An Uncommon Court: How the High Court of Australia Has Undermined Australian Federalism

50 Pages Posted: 9 Jun 2008

See all articles by Nicholas Aroney

Nicholas Aroney

University of Queensland - TC Beirne School of Law

James Allan

The University of Queensland - T.C. Beirne School of Law

Abstract

The authors contend that Australia's High Court, in deciding federal distribution of powers cases over the last century, has created an end product that looks like one of A P Herbert's Uncommon Law mock hypothetical cases. These were sustained parodies of common law reasoning in which each step in the fictional judge's train of thought followed plausibly from what went before. And yet from such unexceptionable starting points the conclusions reached were ridiculous. The same general sort of analysis is here applied to the High Court's federalism jurisprudence, the fit being a surprisingly good one.

Keywords: federalism, federal powers, state powers, constitutional interpretation, Australia, High Court of Australia, Herbert, Engineers Case

Suggested Citation

Aroney, Nicholas and Allan, James, An Uncommon Court: How the High Court of Australia Has Undermined Australian Federalism. Sydney Law Review, Vol. 30, pp. 245-294, 2008 ; University of Queensland TC Beirne School of Law Research Paper No. 08-05. Available at SSRN: https://ssrn.com/abstract=1141122

Nicholas Aroney (Contact Author)

University of Queensland - TC Beirne School of Law ( email )

Brisbane 4072, Queensland
Australia
+61-(0)7-3365 3053 (Phone)

HOME PAGE: http://www.law.uq.edu.au/dr-nicholas-aroney

James Allan

The University of Queensland - T.C. Beirne School of Law ( email )

The University of Queensland
St Lucia
4072 Brisbane, Queensland 4072
Australia

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