The nexus clause: A peculiarly Australian obstacle (original) (raw)

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.

Australian electoral reform and two concepts of representation

2002

The most distinctive Australian contribution to institutional design is the construction of electoral systems. Before Federation, remote colonies were an ideal seedbed for radical ideas on representation. Those ideas appealed to a microcosmic concept of representation. Since Federation, politicians have mostly stressed the rival (and partly incompatible) principal-agent concept of representation. I analyse the work of E. J. Nanson (1850-1936; Professor of Mathematics, University of Melbourne, 1875-1922) in this context. Nanson was one of only two anglophones in the 19th century to understand social choice theory (the other being Lewis Carroll). His fundamental papers were written in what was then one of the smallest and most isolated anglophone universities in the world. Nanson's failure to influence Australian institutional design at the foundation of the Commonwealth, and the subsequent adoption of Nanson's recommendations for Senate elections, both throw light on the incompatible conceptions of representation. So does the 1983 amendment of Senate procedures.

Remembering Australian Constituent Power

Melbourne University Law Review, 2023

The constituent power of the Australian people has long been neglected. This article will turn to the transnational history of the Australian founding period to provide a clearer understanding of Australian constituent power. This history shows that the Australian framers adopted a version of constituent power borrowed from the American tradition of constituent power and which gives the people legal sovereignty to alter constitutional law outside of Parliament but in a way regulated by law. Remembering this constituent power tradition holds both conceptual and practical lessons for the way we understand Australia's constitutional order and the way that the Australian people exercise their constituent power to alter their constitutional order. In particular, it shows the importance of separating Australian constitution-making from ordinary, parliamentary politics. It therefore suggests that a fully-elected convention for drafting proposed constitutional amendments could revitalise the people's role in constitutional change. Furthermore, it also demonstrates the broader importance of theorising a constituent power tradition that allows the people to make constitutional law outside of Parliament but in a cooperative process regulated by ordinary law and institutions.

The Evolution of Constitutional Federalism in Australia: An Incomplete Contracts Approach

2003

The interest in, and the appeal of, fiscal federalism and fiscal decentralization have been increasing in recent years. At the same time many mature federations continue to evolve towards greater centralization, as Australia has evolved in the last one hundred years. The reasons for the evolution of fiscal federalism towards greater centralization remain unclear, and the traditional theories of fiscal federalism shed little light on the factors that might be important in this process. This paper suggests that the insight yielded by the new institutional economics-that the motivations and incentives of economic agents, and the options available to them, are influenced in a fundamental sense by the incompleteness of contracts-may throw considerable light on the evolution of federalism in Australia over the past one hundred years.

Rethinking the Parliamentary System: Contributions from the Australian Debate

Alberta Law Review

The author considers whether the parliamentary system is an effective institution by examining its capacity to handle its five traditional functions. Those Junctions are: maintaining the government, passing laws, controlling government expenses, monitoring the government of the day, and setting long range policies. She concludes that parliaments are incapable of performing these functions on a consistent basis. This incapacity stems from a variety of factors including party discipline, the passive nature of members of parliament, and the fact that there is no separation of powers in the parliamentary system. To remedy these shortcomings she calls for changes which are aimed at giving parliament greater independence from the executive branch. She notes that these changes may require a radical departure from traditional political theory in countries that have adopted parliamentary systems. However, the parliamentary system has not changed in over 300 years. If it is to serve its citiz...

Australian Constitutional Battlegrounds of the Twenty-first Century

2008

As creatures of our time, it is extremely difficult for us to believe that we are about to leave our accustomed temporal milieu, and enter a new century, a proposition as true in the field of constitutionalism as of any other area of human knowledge or activity. Thus, it is almost inconceivable to Australian constitutional lawyers that in two years time, Federation, the Engineers' case, the Dams case and Sir Anthony Mason all merely will be things that happened 'last century'. The important fin de siecle constitutional question, of course, concerns the fate of the Australian Constitution itself during this coming, Twenty-First century. Our present century saw the dramatic transformation of a highly de-centralised federation into a highly centralised quasi-federation. What will occur in a century where the pace of social change, whether in a political, technological or legal context, is certain to be even more rapid? This piece seeks briefly to examine the likely future o...

Mirrors , Mouthpieces , Mandates and Men of Judgement : Concepts of Representation in the Australian Federal Parliament

2000

Thanks to the Clerk of the Senate, I was able to spend some time in late 1996 as Honorary Senate Fellow exploring these issues with current members of the federal Parliament. Semistructured interviews were conducted with 14 members of federal Parliament in November and December 1996. Included in the sample were seven members of the House of Representatives and seven senators, of whom five were Liberal, one National Party, four Labor, two Democrat, one Green and one Independent. Half were male and half female and there was also a mix of other demographic characteristics, such as age and ethnicity, as well as a balance between newcomers and long-serving members or senators. Interviewees were asked what representation meant to them; their personal representational priorities; how they balanced the interests of majorities and minorities; whether there were groups which needed better representation and, if so, how this could be achieved. This paper reflects the range of views on represen...