- Agreeing on a Document: Reforming the Federal Constitution
- Aspects of the Commonwealth Constitution: Part 1
- By Chief Justice Murray Gleeson. 3 December 2000. Boyer Lecture No. 3 in the series "The Rule of Law and the Constitution". At the ABC's Radio National site. The author describes "how our Constitution has adapted to changing times." (See also Part 2, which is filed in the Bill of Right part of Discussion of Particular Issues.)
- Australia and Parliamentary Orthodoxy: A Foreign Perspective on Australian Constitutional Reform
- By Alan J. Ward. Papers on Parliament: Collection No. 35. Date uncertain, but post-1998. Includes a Q&A session with the author at the end. Assorted thoughts on constitutional reform. Ranges widely, over parliamentary democracy, upper houses and lower houses (and their respective reform), the republic issue, constitutional practices and their codification, etc. Has more than it's fair share of quotable gems: eg "Eamon de Valera, who as Irish Prime Minister was responsible for the present Irish Constitution, believed that Parliament exists to elect the government, and should then get out of the way..."
- "What seems odd to me...is that after fifty years of proportional representation in the Senate and the states, Australian governments have still not internalised the art of negotiation. Negotiation is dragged out of governments here like pulling teeth."
- "If you accept...that the concentration of power in the executive is an unfortunate, and very often corrupting, characteristic of modern parliamentary government, you will probably accept that just about the only check on the executive comes from a house that it does not control. Sometimes it is the lower house that is not controlled, if the government finds itself dependent on independents or minor parties for its majority. This happened in New South Wales and Tasmania, for example, in recent years, where governments had to concede substantial reforms of Parliament in order to secure majorities. In Australia it is generally to the upper house that one looks for a check on the executive."
- "For those [founding fathers] who thought responsible government would fail, the decision to entrust the executive to the Governor-General and not spell out the rules of responsible government in law meant that the Governor-General would be free to adopt a non-British style of executive--the Swiss model was mentioned--if responsible government were to fail."
- Australia And The European Union: Some Similar Constitutional Dilemmas
- By Matt Harvey. Constitutional development, "statal form" (monarchy vs republic, federalism vs centralism), and other matters. Published 2001 in the Deakin Law Review.
- An Australian Constitution
- By James Evans. At AustLII's Documents of [Aboriginal] Reconciliation and Constitutional Issues: Seminar 3 site. A solicitor from the NSW Crown Solicitor's Office offers some suggestions for moving the Federal Constitution "from being a document which is one of exclusion to being wholly inclusive."
- An Australian Constitution
- By Professor Garth Nettheim. At AustLII's Documents of [Aboriginal] Reconciliation and Constitutional Issues: Seminar 3 site. Touches on ss25 and 51(xxvi), among other Aboriginal-related issues.
- The Australian Constitution: A Living Document
- By Hugh M Morgan. Paper presented to the Samuel Griffith Society in 1992.
- The Australian Constitution: What does it do?
- Compiled by Jane Innes. A "subject overview". On the Millennium Dilemma site at the University of Wollongong. Short viewpoints from assorted eminent citizens, including Anthony Mason, Murray Gleeson, and Zelman Cowan.
- The Australian Constitution: Where does it come from?
- Compiled by Jane Innes. A "subject overview". On the Millennium Dilemma site at the University of Wollongong. Short viewpoints from assorted eminent citizens, including Michael Kirby, Elizabeth Evatt, and Cheryl Saunders.
- Australia's Constitutional Future
- Compiled by Jane Innes. A "subject overview". On the Millennium Dilemma site at the University of Wollongong. Short viewpoints from assorted eminent citizens, including Murray Gleeson, Dame Roma Mitchell, and Sir Maurice Byers.
- Australia's Constitutional Landmarks
- Compiled by Jane Innes. A "subject overview". On the Millennium Dilemma site at the University of Wollongong. Short viewpoints from assorted eminent citizens, including Murray Gleeson, Elizabeth Evatt, and Leslie Zines.
- Australia's Constitutional Identity: a Conundrum for the 21st Century?
- By Helen Irving. 10 April 2001. Barton Lecture at the NSW Parliament House, Sydney. No. 10. At the ABC's Radio National site. (Another copy here at UTS's 1901 Centre site.)
- "I do not deny that our Constitution has worked and continues to work well. It is a restrained, 'minimalist' document and much of what it does say is still a functioning description of our practices. ... But even its staunchest defenders would have to admit that the Constitution often works well because what it says is ignored. The Queen does not appoint the Governor-General. He does not determine the dates of parliamentary sessions 'as he thinks fit'. He does not choose government Ministers, nor, in normal circumstances, do they hold office during his pleasure."
- The Constitution: 100 Years On
- By Sir Harry Gibbs. Address to the Samuel Griffith Society in August/September 2001. Reflections on various constitutional matters.
- "Federation in Australia is no longer what Griffith and Barton intended. As a result of decisions of the High Court, action by the Commonwealth, and to a lesser extent inaction by the States, the supremacy and independence of the States within their own sphere has suffered a double whammy, or, if you prefer a more Miltonic expression, has been struck by a two-handed engine."
- Constitutional Law and the ACT Body Politic
- Briefly describes the constitutional arrangements of the Australian Capital Territory (as of 1992). Part of the Questions and Answers part of the A.C.T. Attorney-General's site. Note: poorly formatted. Could be difficult to read.
- Click Go the Shears: The Reception of Constitutional Models and Australian Constitutional Theory
- By Dr John Williams. 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.
- "The drafting of the Australian Constitution is another example of strategic comparative research and importation. The drafters did not turn the creation of the Australian Constitution into an exercise in re-inventing the wheel. Rather they cast their nets widely in search of models that would form the templates for the new Commonwealth."
- "[W]hile Australia has been quick to adopt models it has been deft at shearing them of their historical and theoretical covers. This cutting away has left the Australian constitutional [sic] undertheorised."
- Communications under the Optional Protocol: Not as simple as they look (access restricted)
- By Susan J Gibb. In the Law Society Journal (NSW), March 1996. Touches on the implied rights issue.
- "...it is becoming less easy to predict when remedies are or may be 'available' under Australian law as the High Court develops its 'human rights' jurisprudence in the name of fundamental freedoms and implications arising from the Constitution."
- Constitutional Centenary and the Counting of Blessings (129K)
- By Justice Michael Kirby. Fifth Ninian Stephen Lecture, 20 March 1997. At the High Court's website. Looks at "Suggested Constitutional Defects" (ten are listed), "Institutional Adaptation" (of all three branchs: executive, legislature, and judiciary), and the "Blessings Remembered" (ten listed).
- Constitutions and The Constitution
- By S.E.K. Hulme. Paper presented to the Samuel Griffith Society in 1992. Reflections on constitutional law and on the Commonwealth Constitution, its origins, and reform, and comparisons with the US, amongst other matters. Includes an unflattering accessment of the amended version of s15.
- Note: the Society's table of contents lists an altogether different title for this article: "The Constitution: Its Defects or Ours?"
- "It is often said that England has an unwritten constitution and Australia a written one. The statement...rests on a fundamental confusion between two different things, namely 'the constitution' or 'the constitutional law' of a country as the system of rules relating to the government of that country, and 'the Constitution' as a particular document (or group of documents, but I will not add that each time) containing a statement of some of those rules (usually important ones), which rules are often given special weight by their inclusion in that document. Every organised country has the first. Not every country has the second."
- Conventions of the Constitution (missing)
- Prepared by Bryan Palmer. A series of essays covering, amongst other issues, a brief history of the Westminster System, responsible government in Australia, Australian independence, and the 1975 dismissal.
- A Country Planted Thick with Laws
- By Chief Justice Murray Gleeson. 19 November 2000. Boyer Lecture No. 1 in the series "The Rule of Law and the Constitution". At the ABC's Radio National site. (The title is drawn from the play A Man for All Seasons by Robert Bolt.)
- "Although in form it was Imperial legislation, [Alfred] Deakin...pointed out in 1902 that the Constitution was a great deal more than that. ... '...our Constitution, although an Imperial Act, has a dual parentage. It proceeds from the people of the whole continent....This Constitution is not the creation of our State parliaments only, neither is it the creation of the Imperial Parliament only. It draws its authority directly from the electors of the Commonwealth'."
- Courts for the People--Not People's Courts
- By former Chief Justice Sir Gerard Brennan. Delivered at the inaugural Deakin Law School Oration, 26 July 1995. At the High Court's website. Judicial competence, integrity, immunity, security of tenure, the maintenance of public confidence, and other matters. Does not deal specifically with the Australian judiciary, although it touches on them in many places (Deakin & his Judiciary Act gets an early mention, as does a brief account of what nearly happened to s74 when the Commonwealth Bill went to the UK for enactment).
- "Judicial integrity also calls for a rigid application of the relevant rule of law. ... in the higher appellate courts and particularly in the High Court, the relevant rule of law must be ascertained in strict accordance with the judicial method. The judicial method allows for some development of legal principle, but it is subject to clear limitations. No court is authorized to change a rule of law fixed by the Constitution of the Commonwealth or the Constitution of a State or fixed by a valid statutory provision. Those areas apart, the higher appellate courts have the authority--indeed, the responsibility--by analogical reasoning and by reference to the enduring values of the society which the law is designed to serve, of maintaining the rules of law in a state which commands the respect of the contemporary community."
- Executive and High Court Appointments (143K)
- By Dr Max Spry. 10 October 2000. Note: this paper has been filed here (rather than up in Discussion of Particular Issues above) mainly because it spans what I would consider to really be three separate topics: the appointment of ministers, other executive government appointments, and the appointment of federal judges by the executive.
- A research paper from the Department of the (Federal) Parliamentary Library. Part of "The Vision in Hindsight: Parliament and the Constitution" collection of essays.
- "There is almost no interest, either in or out of Parliament to amend the Constitution to allow Ministers to be chosen by other means--be it by Parliamentary election or by the appointment of talented members of the community who are not elected to Parliament."
- "As Barton noted in the context of appointments to the High Court, encumbrances should not be placed on the right of the Executive to make appointments 'to offices high or small'."
- "Since Federation there has been criticism of individual appointments to the Court and there have been some calls for changes to the appointment process. Parliamentarians themselves, however, have been most reluctant to advocate change to the appointment process."
- The Federal Court on Constitutional Law: The 2001 Term (MS Word)
- By Justice Catherine Branson (of the Federal Court of Australia). An overview of cases of constitutional interest heard by the Federal Court in 2001. Delivered at a constitutional law conference held in February 2002. At the Gilbert & Tobin Centre of Public Law website. Note that the author's name does not appear in the paper itself.
- The Future of the Federation
- By Jan Wade MLA. Dinner address to the Samuel Griffith Society, 1995.
- The High Court on Constitutional Law: The 2001 Term (MS Word)
- By Stephen Gageler SC. An overview of cases of constitutional interest heard by the High Court during 2001. Delivered at a constitutional law conference held in February 2002. At the Gilbert & Tobin Centre of Public Law website.
- "On any view, 2001 was not a watershed year. The High Court did not in 2001 'startle the nation'. We had enough of that in 1999 when the cross-vesting legislation, having worked innocuously and efficiently for more than a decade, was declared in Re Wakim; Ex parte McNally to contravene a fundamental principle of separation of state and federal judicial power enshrined in Chapter III of the Constitution."
- Inter-State Commission
- At The Echo (a newspaper index site). Newspaper extracts covering a range of matters. This webpage has no overall title so I've supplied one instead on the matter that led me to include a link here. Among the many clippings on this webpage (most on non-legal matters), the second ("The Commonwealth Federal Cabinet Meeting: The Inter-State Commission", extracted from The Age of 29/4/1901) offers an interesting perspective on ss102 & 104 of the Constitution. ("A close examination of the clauses relating to the Inter-State Commission revealed how effectually New South Wales has under the constitution protected her railways.")
- Jurisdiction: High Court banishes double actionability rule from the
Federation (access restricted)
- By Michael Elliott. In the Law Society Journal (NSW), September 2000. A comment on John Pfeiffer Pty Limited v Rogerson in which the High Court "reformulated the choice of law rule for intranational torts, and clarified the position with respect to the jurisdiction of an Australian court to hear such matters." Sections 77(iii) and 118, Australia's federal system, and other matters get aired in passing.
- "Kirby J...described the need to consider the nature and extent of the federal structure in shaping choice of law rules to be applied within it in the following way: 'The basic problem of persisting with the approaches to the choice of law rule as successively adopted by the English Courts, and adapted by this Court, is the constitutional error involved in treating several component law areas of Australia as if they were, in relation to one another, "separate countries". Leaving aside for the moment any imperatives to be derived directly from the express commands of the Constitution, the whole purpose, character and organisation of a federation (at least one such as Australia) is inconsistent with such an approach'."
- The Media and the Constitution
- By Professor David Flint. Paper presented to the Samuel Griffith Society in October 1997. The Chairman of the ABC looks at four questions: "Why is there no express guarantee of the freedom of the press in the Constitution?", "What protection does the Constitution give to the media?", "Would the media be better protected under an express constitutional guarantee?", and "Does the media deserve its freedom?"
- The Nature of the Australian Constitution: The Limitations of the Institutional and Revisionist Approaches
- By John S.F. Wright. In Federal Law Review Vol. 28 No. 3 (2000). Stored at the archived copy of the Federal Law Review at the National Library of Australia.
- "The nature of the Australian Constitution is usually described as either monarchic and parliamentary, or republican and federal. However, more than succinct expressions of the key political concepts behind the Australian Constitution, the two metaphors are the products of particular forms of analysis. Essentially, the terms parliamentary or constitutional monarchy and federal republic are the products of either revisionist or institutional interpretations of the Australian Constitution. The institutional interpretation focuses on the practical function of the Constitution's federal and parliamentary institutions, and the origins of these devices within the British and American Constitutions. ... Alternatively, the key feature of revisionist interpretations of the Australian Constitution is top-down philosophical reasoning. Revisionists associate the nature of the Constitution with preconceived intellectual frameworks--predominately republicanism--by rearticulating the key political principles of philosophical movements, and identifying them with individual provisions of the federal Constitution."
- New Ideas, Old Laws: Copyright, Patents, Trade Marks and Designs, and How to Avoid Plagiarism (74K)
- By Brendan Bailey. A background paper from the Department of the (Federal) Parliamentary Library. Includes a discussion of the constitutional basis of the matters in question.
- Notes on the Commonwealth Constitution and its Impact on Public Sector Activities in the Australian Federation
- Very brief notes (apparently for economics courses at Murdoch University) on ss51(i), 51(ii), 51(xx), 51(xxix), 90, & 86.
- Offshore Constitutional Settlement 1980: A Case Study in Federalism (PDF)
- By Pat Brazil. Mostly an overview of the offshore agreement. The reference to "federalism" in the title is to the political concept of "cooperative federalism" ("It was right at the time--pace Paul Keating--to describe the settlement as a milestone in cooperative federalism."). Sections 51(x) and 51(xxxviii) get mentioned in passing. Paper presented to the Public Law Discussion Group at the Faculty of Law, ANU on 5 April 2001. At the ANU's Centre for International and Public Law.
- The Parliament, the Executive, and the Courts: Roles and Immunities
- By former Chief Justice Gerard Brennan. Delivered to the School of Law at Bond University, 21 February 1998. At the High Court's website.
- The Position of Indigenous People In National Constitutions
- By the Council for Aboriginal Reconciliation. Part of the Reconciliation and Social Justice Library. The report of a conference held in Canberra in June 1993. (The conference proceedings can be found here.
- Professions and Federation: The Emergence of a National Market in Legal Services and a National Legal Profession (PDF)
- By Terry Connolly. Section 117 (among other matters) gets discussed. Paper presented to the Public Law Discussion Group at the Faculty of Law, ANU on 22 May 2001. At the ANU's Centre for International and Public Law.
- Proposed Changes to Financing Aged Care--Some Tax and Constitutional Issues
- Regional Development: Some Issues for Policy Makers (121K)
- By Professor Tony Sorensen. A research paper from the Department of the (Federal) Parliamentary Library. Includes a look at various constitutional aspects.
- "The Responsibility of Judges" and "Trial by Jury: the Scope of Section 80 of the Constitution"
- By Justice Lionel Murphy QC. The webpage actually contains two speeches given by Justice Murphy (the ones listed above), plus transcripts (one incomplete) of two National Press Club speeches. Their dates span from 1980 to 1986. Stored at a website titled Lionel Murphy QC: His Speeches maintained by A/Professor Jenny Hocking of Monash University.
- "The vast part of the law, the area not occupied by constitutions and statutes, is judge-made. It is called the common law, which disguises its true nature. It should be called the judge-made or decisional law. As judges make the law (or it has been made by their predecessors), they are entitled to bring it up to date. They continually neglect to do so on the excuse that only parliaments can do it. Seven hundred years of the history of the common law contradict his excuse. Otherwise, we would still be deciding cases according to the law of King Stephen."
- "I have been a life long believer in the value of trial by jury. Recent events have confirmed my belief. Trial by jury should be maintained and extended as far as possible. Trial by jury is our legal heritage. At state level, we derived it directly from Britain. At federal level we adopted it from the United States. In modern times the people's will is exerted upon the legislative and executive branches of government through the ballot box. The jury is the means by which the people participate directly in the administration of justice."
- Right According to Law
- By Peter Connolly. Address to the Samuel Griffith Society in 1992. Cole v Whitfield & other gripes.
- R v Hughes and the Future of Co-Operative Legislative Schemes (113K)
- By Graeme Hill. In The Melbourne University Law Review Vol. 24 No. 3 (2000). A case note. The Corporations Act, federalism, and the Constitution. Stored at AustLII's online archive.
- Socialism Within the Australian Constitution
- By Gough Whitlam. John Curtin Memorial Lecture 1961. At the John Curtin Ministerial Library website. An item of historial interest by a future prime minister (albeit his ambitions, as stated in the paragraph quoted below, would never be realised).
- "My interest in constitutional matters stems from the time when John Curtin was Prime Minister. The Commonwealth Parliament's powers were then at their most ample and it was constitutionally, if not always politically, more open to a Labor Government to carry out its policies than it is in peace time. John Curtin, however, saw that he was presiding over a passing phase. He was not content with the paradox that the Labor Party was free to enact its policies in times of war alone. Accordingly, in 1944 he sponsored a referendum to give the Federal Parliament postwar powers. His motives for holding the referendum were based on patriotism and experience. He argued the case with his full logic and eloquence. The opposition to the referendum was spurious and selfish. The arguments were false. My hopes were dashed by the outcome and from that moment I determined to do all I could to modernise the Australian Constitution."
- Supping with the Devil
- By Richard E McGarvie. 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. Discusses "the extent to which judges and legislators should communicate directly about the operation of existing or proposed laws and the need for law reform in areas which have come to the notice of the courts." In doing so touches on the separation of powers, bills of rights, and other matters. See also Justice William Pincus's commentary on this paper.
- "Closer association between judges and legislators tends to spread law reform more widely and uniformly across the whole law and to hasten the process. Easier communication between the judges who see the defects and the legislators who can cure them would save ideas for beneficial changes in the law from being lost."
- "I opposed enforceable general statements of rights such as are found in the Constitution of the United States of America but supported a Bill of Rights which would entrench in the Constitution specific enforceable rights. I recommended that the specific rights should include the right to vote, the right to an independent judiciary, habeas corpus, and the right to have property acquired only on just terms. I opposed enforceable general statements of rights because that would transfer policy from the legislature and government to the judges: and because the confidence of the community in the judges would be damaged by judges being seen as activists promoting their own policies, and by basic rights appearing to depend on the social and political views of individual judges."
- Terrorism and the Law in Australia: Legislation, Commentary and Constraints (290K)
- By Nathan Hancock. 19 March 2002. A research paper from the Department of the (Federal) Parliamentary Library. Includes discussion of the Commonwealth's constitutional powers on such matters, the Communist Party Case, and other constitutional matters.
- Terrorism and The Law in Australia: Supporting Materials (229K)
- By Nathan Hancock. 19 March 2002. A research paper from the Department of the (Federal) Parliamentary Library. "The purpose of this paper is to provide resource materials in the context of prospective parliamentary debate over anti-terrorist legislation." 13 documents are included covering a wide range of associated issues, such as the power to enact extraterritorial laws and the exercise of jurisdiction with other countries. Matters of constitutional interest (eg s119) are touched on periodically.
- "The authority to legislate extraterritorially can be derived from the external affairs power because it relates to matters that are 'physically external' to Australia. But it may also be derived from the other legislative powers of the Commonwealth either directly or indirectly, using the incidental power in section 51(xxviii) of the Constitution. Significantly, Parliament, when not exercising the external affairs power, is not confined to enacting laws that are consistent with the requirements of international law."
- Three Cheers for Engineers
- By former Chief Justice Sir Gerard Brennan. Delivered at the ANU on the occasion of the 75th anniversary of the Engineers' Case, 31 August 1995. At the High Court's website. A "celebration" of the famous court case. ("The approach in Engineers was not only legalist but literalist, seeming to deny the possibility of implications that might limit Commonwealth legislative power. It was left to Dixon J. in West's Case and in later cases to restore the legitimacy of implications in construing the constitutional text.")
- Women and the Constitution
- By Marian Sawer. Presented to the WEL/CCF Workshop, 5 July 1997. ("Are women equal citizens? Can they become equal citizens? What role can the Australian Constitution play in this?")
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