The New Commonwealth Model of Constitutionalism: Theory and Practice (original) (raw)
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Reassessing the new Commonwealth model of constitutionalism
Icon-international Journal of Constitutional Law, 2010
Alternative Model?, 69 Mod. L. Rev. 7 (2006); the phrase "the dialogue model" has also gained currency. For clarification, in using my term, I did not intend to suggest any conceptual connection between the new model and Westminster-based parliamentary systems such that the model is only open to them, any more than I intended such a connection between the contrasting "American model" (which I argued was adopted by most post-1945 constitutions around the world) and countries in the Western hemisphere. The labels were selected for the historical facts of where the models were first-and, in the case of the new Commonwealth model, still only-employed. Although only very lightly wedded to my term, I explain in the course of the article why I think the second term is under-and the third over-inclusive. 3 These are the ACT Human Rights Act of 2004 and the Victorian Charter of Human Rights and Responsibilities of 2006. by guest on September 25, 2016 http://icon.oxfordjournals.org/ Downloaded from Reassessing the new Commonwealth model of constitutionalism by guest on September 25, 2016 http://icon.oxfordjournals.org/ Downloaded from by guest on September 25, 2016 http://icon.oxfordjournals.org/ Downloaded from Reassessing the new Commonwealth model of constitutionalism by guest on September 25, 2016
The Case for the New Commonwealth Model of Constitutionalism
2013
The article presents the normative case for the new Commonwealth model as a novel third way of organizing basic institutional arrangements in a democracy and an alternative to the conventional dichotomy of legal or political constitutionalism. In so doing, it engages with the latest contributions to the debate about the merits of judicial review, and argues that the new model radically and compellingly permits a form of "proportional representation" among the best arguments for and against the practice rather than the "warts-and-all" of the traditional either/or approach. In this way, the new model is to forms of constitutionalism what the mixed economy is to forms of economic organization: a distinct and appealing third way in between two purer but flawed extremes. Just as the mixed economy is a hybrid economic form combining the core benefits of capitalism and socialism while minimizing their well-known costs, so too the new model offers an alternative to the old choice of judicial supremacy or traditional parliamentary sovereignty by combining the strengths of each while avoiding their major weaknesses. Like the mixed economy's countering of the lopsided allocation of power under capitalism to markets and under socialism to planning, the new model counters legal and political constitutionalism's lopsided allocations of power to courts and legislatures respectively.
The New Commonwealth Model of 55 Constitutionalism: Theory and Practice
Journal of Scholarly Perspectives, 2013
Theory from Columbia and a J.D. from Yale Law School. He teaches constitutional law, comparative constitutional law, international human rights, European Union law and comparative law. Professor Gardbaum's scholarship focuses on comparative constitutional law, constitutional theory and federalism. His book The New Commonwealth Model of Constitutionalism (Cambridge University Press, 2013) develops the theory and explores the practice of a novel form of human rights protection in Canada, New Zealand and the United Kingdom. He was the keynote speaker at the 2009 Protecting Human Rights Conference in Australia, part of the debate in that country about adopting this new model. A book-length collection of his work on the comparative structure of constitutional rights was recently published by the European Research Center of Comparative Law.
International Journal of Constitutional Law (forthcoming, 2016) , 2016
Based on a republican theory of democracy as equally shared popular control drawn from Philip Pettit’s recent work, this article argues in favour of the ‘new commonwealth model of constitutionalism’ practiced in Canada, the UK and elsewhere. It claims that the emphasis that the new commonwealth model places on political agents in the rights-related dimensions of the legislative process corresponds with the republican account of rights as political claims but also that the constricted role played by judges under the model answers to a number of important republican concerns around contestation and the dispersal of power. In particular the article argues that the role of judges under the model can be understood as contributing to the gradual emergence of norms that are ‘commonly avowable’ or shareable, and to the refining of those norms over time, such that it enhances the control exercised by citizens over government. In this way the role of judges under the model – in contrast to that under outright legal constitutionalism – can be understood as enhancing democracy, where democracy is understood in this republican way.
The Commonwealth constitutional model or models?
International Journal of Constitutional Law, 2013
Stephen Gardbaum’s The New Commonwealth Model of Constitutionalism is a must-read in the growing literature on comparative constitutional law and deserves a broad international audience. My question is whether there is a single Commonwealth constitutional model, or, in reality, a set of Commonwealth constitutional models which share common features, but also differ in important respects that should matter to Gardbaum and others who want to understand the manner in which bills of rights are enforced in the Commonwealth jurisdictions under study, for both analytical and normative purposes. I see an important shift between Gardbaum’s original presentation of the abstract features of his model and the fully formed model presented in this book. This contrast raises a number of interesting analytical and normative questions that warrant careful examination. First, what forms do pre-enactment and post-judicial political rights review take? Second, how do different institutions interact with each other at the different stages of rights review?
An Australian Constitutional Experience
Cross Sections: The Bruce Hall Academic Journal, 2006
The Australian Constitution has been labelled at various times unsatisfactory, frustrating and ineffective. Australia’s experience with Constitutionalism rests, principally, on two foundations: Judicial review and Federalism, both entrenched in a written document. With reference to both the illusory notion of a supreme Parliament and the existence of limitations on legislative power pre Federation, this paper argues that a constitutionally protected Federation affords some protection to citizens, while judicial review ensures that Parliaments of the day do not step over the grant of authority given to them by their agents, the people. It is the conclusion of this paper that, far from being an unsatisfactory document, Australia’s Constitution provides sufficient powers to ensure effective democratic government while protecting the rights of the Courts, Parliament and People. Australia’s Constitution is a continuation of the historical progression from arbitrary and unlimited rule, to a system where the rule of law controls the exercise of power.
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.
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.