• Selected
• Entire List

Abstract:
For both economic and social reasons, the reform of the Australian federal system is high on the political agenda. The States have called for a constitutional convention to obtain agreement on the necessary reforms. These are likely to include a reconsideration of the allocation of powers between the Commonwealth and the States, the reform of federal financial relations and the establishment and strengthening of mechanisms for intergovernmental cooperation.

Drawing on experience from other federations, this article considers the types of reforms that might be discussed by a constitutional convention, including the restoration of the cross-vesting system and the ability of one government to confer or impose executive powers and functions on the officers of another level of government. It also considers broader federalism issues such as Senate reform and the composition and operation of the High Court of Australia.

federalism, allocation of power, legislative power, executive power, intergovernmental agreements, federal financial relations, constitutional conventions, constitutional reform, constitutional amendment, mutual recognition of standards, framework laws, tied grants, cross-vesting of judicial power

Abstract:
This paper reviews the constitutional cases handed down by the High Court of Australia in 2007. It analyses these cases in the context of different approaches taken by the judges to constitutional interpretation. In particular it: contrasts the reliance on precendent against the return to first principles; analyses the use of original intent, history and textualism in constitutional interpretation; considers the use of foreign sources and international law by the High Court; discusses the High Court's current approach to federalism issues; and comments upon the range of the High Court's current interpretative approaches from strict legalism to dynamic constitutional interpretation.

High Court jurisprudence, constitutional law, judicial power, defence power, nationhood power, right to vote, precedent, original intent, judicial use of history, federalism, constitutional implications, constitutional interpretation, use of foreign sources by courts

Abstract:
The ban on fox-hunting in the United Kingdom provoked large protests and a number of legal challenges. The English Court of Appeal and the House of Lords, while upholding the validity of the Hunting Act 2004 (UK), added to the controversy by accepting that the courts could determine the validity of an Act of Parliament, contrary to the accepted principle of parliamentary supremacy, and that there were implied limitations on the power of the Westminster Parliament to enact laws under the Parliament Act 1911 (UK). For good measure, the courts added warnings about the use of the Parliament Act to push through undemocratic measures. This article examines the judgments and draws parallels with the position in Australia.

parliamentary supremacy, Parliament Acts 1911 and 1949 (UK), leigslative power, justiciability, parliamentary procedure, abolition of House of Lords, manner and form, constitutional amendment, prolongation of Parliament, parliamentary privilege, use of parliamentary materials

Abstract:
Constitutional reform has been difficult to achieve in Australia and once more the mechanism for generating reforms is being reconsidered. This article discusses in detail the use of constitutional conventions as a means of generating constitutional reform proposals and considers the matters that those proposing to hold a constitutional convention should address. It draws on Australian and international experience, particularly that of the United States, in addressing matters such as the merits of direct election, indirect election and appointment, the qualifications of delegates, the size and location of a convention, the method of elections and their financing, the involvement of politicians and the role of party politics, the agenda of conventions and their operation. It also considers the merits of alternatives, such as expert constitutional commissions, parliamentary committees and the deliberative polls or citizens' assemblies.

constitutional reform, constitutional conventions, constitutional commissions, parliamentary committees, deliberative polls, citizens' assemblies, referendum, deliberative democracy, constitutional amendment, election of delegates, political parties, financing constitutional reform

Abstract:
If a Bill is duly passed by both Houses of Parliament and presented to the Queen or her vice-regal representative for royal Assent, can ministers advise that assent be deferred or refused? The issue has recently arisen twice in the Australian States. It has exposed quite different understandings of the Sovereign's role as part of Parliament, and opened up questions as to the discretion, if any, that may be exercised by the Sovereign or her vice-regal representatives in giving Royal Assent. This article discusses examples of cases where Ministers have interfered with the grant of royal assent and the grounds upon which this might be legitimate.

royal assent, legislation, Parliament, parliamentary procedure, commencement of Acts, Crown, advice to Queen, ministerial responsibility, executive power, validity of laws, Governors, Commmonwealth of Nationas, reserve powers, manner and form

Abstract:
This article considers the relationship between constitutional interpretation and constitutional alteration as manifested by the jurisprudence of Justice Callinan of the High Court of Australia. It discusses the connection between originalism and respect for the role of the people in amending the Constitution. In doing so it considers how the High Court has dealt with the significance of referenda, and in particular failed referenda, when interpreting the Constitution. It also considers how the drawing of implications from the Constitution may be affected by an originalist approach that is tied to the fundamental role of the people in approving constitutional change.

constitutional interpretation, originalism, constitutional alteration, High Court, jurisprudence, referendum, constitutional implications, constitutional rigidity, federalism, policy, implied freedom of political communication

Abstract:
This article analyses and compares the operation of the powers of two Australian parliamentary upper Houses, the Senate and the New South Wales Legislative Council, to require the Executive to produce state papers and to compel Ministers and public servants to give evidence to parliamentary committees. It considers the legitimacy of claims for privilege and analyses the operation of the recent NSW procedure of using an 'independent legal arbiter' to assess disputed claims of privilege. It also addresses the issue of whether a House of a federal Parliament can compel the attendance of a Member of the other House or a Minister of a State Parliament, or vice versa.

Parliament, Executive, Upper House, Senate, Legislative Council, responsible government, executive accountability, privilege, public interest immunity, legal professional privilege, commercial confidentiality, Cabinet confidentiality, collective ministerial responsibility, cabinet documents

Abstract:
While Australia's colonial links with the United Kingdom were largely terminated by the Imperial Conferences of the 1920s and the Statute of Westminster 1931, the Australian States remained 'self-governing colonial dependencies of the British Crown' until the Australia Acts 1986 came into force. The States deliberately retained their links with the United Kingdom as a counter-balance to Commonwealth power. They believed that the British Government was politically disinterested in State matters and acted merely as the formal channel of communication in State matters.

This belief was proved to be incorrect in the 1970s when the British Government exercised independent discretion in relation to the appointment and removal of State Governors, State petitions to the Privy Council and reserved State Bills. The States were spurred on by this revelation to seek to terminate their residual links with the United Kingdom, but only if they could directly advise the Queen. This paper describes the struggle for the decolonisation of the Australian States. It then discusses two important issues that arise as a result of this process of decolonisation. The first is the fundamental question of with whom sovereignty lies in Australia now that the Westminster Parliament no longer exercises legislative sovereignty over Australia. The second issue is the effect of decolonisation on the status of the Queen in Australia. Is there only one Crown with respect to Australia, or is Her Majesty the Queen of each State?

Australia, United Kingdom, residual links, Australia Acts 1986, Statute of Westminster 1931, sovereignty, decolonisation, Crown, Queen of Australia, Queen of the United Kingdom, Constitution, independence, legal history

Abstract:
The Northern Territory is once again considering the prospect of statehood. It has issued a report that considers what might be included in a proposed Constitution for the new State. This article focuses on three aspects. First, it analyses the constitutional means by which a new State can be admitted to the federation. Secondly, it addresses the question of whether the new Constitution could be completely entrenched, including the entrenchment of Aboriginal land rights. Finally, it considers the question of whether there needs to be a Governor for the new State and whether the the Governor (or Chief Executive Officer, however named) must be appointed by the Queen.

Northern Territory, Constitution, statehood, admission of new states, conditions upon admission of new states, constitutional entrenchment, manner and form, land rights, Governor, Crown, Australia Acts 1986

Abstract:
This article addresses the misconceptions and misunderstandings that surround the meaning of references to "the Crown". It focuses on the divisibility of the Crown and the criteria for the creation of a new Crown in self-governing colonies, dependencies and independent Commonwealth nations. It places the Crown within the context of reponsible government, identifying the capacity in which the Queen acts by reference to the source of ministerial advice to the Queen and to whom those Ministers are responsible. It criticises the House of Lords' analysis of the divisibility of the Crown in the Quark Fishing case with respect to British Overseas Territories and discusses the ramification of such reasoning for other polities, such as Scotland.

Crown, Queen, United Kingdom, responsible government, British Overseas Territories, South Georgia, Australian States, Canada, Scotland, Colonies, Executive Government, Constitution

Abstract:
This paper considers the constitutional and practical constraints upon reforming electoral campaign funding in Australia. It addresses the banning or capping of political donations, the limiting of campaign expenditure and the expansion of public funding of political parties. In doing so, it draws on the experience of the United States, Canada, the United Kingdom, New Zealand and Germany. It examines the constraints imposed by the freedom of political communication implied from the Australian Constitution and the application of any constitutional principle of equality as well as the difficulty for a State in reforming campaign financing in a manner that does not unconstitutionally affect other jurisdictions within the federation. It also addresses the practical problems involved in defining political donations and expenditure, preventing avoidance and establishing a system that is effective and administratively workable.

political donations, campaign financing and expenditure limits, public funding of political parties, political advertising, elections, representative government, freedom of speech and political communication, Australia, UK, Germany, NZ, Canada, USA

Abstract:
If a coup d'état, of necessity, overturns the rule of law, then it is both unusual and potentially self-defeating for a court to rule on its legality. That is why cases on coups are both rare and the object of fascination. How does a court of a country that has been subject to a coup d'état accommodate the strict application of the rule of law with recognition of the reality of a new governing regime and the serious risk to public safety that might flow from its judgment? To what extent does the 'doctrine of necessity' justify extra-constitutional action? This article discusses how the Fijian courts have dealt with these dilemmas.

coup d'état, reserve powers, doctrine of necessity, Constitution, extra-constitutional action, democracy, rule of law, military regimes, elections, dissolution of Parliament, dismissal of Prime Minister

Abstract:
The United Kingdom Government proposes to consult other Commonwealth nations about removing some of the discriminatory aspects of the rules concerning succession to the throne. This article considers the potential effect upon the Crown in Australia of British legislation changing the rules of succession to the throne. It addresses the question of who has the power to change the rules of succession with respect to the Crown in Australia and proposes a solution based on federal principles.

Crown, succession to throne, Queen, abdication, United Kingdom, Australia, discrimination, Statute of Westminster, Commonwealth of Nations, federalism, Australia Acts 1986

Abstract:
This article discusses the 2020 Summit and whether the way it was composed and run was conducive to achieving substantive outcomes. It considers matters such as the composition of the Summit, the number of participants, the battle between presentation and substance, the organisation of the Summit and the lessons for future occasions on which summits or conventions are held to debate issues of governance and propose reforms.

2020 Summit, constitutional conventions, constitutional reform, governance, republic

Abstract:
When criticism is made of the operation of the federal system in Australia, the answer often proposed is 'regionalism'. Sometimes what is meant is the introduction of a fourth tier of regional governments, but more often what is proposed is the abolition of State and local governments and the creation instead of a two-tiered system of national and regional governments. A third alternative that has been raised is the creation of a number of new States so that each region becomes a State, as this may be constitutionally easier to achieve than the abolition of the existing states. This article examines these various proposals, assessing whether they are likely to achieve their purported aims and raising the many practical problems that would arise if they were to be implemented. It ends by noting the difficulty in assessing regionalism proposals due to their lack of clarity and detail and concludes that the case for regionalism as an alternative to federalism or as a means of reforming it has not yet been made out.

federalism, regionalism, tiers of government, fiscal federalism, new States, abolition of States, referendum

Abstract:
Federal systems of government operate best when there is a balance between competition and co-operation. Some matters need to be dealt with in a uniform manner, but this does not necessarily require an expansion of central power. Using infrastructure provision as its focus, this article discusses alternative means of achieving uniform outcomes such as State references of matters to the Commonwealth, co-operative legislative schemes, mutual recognition and framework laws. It then addresses what constitutional changes are needed to facilitate co-operative federalism.

federalism, infrastructure, uniform legislation, co-operative schemes, mutual recognition, constitutional reform, exchange of powers, framework laws

Abstract:
If Australia were to become a republic with a directly elected head of state, how should the powers of the head of state be constrained to prevent him or her becoming a rival to the Prime Minister? This paper notes proposals to codify the head of state's reserve powers, but suggests an alternative approach of limiting the circumstances in which those powers might be exercised by undertaking other reforms. These include: fixed term Parliaments, the removal of the power of the Senate to block supply, the appointment of the Prime Minister by the House of Representatives, mechanisms for the summoning and recall of the House of Representatives from adjournment or prorogation and the removal of any discretion regarding assent to Bills. Such reforms would remove most of the scope for the exercise of the reserve powers while still leaving a small amount of discretion to deal with emergencies.

republic, constitutional reform, reserve powers, codification, powers of head of state, dissolution of Parliament, prorogation, summoning of Parliament, dismissal of Prime Minister, royal assent, powers of upper houses, blocking supply, appointment of Prime Minister, fixed term Parliaments