draft.
- The Kalkaringi Statement
- By the Constitutional Convention of the Combined Aboriginal Nations of Central Australia, August 1998. An "Aboriginal response to the issues of Statehood, Constitutional development and governance in the Northern Territory". Published December 1998 in the Australian Indigenous Law Reporter. (Another copy can be found here in a 1998 issue of the Indigenous Law Bulletin.)
- Recent Constitutional Developments in the Northern Territory
- About the Kalkaringi Convention. Published 1998 in the Indigenous Law Bulletin.
- Should the Northern Territory Become a State?
- Issues paper from the Constitutional Centenary Foundation.
- Statehood Convention
- Met 26 March-9 April 1998. Links from the above page include the following:
- Statehood for New Zealand
- The New Zealand Connection
- By Professor Bob Catley. Paper presented to the Samuel Griffith Society in August/September 2001. Reflections on New Zealand and its joining the Commonwealth as the seventh State.
- "A few weeks ago I sat ruminating with a very influential New Zealander. He mused that the Romans had controlled Britain for 400 years but that, when they left, within a short time little was left of them, other than ruins. This may be a parable applicable to New Zealand. The British abandoned New Zealand to its fate and joined the European Union in 1973. It is now rapidly becoming a Pacific country."
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Parliamentary Privilege(s)
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- Parliamentary Privilege and the Admissability of Evidence (98K)
- By Enid Campbell. 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. Article 9 of the (English) Bill of Rights 1689 ("That the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament."), and Commonwealth parliamentary privilege under the Parliamentary Privileges Act 1987. In particular, includes an extensive discussion of the constitutionality of s16(3) of that Act.
- Parliamentary Privileges (108K)
- By Professor Enid Campbell. A look at the evolution of the powers, privileges, & immunities of the Federal Parliament. Punitive powers, freedom of debate, parliamentary investigations, and other 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.
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Parliamentary Supremacy
(aka Parliamentary Sovereignty)
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- Constitutional Brokerage in Australia: Constitutions and the Doctrines of Parliamentary Supremacy and the Rule of Law
- By David Kinley. In Federal Law Review Vol. 22 No. 2 (1995).
- Sovereignty in British Legal Doctrine (253K)
- By Joaquin Varela-Suanzes. Translator: Manuel Calzada, Editor of E Law. At the website for Murdoch University's E Law journal, September 1999 issue. A translation of an article (penned by a professor of the Universidad de Oviedo in Spain) giving an overview of the doctrine and its history, from the "Lower Middle Ages", through 1688, Locke, Blackstone, Austin, and others, to Dicey (and on to some of his critics).
- The Struggle for Simplicity: Lord Cooke and Fundamental Rights (172K)
- By Justice Michael Kirby. New Zealand Legal Research Foundation, 4-5 April 1997. At the High Court's website. The "deep rights" doctrine of Lord Cooke (essentially a resurrection of Coke's views as expressed in the Dr Bonham Case: Cooke: "'...it is arguable that some common law rights may go so deep that even Parliament cannot be accepted by the Courts to have destroyed them.'") and Kirby's views thereon ("So let us have no more talk of 'deep rights' - unless they are in the constitution already or unless citizens can persuade Parliaments, and themselves to put such rights in a Bill of Rights which has the stamp of the people's legitimacy.")
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Parliamentary Terms
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- Four-year Terms for the House of Representatives (126K)
- By Scott Bennett. 29 August 2000. A look at the case for the title subject. Includes an examination of what to do about Senate terms should 4-year House of Representatives ones come to pass. A research paper from the Department of the (Federal) Parliamentary Library. Part of "The Vision in Hindsight: Parliament and the Constitution" collection of essays.
- "...some Australian opinion-leaders believe the number of Commonwealth elections needs to be reduced, on the grounds of cost and governmental and economic stability".
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Preamble
(new/replacement)
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See Discussion of Particular Provisions. Also my The Republic Issue: A Guide webpage.
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The Queen
| See also The Governor-General above and also my Australian Republic Issue: A Guide. |
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- Black v ChrŽtien: Suing a Minister of the Crown for Abuse of Power, Misfeasance in Public Office and Negligence
- By Noel Cox. At the website for ANU's E Law journal, September 2002 issue. Black v ChrŽtien was a Canadian case, however the paper does deal (in part) with one issue not without some relevance to Australian constitutional law given ruling by some of the High Court in Sue v Hill that the Crown is not indivisible but can be divided into Australian and British Crowns: "to what extent can the British and Canadian Crowns be disentangled, given the commonality of person and the historic legal continuity of the two constitutions?"
- "Monarchy concentrates legal authority and power in one person, even where symbolic concentration alone remains. This was the logic underpinning the belief in the eighteenth and nineteenth centuries in the unity of the Crown. The imperial Crown was one and indivisible. 'The colonies formed one realm with the United Kingdom', the whole being under the sovereignty of the Crown. This sovereignty was exercised on the advice of imperial Ministers."
- The Role of the Sovereign: The United Kingdom and Australia Distinguished
- By John Paul. Paper presented to the Samuel Griffith Society in August/September 2001.
- "One recurring theme in our constitutional history has been the interaction of political forces in such a way as to require the Crown's representatives to invoke prerogative powers, which are still extant in Britain but which for various reasons have not been invoked to anything like the same degree as in Australia. In 1932 Air Vice-Marshal Sir Philip Game, as Governor of New South Wales, dismissed the Premier, J T Lang. An Australian Prime Minister, Edward Gough Whitlam, was dismissed from office as recently as 1975, and the prerogative, which in Australia's case was a statutory power, was exercised by, and indeed was exercisable only by, the Governor-General, in this case Sir John Kerr. By contrast, the last time a British monarch invoked that prerogative was in 1783--five years before the foundation of Australia--when King George III treated the House of Lords' rejection of the East India Bill as a pretext for dismissing the Fox-North coalition. The King then appointed William Pitt the Younger who, but for a break between 1801 and 1804, held office from 1783 until his death in 1806."
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Race
| See also the Aboriginal Treaty, Native Rights, and Native Title subsections above; also Section 51(xxvi) in Discussion of Particular Provisions. |
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- Constitutional Law: Race to the Top (access restricted)
- By Michael Legg. In the Law Society Journal (NSW), March 1999. The race debate, the race power (and in particular the issue of whether it allows beneficial laws only), Hindmarsh Island, and the High Court.
- "While the High Court has always been called on to decide political and social questions and as a result make law, it has, more recently, become more policy oriented in its approach. As part of this evolution, the Court has become more concerned with rights through methods of interpretation that involve greater judicial activism, rely on notions of contemporary community values and recognition of the structure and nature of our form of government."
- The Definition of Aboriginality
- By John Gardiner-Garden. 5 December 2000. Research note at the Department of the (Federal) Parliamentary Library site. Touches on constitutional matters.
- Empowering Victims Of Racism By Outlawing Spirit-Murder (101K)
- By Melinda Jones. In the Australian Journal of Human Rights, Vol. 1, No. 1, 1994. Includes a discussion of the "constitutional complications".
- "In Australia the debate is not automatically and unnaturally skewed in favour of the perpetrator by a formal Bill of Rights. We have no history of rugged individualism; we have no illusions as a society that government is a neutral umpire of a level playing field. We have always accepted the importance of government intervention--in provision of services and in the leadership on morals. ... However, the High Court has changed the nature of the debate in some recent cases where it has found an implied guarantee of freedom of political speech and communication in the Constitution. The question that therefore remains to be addressed is whether the implied freedom in the Constitution will be interpreted to protect victims of hatred or whether it will be used to invalidate laws which outlaw racist speech."
- Genocide, Human Rights Implementation and the Relationship between International and Domestic Law: Nulyarimma v Thompson (142K)
- By Andrew D. Mitchell. In The Melbourne University Law Review Vol. 24 No. 1 (2000). Touches occasionally and briefly on constitutional matters, particularly at the end when it argues for a "long-term objective" of the constitutional entrenchment of rights protected by the Genocide Convention. Stored at AustLII's online archive.
- "[E]ven if his Honour had found genocide was a crime under Australian law, and that it had been made out on the facts alleged, relief would not have been granted. This article will focus on certain obstacles identified by Merkel J...in relation to granting mandamus to compel the issue of warrants for the arrest of the politicians involved in the formulation of the Ten Point Plan. The obstacles identified by Merkel J involved the protection given to members of Parliament in relation to the formulation of legislative policy, and the implied constitutional freedom of political communication."
- How to keep a Secret--building bridges between two "laws"
- By Nathan Hancock. Hindmarsh Bridge and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. Touches on the race power (and also, though purely incidently, on the external affairs power in respect of another Heritage Act, the World Heritage Act). Published 1995 in the Indigenous Law Bulletin.
- Race, The Constitution and Reconciliation
- By Frank Brennan. Part of the Reconciliation and Social Justice Library.
- Problems In Drafting Legislation Against Racist Activities
- By Tamsin Solomon. In the Australian Journal of Human Rights, Vol. 1, No. 1, 1994. Includes a discussion of the constitutional limitations on Australian racial vilification legislation.
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| The Republic |
Dealt with on a separate webpage. |
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Representation
(in Parliament)
(see also Elections and Electoral Systems above)
|
- Challenges to the Concept and Practice of Political Representation in Australia
- Dr Gianni Zappala. A research paper at the Federal Parliamentary Library site.
- "Political representation has become increasingly complex and contentious, in part, due to the success of social movements in raising demands for the fairer representation of 'groups' or 'identities' that were previously discounted, such as those based on gender, race, ethnicity, sexuality and disability. The rise of the new social movements has gone hand in hand with several other complementary trends that have posed ever greater challenges to traditional notions of political representation in Australia. For instance, the decline of voter identification with the
major parties, the rise of minor parties and independents and the decline in the importance of geography to political representation."
- Reserved seats for Indigenous Australians?
- By Johanna Sutherland and Wynne Russell. Published 1997 in the Indigenous Law Bulletin.
- "Electoral principles such as oneÐvote, oneÐvalue are less central to debates about political representation and Indigenous Australians than principles such as selfÐdetermination, empowerment and effective representation of electorates' interests. But if Indigenous constituents have diverse party affiliations and inclinations, these are unlikely to be met through a small number of reserved seats. On the other hand, the symbolic and media power of Indigenous MPs would be considerable."
- Note: both the article & its index entry on the website use "Inndigenous". On the assumption that this is an error, I have corrected it to "Indigenous".
- Reserved Seats in Parliament for Indigenous Peoples--the Maori Example
- By Georgina McGill. A research note from the Department of the (Federal) Parliamentary Library.
- The Shape of Representative Democracy
- By Chief Justice Murray Gleeson. 9th Lucinda Lecture, Monash University, 21 July 2001. At the High Court's website. Reflections on representative democracy under the Commonwealth Constitution and High Court decision relating thereto.
- Territory Representation in the Commonwealth Parliament
- By Margaret Healy. 5 September 2000. Research note at the Department of the (Federal) Parliamentary Library site. An overview. Touches on constitutional matters.
- "Casual vacancies in Territory Senate representation were originally filled by direct election, but the procedure was subsequently changed. Any vacancy is now filled by the Legislative Assembly of the Territory."
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Reserve Powers of the Governor-General
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- The Reserve Powers of the Governor-General
- By Susan Downing. A January 1998 (the note itself gives "1997", but this is clearly an error) research note from the Department of the (Federal) Parliamentary Library.
- A brief statement and discussion, with particular reference to their use in 1975 and the republic issue.
- "The Constitution provides the Governor-General with a number of express powers such as the command of the defence forces and the power to appoint judges to the High Court. These seemingly far-reaching powers are in practice tempered by the convention that the Governor-General exercises them in accordance with Ministerial advice ('the principle of responsible government'). However, there are powers that the Governor-General may, in some situations, exercise without Ministerial advice or even contrary to Ministerial advice. These 'discretionary powers' are known as the reserve powers."
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Responsible Government
| On reflection, I have added to this section those papers which deal with "Responsible Government" in a broader or more loose sense than I originally intended. That is, those which deal with (or tend to speak of) "Parliamentary Democracy", but have more to do with the "responsible government" side than the "representative" aspects (those papers which deal more with the latter will be filed elsewhere). |
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- Australian Parliamentary Democracy After a Century: What Gains, What Losses? (156K)
- By Elaine Thompson. 6 June 2000. A research paper from the Department of the (Federal) Parliamentary Library. Part of "The Vision in Hindsight: Parliament and the Constitution" collection of essays.
- One of the author's conclusions is curious, bearing in mind which chamber has the formal role of actually holding ministers and ministries "accountable" under the doctrine of responsible government: "By the end of the 20th century, the Australian Parliament is in an improved position to hold the Executive as a whole, and individual ministers, more accountable. Its power largely rests on the power of the Senate." Given the author's assessment of the other half of the federal parliamentary equation (see the quote below), presumably the operative word is "more".
- "The domination of Parliament by a disciplined bipolar party system meant that the House of Representatives came to be seen at worst as a theatre of meaningless ritual and at best as a institution under the foot of the Executive. Bagehot's description of the system of responsible government as a system which between elections functioned as an 'elected despotism' was reasonably accurate. While the Opposition could criticise Government policy, they could not force change."
- Democracy, Parliament, and Responsible Government (PDF) (91K)
- By Chandran Kukathas, with additional observations by David Lovell and William Maley. June 1990. Papers on Parliament: Collection No. 8.
- "[T]hinkers such as Montesquieu, James Madison, and Alexis de Tocqueville among numerous others...saw, and argued that, if the liberty of citizens was to be preserved what was of primary importance was the preservation of constitutional government."
- "What [John Stuart] Mill had recognised was that the involvement of the central power in all aspects of society could not help but compromise liberty, for the autonomy of the multitude of associations which go to make up society would be entirely lacking. This is something I think our universities are now discovering as government makes it increasingly plain that they are little more than departments of the administration to be harnessed to serve the national interest."
- Egan v. Willis and Egan v. Chadwick: Responsible Government and Parliamentary Privilege (204K)
- By Christos Mantziaris. 14 December 1999. A research paper from the Department of the (Federal) Parliamentary Library. Looks at how "Two important recent decisions [in the courts] stemming from events in the New South Wales Legislative Council may have broad reaching implications for the conduct of parliamentary affairs at both the State and Commonwealth levels." (The cases in question flowed from the refusal by a State Minister, an MLC, to table certain documents when requested by the Legislative Council.)
- Government in the ACT-a Shift from "Westminster"?
- By Scott Bennett. 15 August 2000. Research note at the Department of the (Federal) Parliamentary Library site. Explains "the constitutional and political factors that underlie a system of government that can be seen as an important variation on the 'Westminster' model".
- Interpreting Ministerial Directions to Statutory Corporations: What Does a Theory of Responsible Government Deliver? (169K)
- By Christos Mantziaris. 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.
- "Judges interpreting ministerial direction provisions have generally approached the task through conventional techniques, such as the literal and the purposive construction of the statute. But the increased judicial recognition of the system of responsible government prescribed by the Commonwealth Constitution has raised the possibility of a broader basis for interpretation. This paper assesses the merits of rival approaches to the requirement of responsible government in the conduct of the affairs of statutory corporations by reference both to their constitutional underpinnings and to their ability to facilitate historical changes in the Executive's accountability to Parliament."
- Ministerial Directions to Statutory Corporations
- Christos Mantziaris. A research paper from the Department of the (Federal) Parliamentary Library. Touches on constitutional issues, especially those arising out of the Lange v ABC case, including: "Is ministerial responsibility for a statutory corporation required by the Constitution?"
- Parliamentary Democracy in Australia
- By Sir Garfield Barwick. Paper presented to the Samuel Griffith Society in 1995.
- "The impact...of the party system is that the Parliament is virtually turned into a rubber stamp in the hands of the executive. Thus, whilst the party system may have provided some stability in government, it has on the other hand drastically altered the relationship of the Parliament to the executive and the control of its affairs by the community itself."
- "It would be quite fair to say that those liberties which were spoken of earlier--freedom of speech, of association, of movement, etc.--are far more secure under a Westminster system of parliamentary democracy than they are in the United States of America, where they are in the hands of and subject to the vagaries of the judiciary."
- Parliamentary Democracy in Australia: Some Supplemental Thoughts
- By Sir Garfield Barwick. Paper presented to the Samuel Griffith Society in 1996. Sir Garfield looks at the steps by which the authority of Parliament over the Executive might be restored.
- Power: Relations Between the Parliament and the Executive (106K)
- By Jim Chalmers and Dr Glyn Davis. 7 November 2000. On the Commonwealth Parliament, the Executive, and the "folly" of the founding fathers in not providing more explicitly for responsible government in the Constitution. 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 century on, it is clear the Executive has come to dominate the Commonwealth Parliament. This is the result of a development that postdates the Constitution, the rise of disciplined modern political parties. With party majorities secure, at least in the House of Representatives, the Parliament is made subordinate to the party-room of the governing Executive."
- "Though aware of the risk of 'party government', the constitutional founders underestimated the extent to which parties and, by extension the Executive, would dominate the Commonwealth Parliament. Though considered at the Convention debates, delegates nonetheless crafted constitutional arrangements that made traditional responsible government (however shadowy the definition) reliant on independent votes, moving coalitions of interests, and on a Senate as the defender of state, rather than party, interests. For those seeking to establish responsible government in Australia, these were not wise assumptions for the coming century. The fusion of the non-Labor parties and the emergence of a disciplined and increasingly successful Labor Party at the end of the Parliament's first decade set the pattern for a century of two-party parliamentary politics. By facilitating Executive dominance, the rise of political parties profoundly undermined the notions of responsible government upon which the Parliament was designed."
- "The founders left a vacuum at the centre of their Constitution, and Ministers have filled a space which might otherwise belong to the Parliament."
- Redesigning Westminster Legislatures in Australia
- By Alan J. Ward, given at a workshop conference ("The Dominion Concept: Inter-state and Domestic Politics in the British Empire") at the University of Warwick, England, in July 1998. At the Political Science Discourse site.
- "The British system of cabinet government, as we know, was not invented. It grew in a seven hundred [year] gestation that first saw Parliament emerge to challenge the Crown, and then saw a Cabinet, drawn from the majority in the House of Commons, emerge to take power from the Crown and dominate Parliament."
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The Rule of Law
|
- Courts and the Rule of Law
- By Chief Justice Murray Gleeson. Part of The Rule of Law series, delivered at Melbourne University, 7 November 2001. At the High Court's website.
- "As a principle of government, the rule of law, like representative democracy and the separation of powers, has both formal and aspirational aspects. It has a certain minimum content; but the principle is usually invoked in a manner that either assumes, or explicitly asserts, more."
- "Dicey contrasted the rule of law with discretionary power. Much of the power exercised by courts, whether given by statute or common law, involves discretionary decision-making. Discretion implies choice between legally available alternatives. The law limits the judge's area of choice."
- The "Rule Of Law" As An Australian Constitutionalist Promise
- By Andrew Sykes. At the website for Murdoch University's E Law journal, March 2002 issue. What is the rule of law, the rule of law in Australia, and other matters.
- "Constitutional law has two main functions. It seeks to provide a stable and secure basis for the exercise of government power, and also seeks to limit that power. 'It is both a supportive and a constraining framework'."
- The Transitional Rule of Law
- By Francois DuBois and Adam Czarnota. "An analysis of the nexus between law, politics and quasi-legal institutions." Published February 1999 in the Alternate Law Journal. Stored at the journal's online archive on AustLII.
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Secession
|
- The Civil War We Never Had
- By Professor Geoffrey Bolton. Paper presented to the Samuel Griffith Society in 1993. Reflections on Federation & secession. [Note: on reflection I've moved this paper here.]
- Getting Out: Secession and Constitutional Law
- By James A. Thomson. At the website for Murdoch University's E Law journal, March 1999 issue. The Canadian Supreme Court's decision on Quebec & secession, together with various comparisons between the Canadian and Australian situations. One of three papers in that edition offering "comparative reflections" on that issue. Brief (The (lengthy) list of footnotes is longer than the article!)
- "Exiting from federations[1] is not impossible. Secession of component entities--states, provinces, cantons or territories - does, however, confront, in addition to political, cultural, economic, religious, military and other issues, a major legal conundrum: does constitutional law authorise secession?"
- The Quebec Secession Reference: The Law Of Politics Or The Politics Of Law?
- By Greg Craven. At the website for Murdoch University's E Law journal, March 1999 issue. Quebec & secession. One of three papers in that edition offering "comparative reflections" on that issue.
- "Probably the most fundamental aspect of the secession reference is that the Supreme Court clearly and unequivocally recognises the potential secession of Quebec as a grave and impending threat to the continuity of the Canadian federation. This might be regarded as a matter so obvious as to require no notice, were it not for the fact that federal states and their organs all too typically fail to appreciate the seriousness of secessionist movements until it is too late to prevent disruption of their union. ... A local parallel is to be found in Australian constitutional politics of the 1930's, where Federal leaders remained naively confident that the Western Australian secession movement was essentially trivial, up to and even after the holding of a resoundingly successful referendum on the subject."
- Secession and Federalism
- By Dr Campbell Sharman. Paper presented to the Samuel Griffith Society in 1993.
- Why Quebec Secession Matters
- By Ralph Simmons. At the website for Murdoch University's E Law journal, March 1999 issue. Quebec & secession. One of three papers in that edition offering "comparative reflections" on that issue.
- "Probably the most fundamental aspect of the secession reference is that the Supreme Court clearly and unequivocally recognises the potential secession of Quebec as a grave and impending threat to the continuity of the Canadian federation. This might be regarded as a matter so obvious as to require no notice, were it not for the fact that federal states and their organs all too typically fail to appreciate the seriousness of secessionist movements until it is too late to prevent disruption of their union. ... A local parallel is to be found in Australian constitutional politics of the 1930's, where Federal leaders remained naively confident that the Western Australian secession movement was essentially trivial, up to and even after the holding of a resoundingly successful referendum on the subject."
- Secession a political issue? Not when law constructs the "will" and the
"people" (access restricted)
- Author unknown. A "Lawyer Talk" item. In the Law Society Journal (NSW), September 1999. Brief. Quebec & the secession issue, with a reference at the end to the 1933 Australian attempt. Canvasses such issues as "What is the People?", "What is the will of the people?" ("Not everyone who voted yes in the referendum wanted secession"), and "Does the rule of law have primacy?" ("Not totally. Professor Webber said it is not too hard to imagine radically intolerable cases in which rebellion is justified.")
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Separation of Powers
|
- Darkness On The Edge Of Town: The High Court And Human Rights In The Brandy Case
- By Imtiaz Omar. In the Australian Journal of Human Rights, Vol. 2, No. 1, 1995.
- "At the Commonwealth level, the separation of powers doctrine does not prevent delegation of legislative powers to the executive. The judicial power of the Commonwealth, however, is considered a distinct category, and a strict demarcation is attempted to be drawn by the High Court between it and other Commonwealth powers. ... But, there have been practical problems in abiding with this strict separation doctrine. Part of the problem has arisen in the context of powers of federal administrative tribunals. It is accepted that agencies such as the Administrative Appeals Tribunal, Trade Practices Commission, or Registrar of Trade Marks sometimes exercise a function similar in nature to the Commonwealth judicial power. On the other hand, a Federal Court judge may, in certain instances, exercise a 'non-judicial' power."
- Defence of the Indefensible: Reassessing the Constitutional Validity of Military Service Tribunals in Australia (139K)
- By Andrew D. Mitchell and Tania Voon. 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. Do military tribunals breach the doctrine of the separation of powers?
- Judges, Courts, and Tribunals
- By Kevin Ryan QC. At the Judicial Conference of Australia's site. Presented to the Australian Judicial Conference Symposium, Canberra, November 1996. Courts, tribunals, and the separation of powers.
- Review of a Judicial Registrar's decisions is a new hearing (access restricted)
- By Joe Catanzariti. In the Law Society Journal (NSW), July 1995. Touches on the separation of powers doctrine.
- "In the decision of the Association of Professional Engineers, Scientists and Managers, Australia (APEMSA) v Deniliquin Council, the Court referred to the decisions of Harris and Brandy, in holding that given consideration of the provisions of Chapter III of the Constitution, the maintenance of the integrity of the separation of powers, is the overbearing consideration in concluding s.377 must be construed to treat a review as a hearing de novo."
- Separation of Judicial Power
- 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 P. Keyzer's Constitutional Law (1998), however this is not explicitly stated in the notes themselves.
- Separation of Powers
- By Ted Moore (?). Australian Constitution Research Projects
- The Separation of Powers
- By Justice Len King. 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. Gives "an overview of the history, theory and contemporary reality of the separation of powers with particular emphasis on its application to Parliament and the judiciary system", but also "identifies" some of the issues (eg judicial law-making and judicial accountability) dealt with in greater detail by other papers given at the conference. Looks at the separation of powers in State constitutions as well as in the Commonwealth Constitution. Also looks at the separation of powers not just from the perspective of judiciary vs legislature & executive but also legislature vis-a-vis executive.
- "The power of the courts to declare null and void an act of the [US] Congress was not expressly conferred by the United States' Constitution. It was nevertheless understood to be essential in a constitution which placed limitations upon legislative power."
- "The founding fathers of the Australian Federation appreciated the model which the United States Constitution provided for the type of federal constitution which they envisaged. The legislative[,] executive and judicial powers were treated in the Constitution as separate powers."
- "From the beginning [the High Court] upheld the power of the Commonwealth Parliament to authorise the making by executive government of regulations and proclamations having legislative effect.... The relevance of the doctrine of separation of powers to this issue was discussed in the judgments in Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931).... The High Court's view of the matter seems to have been founded pretty much upon the practical consideration that the making of regulations is an essential aspect of the modern business of government."
- Separation of Powers and the status of administrative review
- By Bruce Topperwien. In two parts (plus a separate bibliography). At his own website. Includes a discussion of the nature of the Commonwealth's judicial power and its limits.
- "While the Constitution appears to divide government into three arms associated with the three powers, I suggest that Parliament and the Executive can create, and effectively have created, a fourth arm of government, independent of, but subject to oversight by Parliament, the Executive, and the Judiciary. This fourth arm, which exercises all three types of powers (executive, legislative and judicial), comprises those independent agencies of government that are not subject to direct Ministerial (ie Executive) or Parliamentary control...."
- "The story has been told of former President Harry Truman, on hearing the news that General Eisenhower had been elected President, said, 'Ike will be very disappointed in office. He will say, "Do this, do that" and, unlike in the Army, it won't happen.' This is clearly the Australian Executive's experience of the fourth arm of government. ... Once statutory powers are granted to independent agencies of government, the Courts will ensure that they are exercised independently of undue Executive influence."
- Unfair Dismissal: Some constitutional law issues raised by the 1996 amendments (access restricted)
- By Maria Linkenbagh. In the Law Society Journal (NSW), August 1997. The separation of powers doctrine and the 1996 amendments to the federal unfair dismissal laws.
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Social Services
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- "Whereas the People" may or may not want to help others
- By Marie Leech. The Commonwealth and the provision of social services. Does not confine itself to ss51(xxiii) & 51(xxiiiA) but also looks at the possibilities of the external affairs power. Published February 1999 in the Alternate Law Journal. Stored at the journal's online archive on AustLII.
- "The proper role of the Commonwealth in the supply of social services can only be determined within the framework of the Australian Constitution."
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State Borders
|
- State Borders (missing)
- By Mr Justice PW Young. From Current Issues in the March 1998 issue of The Australian Law Journal. (Only Current Issues is online.)
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Statehood for the
Northern Territory
|
See New States above. |
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State Legislatures
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- State Upper Houses in Australia (531K)
- By Gareth Griffith and Sharath Srinivasan. 2001. At the Constitution Commission of Victoria site. Background paper.
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Taxation
(including State Taxation as a federal constitutional issue)
|
- Beneath Deakin's Chariot Wheels: The Decline of Australia's Federation
- By Alan Wood. Paper presented to the Samuel Griffith Society in August 1998. The decline of State revenue sources and the decline of the Australian federation.
- The title is an allusion to a statement Alfred Deakin made on April Fool's Day, 1902: "The rights of self-government of the States have been fondly supposed to be safeguarded by the Constitution. It left them legally free, but financially bound to the chariot wheels of the Central Government."
- "Australia's federation is in a terminal condition, but as long as expedient State Premiers and a cynical Commonwealth are prepared to play the 'bucket of money' game, then like a patient on life support whose vital functions have ceased, it will continue to offer the semblance of life."
- Current Hot Issues--State Revenue High Court (Constitution) Decision (missing)
- A page of links at the NSW Parliament site concerning the High Court judgment invalidating State tobacco & related taxes. (Mainly points to SMH & The Australian newspaper articles.)
- Federal and State Taxation: A Comparison of the Australian, German and Canadian Systems (133K)
- By Denis James. A (November) 1997 Current Issues Brief from the Department of the (Federal) Parliamentary Library. Touches on constitutional issues and problems (including s90).
- The Future of State Revenue: The High Court Decision in Ha and Hammond (missing)
- By Gareth Griffith. Briefing paper. Executive summary & table of contents only available online. ("The purpose of this paper is to present an account of the recent High Court decision in Ha and Hammond, a ruling which promises to be a landmark in the development of State-Federal financial relations.") At the NSW Parliament's site.
- Is the federal tax system unconstitutional?
- By Gavin Putland. 30 September 2000. At the OnLine Opinion discussion site. Is filling in the BAS a form of civil conscription?
- "In British Medical Association vs. Commonwealth (1949), the High Court held that the Pharmaceutical Benefits Act 1947-1949 was unconstitutional because it required doctors to write prescriptions on Commonwealth forms, which requirement amounted to civil conscription.... By that standard, the work associated with the new Business Activity Statement forms is also civil conscription. ... The High Court was not required to rule on whether the prohibition of civil conscription applies outside s.51(xxiiiA), but there are two reasons for believing that it does. First, it is absurd that there should be one rule for doctors and dentists and another for the rest of us, and equally absurd to suggest that the drafters of s.51(xxiiiA), or the electors who ratified it in the referendum of 1946, intended to protect doctors and dentists but not anyone else. Second, the Parliament only has such powers as are conferred on it by the Constitution, and nowhere does the Constitution explicitly or implicitly confer a power of civil conscription."
- Method of introducing new sales tax measures an impediment (access restricted)
- By Robin Hunt. In the Law Society Journal (NSW), August 1996. Includes a mention of s114.
- Preface to Review of Western Australian State Taxes
- By the "Taxation Policy Elective". At the website for Murdoch University's E Law journal, May 1994 issue. Note: this version is in plain text (as opposed to HTML). Includes a discussion of s90 and other constitutional constraints in relation to State taxation. Note: the references to "Chapter 6" in the text would appear to be in error for "Chapter 5". The Chapter 6 file ("Betting Taxes") contains no discussion of constitutional matters whereas Chapter 5 does.
- Review of Western Australian State Taxes 1993: Chapter 5 Business Franchise Licence Fees
- By the "Taxation Policy Elective". At the website for Murdoch University's E Law journal, May 1994 issue. Note: this version is in plain text (as opposed to HTML). Includes a discussion of s90.
- Review of Western Australian State Taxes 1994: Chapter 12 Stamp Duty and Financial Taxes in the 21st Century
- 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). Looks at a number of constitutional issues, including one that is not exactly in the Constitution, involving s2 of the Australia Act.
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The States under the Commonwealth Constitution
| Note that more specific aspects of this issue, such as federalism, federal-state financial relations, secession, and state taxation, are filed elsewhere. |
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- The Australian States and the Australian Nation
- By Greg Craven. 20 March 2001. Barton Lecture at the NSW Supreme Court, Sydney. No. 7. At the ABC's Radio National site.
- "...when one strips the constitutional history of England of its trimmings, and above all its self-congratulation, there emerges from among such golden threads as parliamentary democracy and the rule of law another strong but far less shining strand: the ruthless, progressive, single-minded centralisation of power in the sovereign parliament at Westminster, and the equally grim suppression of any countervailing tendency, chiefly as represented by the various Celtic remnants of the British Isles. In the local Australian translation, this privileging of ever-expanding central hegemony is profoundly inconsistent with the notion of semi-independent regionalism represented by the States."
- "There are strong grounds to suspect that one of the primary reasons for the general disrepute of the States is that their existence is seen by many as inconsistent with what might be referred to as Australia's coalescing national epic. According to this view, the single defining moment of Australian political history was Federation, which involved a coming together of the disparate political parts of Australia into a single whole. As a consequence, anything that stresses this heroic wholeness must by definition be good, while anything that reminds us of past divergence--such as the State successors to the old colonies--correspondingly must be bad."
- The Constitution and our State Constitutions
- By David Russell QC. Paper presented to the Samuel Griffith Society in 1994. Erratum note: this paper refers, twice, to the "Schedule to the Commonwealth of Australia Constitution Act". There is, of course, no schedule to the Constitution Act (though there is one to the Constitution in s9 of the Act).
- Returning Power to the States: Risky or Responsible?
- By Richard Court MLA. Address to the Samuel Griffith Society in October 1997. ("When you compare our Federation, the Australian Federation, with those of the other O.E.C.D. countries, there is one glaring difference, and that is that we are the only Federation where the States do not have access to an income tax base and a general consumption tax base.")
- Waiting For The Other Shoe To Fall: The Unresolved Issues in Yougarla v Western Australia (MS Word)
- By Peter Johnston. The repeal of s70 the Constitution Act 1889 (WA), s106 of the Commonwealth Constitution and assorted issues relating thereto. Including whether s106's "the Constitution of each StateÓ "was to be read as confined solely to the legislation of the State, excluding any manner and form provisions that might be derived from Imperial legislation."
Delivered at a constitutional law conference held in February 2002. At the Gilbert & Tobin Centre of Public Law website.
- "[Kirby J] observed [in Yougarla] that if the various Constitution Acts of the States set the outer limits of the constitutional elements of each State, Supreme Courts would not be included. Such a conclusion would be contrary to the High Court's decision in Re Tracey; Ex parte Ryan in which the High Court had held that State courts are part of the government of a State and are protected from Federal control by s.106."
- "Where a breach of a State manner and form provision entails a consequential breach of s106 the suit is one arising under the Commonwealth Constitution. It therefore attracts Federal jurisdiction with the result that the matter falls within the reach of the Judiciary Act 1903 (Cth). To accept that there is, in effect, a textual association between the State and Commonwealth Constitutions, at least so far as manner and form provisions are concerned, invites consideration of the more general relationship between the two constitutional systems. At bottom, this involves one of the most fundamental constitutional questions of all: What is the basis, the 'Grundnorm', of a State's constitutional system
- Western Australia and the Federal Compact
- By Richard Court MP. Address to the Samuel Griffith Society in 1994.
- "Australia stands alone as an important, modern and advanced federation where Governments at State level are forced to go cap in hand to the Federal Government each year for major funding support. The process is demeaning and engenders bitterness and rancour. More importantly, it is not good government. Political responsibilities are blurred. State voters are disenfranchised to a significant degree. They have voted for State Governments on the basis of their declared policies. These policies can be greatly eroded or even overturned by a Commonwealth Government which imposes other policy prescriptions and gets its way through financial coercion."
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Treaty Making
(see also International Law and the Constitution; and also Section 51(xxix) in Discussion of Particular Provisions)
| This section is intended to cover treaty making as an issue in which s51(xxix) is not the dominant subject under discussion. |
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- The Case for Parliamentary Approval of Treaties in Australia
- By Glen Cranwell. At the website for Murdoch University's E Law journal, December 2001 issue.
- "In its decision in Minister for Immigration and Ethnic Affairs v Teoh, the High Court held that the executive's ratification of an international convention created a legitimate expectation that the executive government and its agencies would act in conformity with that convention. This decision has fuelled debate on Australia's current system for entering into treaties."
- Federal Parliament's Changing Role in Treaty Making and External Affairs (204K)
- By Anne Twomey. 7 March 2000. A history of Australian treaty making & treaty powers from colonial times to the present day. A research paper from the Department of the (Federal) Parliamentary Library. Part of "The Vision in Hindsight: Parliament and the Constitution" collection of essays.
- "In 1901, Australia was a colony with no power to enter into treaties. Treaties were still imposed upon Australia by Great Britain, often without consultation, and the ability of the [Federal] Parliament to legislate contrary to a British treaty was in question. Treaties themselves, however, dealt with a limited range of subjects which were truly 'international' in nature. Today, Australia is a sovereign nation which enters into treaties in its own right and which can legislate to implement or breach treaties, if it so chooses. The external affairs power allows the Commonwealth Parliament to legislate to implement treaties on subjects traditionally within the jurisdiction of the States, vastly expanding the scope of Commonwealth legislative power."
- Globalisation: Perceptions and Threats to National Government in Australia (136K)
- By Glenn Worthington. 26 June 2001. Research Paper from the Department of the (Federal) Parliamentary Library. Touch on constitution matters, especially the treaty power.
- International Treaty Making and the Role of the States
- 1st report of the Federal-State Relations [Joint] Committee of the Victorian Parliament. May 1997. The treaty power, case studies, the role of the States in international negotiation, the role of the Commonwealth Parliament, etc. Includes the Victorian Government's response to the report.
- The Teoh Bill
- Author unknown. For the LAW309 course at Macquarie University. Assorted resources (bill digest, explanatory memorandum, etc) for the Commonwealth bill to reverse the Teoh decision. Some of them include discussion of and background to the Teoh case.
- Treaties in Australian Law
- Author unknown. Legal Briefing No. 18, 24 April 1995. At the Australian Government Solicitor's website. The AGS looks at the Teoh case.
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See also: Discussion of Particular Issues A-E and F-K |
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