Commonwealth Power Over Higher Education: Implications and Realities (original) (raw)
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The constitution of a federal commonwealth: the making and meaning of the australian constitution
2011
By analysing original sources and evaluating conceptual frameworks, Nicholas Aroney discusses the idea proclaimed in the preamble to the Constitution that Australia is a federal commonwealth. Taking careful account of the influence which the American, Canadian and Swiss Constitutions had upon the framers of the Australian Constitution, the author shows how the framers wrestled with the problem of integrating federal ideas with inherited British traditions and their own experiences of parliamentary government. In so doing, the book explains how the Constitution came into being in the context of the groundswell of federal ideas then sweeping the English-speaking world. In advancing an original argument about the relationship between the formation of the Constitution, the representative institutions, configurations of power and amending formulas contained therein, fresh light is shed on the terms and structure of the Constitution and a range of problems associated with its interpretation and practical operation are addressed. nicholas aroney is a Reader in Law at the T. C. Beirne School of Law, University of Queensland, a member of the Australian Association of Constitutional Law and a fellow of the Centre for Public, International and Comparative Law at the University of Queensland.
The Malaise of Federalism: Comparative Reflections on Commonwealth?State Relations
Australian Journal of Public Administration, 2007
The High Court's decision in the 'Work Choices' case 1 expanding further the scope of the Commonwealth's enumerated powers is the latest reminder of the highly centralised nature of Australian federalism. The division of powers traditionally forming the essence of a federal system has become increasingly difficult to discern and the roles and responsibilities of the two levels of government have become entangled. While for a good part of Australia's history divided jurisdiction was deplored as an obstacle to progress in government, today the decay of the system is most likely to be lamented. Discussion of options for reform presupposes an understanding of the forces that have led to the present condition. This article examines the Australian experience in a broader comparative and historical perspective and suggests that those forces are endemic and substantial.
Heresy in the High Court? Federalism as a Constraint on Commonwealth Power
2013
Williams v Commonwealth of Australia is a landmark decision of the High Court on the scope of federal executive power in s 61 of the Constitution. The decision is also important for the interpretive methodology adopted by the Court. Notably, each judge based their understanding of s 61 upon federal readings of the Constitution. This methodology raises fresh questions about how the Constitution is to be interpreted, and whether Williams marks a break from orthodox understandings of that task. This article assesses the significance of Williams for constitutional interpretation in Australia, and whether it lays the foundation for a more robust protection of state interests by the High Court.
Submission to the Select Committee on the reform of the Australian Federation
Zimmermann a and Finlay L Submission to the Select Committee on the Reform of the Australian Federation Submission to the Senate Selection Committee, 2010
Australia acquired the system of responsible government from England and those of bicameral Parliament and federal distribution of powers from the United States, 7 thus establishing a federal system of responsible and representative government. The constitutional drafters favoured the federal system due to its recognised advantages of being able to promote democracy, protect the rights and liberties of citizen, and to prevent the concentration of power. 8 Ever since Australia has comprised a Federation of six States (New South Wales, Queensland, South Australia, Tasmania and Western Australia) and two self-governing Territories (Australian Capital Territory and Northern Territory). Each of them is endowed with its own constitution, parliament, government, and laws. Moreover, the High Court has acknowledged that, together with separation of powers and representative government, federalism comprises one of the main institutional pillars of the country"s constitutional order. In News Pty v Wills (1992) Deane and Toohey JJ argued that federalism is "one of the three main general doctrines of government which underlie the Constitution and are implemented by its provisions". 9 The Commonwealth of Australia is based on a symmetrical model of federalism, whereby each State maintains the same legal rights and responsibilities with the federal government. Aspects of the nation"s symmetry are found in section 7, which provides for equality of representation amongst the original States in the Senate, and section 51 (ii), restricting the power of the federal government over taxation "so as not to discriminate between States or parts of States". Further evidence of symmetry are found in sections 51 (iii) and 88, providing uniformity to bounties and custom duties throughout the nation. Finally, section 99 determines that "the Commonwealth shall not, by any law or regulation of trade, commerce, or revenue give preference to one State or any part thereof over another State or any part thereof".
Imagining a Federal Commonwealth: Australian Conceptions of Federalism, 1890–1901
Federal Law Review
28 History 78, describes him as 'the Erasmus of the nineteenth-century reformation in English historiography'. Freeman's 266 Federal Law Review Volume 30 ____________________________________________________________________________________ for many of the framers of the Australian Constitution when he described Freeman as the 'eminent historian' who had 'studied the most closely, and written the most exhaustively on federal government'. 5 Many other leading framers, such as John Quick and Robert Garran, relied on Freeman extensively, as did Richard Baker and Thomas Just. 6 In one of their characteristic exchanges, Edmund Barton and Isaac Isaacs traded scholarship derived from Freeman's Growth of the English Constitution. 7 A survey of citations in the Federal Convention Debates of the 1890s suggests that on issues of federalism Freeman was second in importance only to James Bryce. 8 Edward Freeman is one of the forgotten doctors of Australian federalism. So, where did the Australians derive their understandings about federalism, and how did they assimilate these ideas for their own purposes when drafting the Australian Constitution? In answer to the first question, much attention has rightly been given to James Bryce's classic The American Commonwealth, and in answer to the second question, attention has correctly been given, for instance, to John Quick and Robert Garran's magisterial Annotated Constitution of the Australian Commonwealth and William Harrison Moore's The Constitution of the Commonwealth of Australia. 9 However, Bryce was not the only source of federal ideas, and Moore, Quick and Garran were not his only Australian interpreters. 10 In a separate paper, I have sought to draw attention to the range of authors and sources that influenced Australian conceptions of _____________________________________________________________________________________ reputation was established by his monumental The History of the Norman Conquest of England, its Causes and its Results (1867-1879) 6 vols.
University of New South Wales Law Journal, 2020
This article argues that the Commonwealth’s non-statutory executive power should be interpreted using an ‘historical constitutional approach’, first developed by JWF Allison for the United Kingdom. Some argue that the non-statutory executive power should be informed by the Crown’s historical prerogative powers and the common law (the ‘common law view’), while the High Court has recognised an inherent ‘nationhood power’ sourced directly in section 61 of the Australian Constitution, that does not require reference to the common law or the prerogatives (the ‘inherent view’). Peter Gerangelos identified a potential jurisprudential shift after Gageler J seemingly adopted an historical approach in Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42. This article argues that interpreting section 61 through an historical constitutional lens would be in keeping with the origins, influences, and common law limitations on the development of the Crown’s powers ...
Debating the Nature and Ambit of the Commonwealth's Non-statutory Executive Power
The nature and ambit of the Commonwealth’s non-statutory executive power under s 61 of the Constitution is now the subject of heavy debate. The contest is between those who argue that s 61 should be interpreted consistently with Australia’s character and status as a modern and federal nation (‘the inherent view’), and those who give greater emphasis to Australia’s common law heritage and the role of the royal prerogative (‘the common law view’). This article critically analyses both these viewpoints, and considers whether there is scope for reconciling their core propositions. Drawing on the broader notion of the symbiotic relationship between the Constitution and the common law, and its application to the dynamic between s 61 and the prerogative, it is contended that a more balanced conception of the Commonwealth’s non-statutory executive power is achievable. It is argued that, if the supporters of the common law view accept that the Commonwealth’s non-statutory executive power may be released from the traditional limitations placed on the English Crown and thereby adapted to suit a modern and federal context, an indigenous version of the prerogative may be retained as the measure of the ambit of this power. An indigenous prerogative reconciles the core propositions of the inherent view and the common law view and therefore supports the principal contention of this article.
The New Commonwealth Model of Constitutionalism: Theory and Practice
2013
1. Introduction Part I. Theory: 2. What is the new Commonwealth model of constitutionalism and what is new about it? 3. The case for the new Commonwealth model 4. An internal theory of the new model Part II. Practice: 5. Canada 6. New Zealand 7. United Kingdom 8. Australia 9. General assessment and conclusions.
1 Australian federalism : past , present and future tense
2012
At its inception, the Australian federation was informed by a rich set of ideas about the nature of federalism, and a strong acceptance of both its necessity and its benefits. Today, over one hundred years later, this necessity and those benefits are under question – by Australian politicians, business leaders, professionals, academics and, most importantly, the Australian people. The title of this book suggests that federalism does have a future in Australia, but its chapters explain that it will only have an effective future if it is reformed and the reform is both well-informed and coherently designed.