This handbook provides a toolbox of definitions and typologies to develop a theory of multilevel ... more This handbook provides a toolbox of definitions and typologies to develop a theory of multilevel constitutionalism and subnational constitutions. The volume examines systems with subnational entities that have full subnational constituent autonomy and systems where subnational constituent powers, while claimed by subnational governments, are incomplete or non-existent. Understanding why complete subnational constituent power exists or is denied sheds significant light on the status and functioning of subnational constitutions. The book deals with questions of how constitutions at multiple levels of a political system can co-exist and interact. The term ‘multilevel constitutionalism’, recognized as explaining how a supranational European constitution can exist alongside those of the Member States, is now used to capture dynamics between constitutions at the national, subnational and, where applicable, supranational levels. Broad in scope, the book encompasses many different types of multi-tiered systems world-wide to map the possible meanings, uses and challenges of subnational or state constitutions in a variety of political and societal contexts. The book develops the building blocks of an explanatory theory of subnational constitutionalism and as such will be an essential reference for all those interested in comparative constitutional law, federalism and governance.
The Constitution of the Commonwealth of Australia examines the body of constitutional jurispruden... more The Constitution of the Commonwealth of Australia examines the body of constitutional jurisprudence in an original and rigorous yet accessible way. It begins by exploring the historical and intellectual context of ideas surrounding the Constitution's inception, and closely examines its text, structure, principles and purposes in that light. The book then unpacks and critically analyses the High Court's interpretation of the Constitution in a manner that follows the Constitution's own logic and method of organisation. Each topic is defined through detailed reference to the existing case law, which is set out historically to facilitate an appreciation of the progressive development of constitutional doctrine since the Constitution came into force in 1901. The Constitution of the Commonwealth of Australia provides an engaging and distinctive treatment of this fundamental area of law. It is an excellent book for anyone seeking to understand the significance and interpretation of the Constitution.
Table of Contents
1. Australian federalism: past, present and future tense Gabrielle Appleby,... more Table of Contents
1. Australian federalism: past, present and future tense Gabrielle Appleby, Nicholas Aroney and Thomas John
Part I. The Federal-State Balance:
2. The federal balance Stephen Gageler
3. The incredible shrinking Federation: voyage to a singular state? The Hon. Chief Justice Robert French AC
4. A sketch of the modern Australian Federation The Hon. Chief Justice Paul de Jersey AC
5. The still reluctant state: Western Australia and the conceptual foundations of Australian federalism Augusto Zimmermann
6. The division of powers in federal systems: comparative lessons for Australia Greg Taylor
Part II. Instituting Structural Reform: Comparative Perspectives:
7. Reforming German federalism Arthur B. Gunlicks
8. Polyphonic federalism: the United States experience Robert A. Schapiro
9. The rise of coercive federalism in the United States: dynamic change with little formal reform John Kincaid
10. The bargaining game: Canada as a new model of federal governance Thomas O. Hueglin
11. 'Bis hierher sollst du kommen und nicht weiter': the German constitutional court and the boundaries of the European integration process Cornelia Koch
Part III. Federalism and Multi-ethnic Societies:
12. Dynamics of federalism: a comparative analysis of recent developments in federations and countries in transition to federalism Thomas Fleiner
13. Religious identities: testing the underlying preconceptions of Canadian federalism? Jean-François Gaudreault-DesBiens
14. Foedus pacificum: a response to ethnic regionalism within nation states Suri Ratnapala
15. Federal diversity in Australia: a counter narrative Nicholas Aroney, Scott Prasser and Alison Taylor
Part IV. Fiscal Federalism:
16. Fiscal federalism in Canada: principles, practices, problems Robin Boadway
17. Fiscal federalism: then and now Brian Galligan
18. Fiscal decentralisation and macroeconomic performance in Australia Philip Bodman
Part V. Reforming Australia's Federal System:
19. Escaping purgatory: public opinion and the future of Australia's federal system A. J. Brown
20. The Rudd reforms and the future of Australian federalism Alan Fenna and Geoff Anderson
21. Co-operative arrangements in comparative perspective Cheryl Saunders
22. Federalism and the Australian judicial system – back to the future: the autochthonous expedient and other devices The Hon. Justice Margaret White
23. Federalism in Australia: gazing in the crystal ball of constitutional reform Anne Twomey.
By analysing original sources and evaluating conceptual frameworks, Nicholas Aroney discusses the... more 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.
In February 2008, the Archbishop of Canterbury, Dr Rowan Williams, delivered a public lecture in ... more In February 2008, the Archbishop of Canterbury, Dr Rowan Williams, delivered a public lecture in which he stated that it "seem[ed] unavoidable" that certain aspects of Islamic law (Shari'a) would be recognized and incorporated into British law. The comments provoked outrage from sections of the public who viewed any recognition of Shari'a law in Britain with alarm. In July 2008 Lord Phillips, Lord Chief Justice of England and Wales, weighed into the fray. He praised the Archbishop's speech and gave qualified support for Shari'a principles to govern certain family and civil disputes.
Responding to the polarised debate that followed these lectures, this is a collection of short essays written by distinguished and prominent scholars addressing the question of the accommodation of Shari'a within the legal systems of the liberal-democratic West. The matters raised in the two 2008 lectures provide a springboard for lively discussion, criticism and debate on both the specific question of religious/cultural accommodation by the law and the wider issues of multiculturalism, equality before the law and the desirability of parallel jurisdictions for particular faith communities.
Leading scholars from a range of countries and academic disciplines, and representing different political viewpoints and faith traditions explore the complex issues surrounding the legal recognition of religious faith in a multicultural society.
The volume aims to stimulate further thought on a complex issue, and to open up new pathways for policymakers and civil society institutions grappling with the relationship between Shari'a and Western legal systems.
"We live in an elective dictatorship, absolute in theory, if hitherto thought tolerable in practi... more "We live in an elective dictatorship, absolute in theory, if hitherto thought tolerable in practice."
These words were used by Lord Hailsham, a veteran Conservative politician in Britain, to describe the reality of government in his country in 1976. The British Parliament, he added, was controlled by a 'government machine' and debate in it was becoming 'a ritual dance, sometimes interspersed with catcalls'.
Today, Hailsham's words perhaps carry even greater force, not only in Britain but also in Australia, Canada and New Zealand, three other western democracies that adopted the Westminster parliamentary system. If Australians, Canadians and New Zealanders are, like Britons, living under 'elective dictatorships' then how can their elected, single-party 'government machines' be kept in check?
That is the key question examined in this book. Political theorists of the past claimed that the upper houses, or 'houses of review', of bicameral Westminster-style parliaments-Britain's House of Lords, the Australian Senate, the Australian State Legislative Councils-offered a solution because they prevented governments from imposing their will upon their peoples without restraint.
That, at least, was the nineteenth-century theory. But what is the twenty-first-century reality?
This book contains chapters from twenty-one leading international scholars and politicians on the history, the recent performance and the future of upper houses of parliament in Australia, Canada, the United Kingdom and the United States.
Contributors include:
The Hon. Bill Hayden, AC, Former Governor-General of Australia
Professor John Uhr, Australian National University
Professor Geoffrey Brennan, Australian National University
Dr. Meg Russell, Constitution Unit, University College London
Mr. Harry Evans, Clerk of the Australian Senate
Senator George Brandis, SC
Senator John Hogg
Professor Paul G. Thomas, University of Manitoba
Professor David C. Docherty, Wilfrid Laurier University
Mr. Graeme Starr
Dr. Bruce Stone, University of Western Australia
Professor Brian Costar, Swinburne University
Dr. Clement Macintyre, University of Adelaide
Professor John Williams, University of Adelaide
Hon. Justice B.H. McPherson, CBE, Former Judge of Appeal of the Supreme Court of Qld
Dr. Janet Ransley, Griffith University
Professor Gerard Carney, Bond University
Emeritus Professor Colin A. Hughes, University of Queensland
In recent years, the decisions and methods of the High Court of Australia have been the subject o... more In recent years, the decisions and methods of the High Court of Australia have been the subject of intense scrutiny and sometimes harsh criticism. This book uses the landmark Freedom of Speech cases decided by the High Court since 1992 to analyse the nature of judicial review. Although he is sympathetic towards the results the court achieved, he believes that ultimately their reasoning cannot be sustained.
Federal forms of government have a lineage reaching deep into the Middle Ages and classical antiq... more Federal forms of government have a lineage reaching deep into the Middle Ages and classical antiquity. Federalism also has an important historical relationship with Christianity, especially Reformed Christianity. The story of the development of federalism runs in three intermingling streams. The first of these streams is legal and is particularly concerned with the institution of the international treaty. The second stream is political and particularly concerns the institution of the confederation. The third stream is religious and particularly concerns the institution of the covenant. This chapter offers an archaeology of federalism based on an investigation of each of these three streams. As will be seen, the three streams intermingle so much that they often become virtually indistinguishable, for federalism is simultaneously a profoundly legal, political, and religious phenomenon.
When the Charter of Human Rights and Responsibilities Act was enacted in 2006 it was claimed that... more When the Charter of Human Rights and Responsibilities Act was enacted in 2006 it was claimed that the Act would protect the rights of all persons, whatever their gender, age, disability, income, background or religion. Purporting to follow the International Covenant of Civil and Political Rights, the Charter proclaimed the right of every person to "freedom of thought, conscience, religion and belief", including the "freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private". Despite the assurances of the Victorian Charter, however, many people of religious faith in Australia feel that their freedom to practice their religion is under threat – no less in Victoria than elsewhere in the country. Moreover, the principal concern articulated by religious believers is a sense that it is the state and its agencies, not other religious believers, that poses the greatest threat to freedom of religion. If it is one of the purposes of the liberal democratic state to ensure the peaceful coordination and flourishing of different groups, this is not a very promising state of affairs.In this chapter, written for a forthcoming collection on the impact of the Victorian Charter of Human Rights, we interrogate the state of religious freedom in Victoria, focusing on the threats that it faces, both manifested and perceived. The chapter begins by sketching the various religious freedom protections that exist in Australian law and note legislation, especially in Victoria, that has raised religious liberty concerns – anti-discrimination, anti-vilification and abortion law in particular. The chapter then surveys the case-law under the Charter. Here we find that the Charter has played virtually no substantive role in protecting freedom of religion. Instead, anti-discrimination law has been increasingly prioritised. Lastly, we offer an account of three recent reviews of Victorian law as they relate to religion. We find that a contest has occurred, primarily between religious believers and organisations on one hand, and anti-discrimination agencies and human rights advocates on the other, over the exact boundaries to be laid down in state law between religious freedom and other state interests. We argue that an underlying pattern is discernible, whereby a certain image of liberal citizenship is progressively imposed upon persons, groups and organisations whose religious convictions, practices or identities are deemed to be recalcitrantly non-liberal. We conclude that, as a result, religious freedom has become a second-class right in Victoria. Managing serious and growing pluralism, we argue, requires deeper attention to fundamental principles of religious liberty.
This handbook provides a toolbox of definitions and typologies to develop a theory of multilevel ... more This handbook provides a toolbox of definitions and typologies to develop a theory of multilevel constitutionalism and subnational constitutions. The volume examines systems with subnational entities that have full subnational constituent autonomy and systems where subnational constituent powers, while claimed by subnational governments, are incomplete or non-existent. Understanding why complete subnational constituent power exists or is denied sheds significant light on the status and functioning of subnational constitutions. The book deals with questions of how constitutions at multiple levels of a political system can co-exist and interact. The term ‘multilevel constitutionalism’, recognized as explaining how a supranational European constitution can exist alongside those of the Member States, is now used to capture dynamics between constitutions at the national, subnational and, where applicable, supranational levels. Broad in scope, the book encompasses many different types of multi-tiered systems world-wide to map the possible meanings, uses and challenges of subnational or state constitutions in a variety of political and societal contexts. The book develops the building blocks of an explanatory theory of subnational constitutionalism and as such will be an essential reference for all those interested in comparative constitutional law, federalism and governance.
The Constitution of the Commonwealth of Australia examines the body of constitutional jurispruden... more The Constitution of the Commonwealth of Australia examines the body of constitutional jurisprudence in an original and rigorous yet accessible way. It begins by exploring the historical and intellectual context of ideas surrounding the Constitution's inception, and closely examines its text, structure, principles and purposes in that light. The book then unpacks and critically analyses the High Court's interpretation of the Constitution in a manner that follows the Constitution's own logic and method of organisation. Each topic is defined through detailed reference to the existing case law, which is set out historically to facilitate an appreciation of the progressive development of constitutional doctrine since the Constitution came into force in 1901. The Constitution of the Commonwealth of Australia provides an engaging and distinctive treatment of this fundamental area of law. It is an excellent book for anyone seeking to understand the significance and interpretation of the Constitution.
Table of Contents
1. Australian federalism: past, present and future tense Gabrielle Appleby,... more Table of Contents
1. Australian federalism: past, present and future tense Gabrielle Appleby, Nicholas Aroney and Thomas John
Part I. The Federal-State Balance:
2. The federal balance Stephen Gageler
3. The incredible shrinking Federation: voyage to a singular state? The Hon. Chief Justice Robert French AC
4. A sketch of the modern Australian Federation The Hon. Chief Justice Paul de Jersey AC
5. The still reluctant state: Western Australia and the conceptual foundations of Australian federalism Augusto Zimmermann
6. The division of powers in federal systems: comparative lessons for Australia Greg Taylor
Part II. Instituting Structural Reform: Comparative Perspectives:
7. Reforming German federalism Arthur B. Gunlicks
8. Polyphonic federalism: the United States experience Robert A. Schapiro
9. The rise of coercive federalism in the United States: dynamic change with little formal reform John Kincaid
10. The bargaining game: Canada as a new model of federal governance Thomas O. Hueglin
11. 'Bis hierher sollst du kommen und nicht weiter': the German constitutional court and the boundaries of the European integration process Cornelia Koch
Part III. Federalism and Multi-ethnic Societies:
12. Dynamics of federalism: a comparative analysis of recent developments in federations and countries in transition to federalism Thomas Fleiner
13. Religious identities: testing the underlying preconceptions of Canadian federalism? Jean-François Gaudreault-DesBiens
14. Foedus pacificum: a response to ethnic regionalism within nation states Suri Ratnapala
15. Federal diversity in Australia: a counter narrative Nicholas Aroney, Scott Prasser and Alison Taylor
Part IV. Fiscal Federalism:
16. Fiscal federalism in Canada: principles, practices, problems Robin Boadway
17. Fiscal federalism: then and now Brian Galligan
18. Fiscal decentralisation and macroeconomic performance in Australia Philip Bodman
Part V. Reforming Australia's Federal System:
19. Escaping purgatory: public opinion and the future of Australia's federal system A. J. Brown
20. The Rudd reforms and the future of Australian federalism Alan Fenna and Geoff Anderson
21. Co-operative arrangements in comparative perspective Cheryl Saunders
22. Federalism and the Australian judicial system – back to the future: the autochthonous expedient and other devices The Hon. Justice Margaret White
23. Federalism in Australia: gazing in the crystal ball of constitutional reform Anne Twomey.
By analysing original sources and evaluating conceptual frameworks, Nicholas Aroney discusses the... more 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.
In February 2008, the Archbishop of Canterbury, Dr Rowan Williams, delivered a public lecture in ... more In February 2008, the Archbishop of Canterbury, Dr Rowan Williams, delivered a public lecture in which he stated that it "seem[ed] unavoidable" that certain aspects of Islamic law (Shari'a) would be recognized and incorporated into British law. The comments provoked outrage from sections of the public who viewed any recognition of Shari'a law in Britain with alarm. In July 2008 Lord Phillips, Lord Chief Justice of England and Wales, weighed into the fray. He praised the Archbishop's speech and gave qualified support for Shari'a principles to govern certain family and civil disputes.
Responding to the polarised debate that followed these lectures, this is a collection of short essays written by distinguished and prominent scholars addressing the question of the accommodation of Shari'a within the legal systems of the liberal-democratic West. The matters raised in the two 2008 lectures provide a springboard for lively discussion, criticism and debate on both the specific question of religious/cultural accommodation by the law and the wider issues of multiculturalism, equality before the law and the desirability of parallel jurisdictions for particular faith communities.
Leading scholars from a range of countries and academic disciplines, and representing different political viewpoints and faith traditions explore the complex issues surrounding the legal recognition of religious faith in a multicultural society.
The volume aims to stimulate further thought on a complex issue, and to open up new pathways for policymakers and civil society institutions grappling with the relationship between Shari'a and Western legal systems.
"We live in an elective dictatorship, absolute in theory, if hitherto thought tolerable in practi... more "We live in an elective dictatorship, absolute in theory, if hitherto thought tolerable in practice."
These words were used by Lord Hailsham, a veteran Conservative politician in Britain, to describe the reality of government in his country in 1976. The British Parliament, he added, was controlled by a 'government machine' and debate in it was becoming 'a ritual dance, sometimes interspersed with catcalls'.
Today, Hailsham's words perhaps carry even greater force, not only in Britain but also in Australia, Canada and New Zealand, three other western democracies that adopted the Westminster parliamentary system. If Australians, Canadians and New Zealanders are, like Britons, living under 'elective dictatorships' then how can their elected, single-party 'government machines' be kept in check?
That is the key question examined in this book. Political theorists of the past claimed that the upper houses, or 'houses of review', of bicameral Westminster-style parliaments-Britain's House of Lords, the Australian Senate, the Australian State Legislative Councils-offered a solution because they prevented governments from imposing their will upon their peoples without restraint.
That, at least, was the nineteenth-century theory. But what is the twenty-first-century reality?
This book contains chapters from twenty-one leading international scholars and politicians on the history, the recent performance and the future of upper houses of parliament in Australia, Canada, the United Kingdom and the United States.
Contributors include:
The Hon. Bill Hayden, AC, Former Governor-General of Australia
Professor John Uhr, Australian National University
Professor Geoffrey Brennan, Australian National University
Dr. Meg Russell, Constitution Unit, University College London
Mr. Harry Evans, Clerk of the Australian Senate
Senator George Brandis, SC
Senator John Hogg
Professor Paul G. Thomas, University of Manitoba
Professor David C. Docherty, Wilfrid Laurier University
Mr. Graeme Starr
Dr. Bruce Stone, University of Western Australia
Professor Brian Costar, Swinburne University
Dr. Clement Macintyre, University of Adelaide
Professor John Williams, University of Adelaide
Hon. Justice B.H. McPherson, CBE, Former Judge of Appeal of the Supreme Court of Qld
Dr. Janet Ransley, Griffith University
Professor Gerard Carney, Bond University
Emeritus Professor Colin A. Hughes, University of Queensland
In recent years, the decisions and methods of the High Court of Australia have been the subject o... more In recent years, the decisions and methods of the High Court of Australia have been the subject of intense scrutiny and sometimes harsh criticism. This book uses the landmark Freedom of Speech cases decided by the High Court since 1992 to analyse the nature of judicial review. Although he is sympathetic towards the results the court achieved, he believes that ultimately their reasoning cannot be sustained.
Federal forms of government have a lineage reaching deep into the Middle Ages and classical antiq... more Federal forms of government have a lineage reaching deep into the Middle Ages and classical antiquity. Federalism also has an important historical relationship with Christianity, especially Reformed Christianity. The story of the development of federalism runs in three intermingling streams. The first of these streams is legal and is particularly concerned with the institution of the international treaty. The second stream is political and particularly concerns the institution of the confederation. The third stream is religious and particularly concerns the institution of the covenant. This chapter offers an archaeology of federalism based on an investigation of each of these three streams. As will be seen, the three streams intermingle so much that they often become virtually indistinguishable, for federalism is simultaneously a profoundly legal, political, and religious phenomenon.
When the Charter of Human Rights and Responsibilities Act was enacted in 2006 it was claimed that... more When the Charter of Human Rights and Responsibilities Act was enacted in 2006 it was claimed that the Act would protect the rights of all persons, whatever their gender, age, disability, income, background or religion. Purporting to follow the International Covenant of Civil and Political Rights, the Charter proclaimed the right of every person to "freedom of thought, conscience, religion and belief", including the "freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private". Despite the assurances of the Victorian Charter, however, many people of religious faith in Australia feel that their freedom to practice their religion is under threat – no less in Victoria than elsewhere in the country. Moreover, the principal concern articulated by religious believers is a sense that it is the state and its agencies, not other religious believers, that poses the greatest threat to freedom of religion. If it is one of the purposes of the liberal democratic state to ensure the peaceful coordination and flourishing of different groups, this is not a very promising state of affairs.In this chapter, written for a forthcoming collection on the impact of the Victorian Charter of Human Rights, we interrogate the state of religious freedom in Victoria, focusing on the threats that it faces, both manifested and perceived. The chapter begins by sketching the various religious freedom protections that exist in Australian law and note legislation, especially in Victoria, that has raised religious liberty concerns – anti-discrimination, anti-vilification and abortion law in particular. The chapter then surveys the case-law under the Charter. Here we find that the Charter has played virtually no substantive role in protecting freedom of religion. Instead, anti-discrimination law has been increasingly prioritised. Lastly, we offer an account of three recent reviews of Victorian law as they relate to religion. We find that a contest has occurred, primarily between religious believers and organisations on one hand, and anti-discrimination agencies and human rights advocates on the other, over the exact boundaries to be laid down in state law between religious freedom and other state interests. We argue that an underlying pattern is discernible, whereby a certain image of liberal citizenship is progressively imposed upon persons, groups and organisations whose religious convictions, practices or identities are deemed to be recalcitrantly non-liberal. We conclude that, as a result, religious freedom has become a second-class right in Victoria. Managing serious and growing pluralism, we argue, requires deeper attention to fundamental principles of religious liberty.
This paper seeks to understand the nature of the constitutional order of ‘One Country, Two System... more This paper seeks to understand the nature of the constitutional order of ‘One Country, Two Systems’ as practiced in the Hong Kong Special Administrative Region of the PRC in 1997-2019 from global and comparative perspectives. The paper consists of three main parts, followed by a concluding section. Part I develops a theoretical framework for studying constitutions involving multi-level governance of states. The framework amounts to a taxonomy of constitutions and constitutional orders, which include a wide array of constitutional and inter-state arrangements, ranging from alliance, confederation and federation to devolution and decentralisation. Part I also identifies the key aspects of any constitutional system of multilevel governance -- its formation, its institutions, its distribution of power, and its rules of amendment. Part II of this paper then studies the constitutional order of ‘One Country, Two systems’ in the case of the HKSAR of the PRC. It is mainly designed to provide factual details of the case of Hong Kong by focusing on the key aspects of the constitutional order of multi-level governance of the HKSAR. Part III of the paper draws on the theoretical framework in part I in order to analyse the case of the HKSAR. It seeks to understand the extent to which the Hong Kong case conforms to any particular model within the taxonomy developed in part I, as well as the extent to which relatively unique features that may not have counterparts elsewhere are present in the case of Hong Kong. Finally, the concluding section of this paper summarises our analysis of the case of the HKSAR in the light of the theoretical discussion in part I of this paper.
At its inception, the Australian federation was informed by a rich set of ideas about the nature ... more 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.
La Haute Cour joue plusieurs roles fondamentaux au sein du systeme federal australien. En plus de... more La Haute Cour joue plusieurs roles fondamentaux au sein du systeme federal australien. En plus de constituer la juridiction d’entree dans une serie de matieres – dont celles relatives a l’interpretation et l’application de la constitution, elle est la juridiction d’appel pour toutes les cours supremes des etats federes et les tribunaux federaux inferieurs. Ceci signifie que la Cour est l’arbitre final s’agissant des differends portant sur la constitutionnalite des lois issues tant de la federation que de ses etats. La Haute Cour est constituee de sept juges nommes par le gouvernement federal qui exercent leur mandat jusqu’a l’âge de 70 ans. Ce faisant, les juges exercent un pouvoir important et institutionnellement independant des composantes politiques du systeme. Dans ce contexte, la plupart des modifications constitutionnelles en Australie ont ete adoptees en reaction a la tendance qu’ont eu les gouvernements federes a outrepasser leurs pouvoirs constitutionnellement etablis. T...
Cosmopolitanism and Its Discontents: Rethinking Politics in the Age of Brexit and Trump, 2020
This chapter argues that Johannes Althusius had access to a number different renderings of cosmop... more This chapter argues that Johannes Althusius had access to a number different renderings of cosmopolitanism, including Christian a neo-Stoic varieties. However, despite his political theory dealing with supranational political bodies, Althusius highlights the priority of local political fellowships.
This paper seeks to understand the nature of the constitutional order of ‘One Country, Two System... more This paper seeks to understand the nature of the constitutional order of ‘One Country, Two Systems’ as practiced in the Hong Kong Special Administrative Region of the PRC in 1997-2019 from global and comparative perspectives. The paper consists of three main parts, followed by a concluding section. Part I develops a theoretical framework for studying constitutions involving multi-level governance of states. The framework amounts to a taxonomy of constitutions and constitutional orders, which include a wide array of constitutional and inter-state arrangements, ranging from alliance, confederation and federation to devolution and decentralisation. Part I also identifies the key aspects of any constitutional system of multilevel governance -- its formation, its institutions, its distribution of power, and its rules of amendment. Part II of this paper then studies the constitutional order of ‘One Country, Two systems’ in the case of the HKSAR of the PRC. It is mainly designed to provide factual details of the case of Hong Kong by focusing on the key aspects of the constitutional order of multi-level governance of the HKSAR. Part III of the paper draws on the theoretical framework in part I in order to analyse the case of the HKSAR. It seeks to understand the extent to which the Hong Kong case conforms to any particular model within the taxonomy developed in part I, as well as the extent to which relatively unique features that may not have counterparts elsewhere are present in the case of Hong Kong. Finally, the concluding section of this paper summarises our analysis of the case of the HKSAR in the light of the theoretical discussion in part I of this paper.
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Books by Nicholas Aroney
The volume examines systems with subnational entities that have full subnational constituent autonomy and systems where subnational constituent powers, while claimed by subnational governments, are incomplete or non-existent. Understanding why complete subnational constituent power exists or is denied sheds significant light on the status and functioning of subnational constitutions. The book deals with questions of how constitutions at multiple levels of a political system can co-exist and interact. The term ‘multilevel constitutionalism’, recognized as explaining how a supranational European constitution can exist alongside those of the Member States, is now used to capture dynamics between constitutions at the national, subnational and, where applicable, supranational levels. Broad in scope, the book encompasses many different types of multi-tiered systems world-wide to map the possible meanings, uses and challenges of subnational or state constitutions in a variety of political and societal contexts.
The book develops the building blocks of an explanatory theory of subnational constitutionalism and as such will be an essential reference for all those interested in comparative constitutional law, federalism and governance.
1. Australian federalism: past, present and future tense Gabrielle Appleby, Nicholas Aroney and Thomas John
Part I. The Federal-State Balance:
2. The federal balance Stephen Gageler
3. The incredible shrinking Federation: voyage to a singular state? The Hon. Chief Justice Robert French AC
4. A sketch of the modern Australian Federation The Hon. Chief Justice Paul de Jersey AC
5. The still reluctant state: Western Australia and the conceptual foundations of Australian federalism Augusto Zimmermann
6. The division of powers in federal systems: comparative lessons for Australia Greg Taylor
Part II. Instituting Structural Reform: Comparative Perspectives:
7. Reforming German federalism Arthur B. Gunlicks
8. Polyphonic federalism: the United States experience Robert A. Schapiro
9. The rise of coercive federalism in the United States: dynamic change with little formal reform John Kincaid
10. The bargaining game: Canada as a new model of federal governance Thomas O. Hueglin
11. 'Bis hierher sollst du kommen und nicht weiter': the German constitutional court and the boundaries of the European integration process Cornelia Koch
Part III. Federalism and Multi-ethnic Societies:
12. Dynamics of federalism: a comparative analysis of recent developments in federations and countries in transition to federalism Thomas Fleiner
13. Religious identities: testing the underlying preconceptions of Canadian federalism? Jean-François Gaudreault-DesBiens
14. Foedus pacificum: a response to ethnic regionalism within nation states Suri Ratnapala
15. Federal diversity in Australia: a counter narrative Nicholas Aroney, Scott Prasser and Alison Taylor
Part IV. Fiscal Federalism:
16. Fiscal federalism in Canada: principles, practices, problems Robin Boadway
17. Fiscal federalism: then and now Brian Galligan
18. Fiscal decentralisation and macroeconomic performance in Australia Philip Bodman
Part V. Reforming Australia's Federal System:
19. Escaping purgatory: public opinion and the future of Australia's federal system A. J. Brown
20. The Rudd reforms and the future of Australian federalism Alan Fenna and Geoff Anderson
21. Co-operative arrangements in comparative perspective Cheryl Saunders
22. Federalism and the Australian judicial system – back to the future: the autochthonous expedient and other devices The Hon. Justice Margaret White
23. Federalism in Australia: gazing in the crystal ball of constitutional reform Anne Twomey.
Responding to the polarised debate that followed these lectures, this is a collection of short essays written by distinguished and prominent scholars addressing the question of the accommodation of Shari'a within the legal systems of the liberal-democratic West. The matters raised in the two 2008 lectures provide a springboard for lively discussion, criticism and debate on both the specific question of religious/cultural accommodation by the law and the wider issues of multiculturalism, equality before the law and the desirability of parallel jurisdictions for particular faith communities.
Leading scholars from a range of countries and academic disciplines, and representing different political viewpoints and faith traditions explore the complex issues surrounding the legal recognition of religious faith in a multicultural society.
The volume aims to stimulate further thought on a complex issue, and to open up new pathways for policymakers and civil society institutions grappling with the relationship between Shari'a and Western legal systems.
These words were used by Lord Hailsham, a veteran Conservative politician in Britain, to describe the reality of government in his country in 1976. The British Parliament, he added, was controlled by a 'government machine' and debate in it was becoming 'a ritual dance, sometimes interspersed with catcalls'.
Today, Hailsham's words perhaps carry even greater force, not only in Britain but also in Australia, Canada and New Zealand, three other western democracies that adopted the Westminster parliamentary system. If Australians, Canadians and New Zealanders are, like Britons, living under 'elective dictatorships' then how can their elected, single-party 'government machines' be kept in check?
That is the key question examined in this book. Political theorists of the past claimed that the upper houses, or 'houses of review', of bicameral Westminster-style parliaments-Britain's House of Lords, the Australian Senate, the Australian State Legislative Councils-offered a solution because they prevented governments from imposing their will upon their peoples without restraint.
That, at least, was the nineteenth-century theory. But what is the twenty-first-century reality?
This book contains chapters from twenty-one leading international scholars and politicians on the history, the recent performance and the future of upper houses of parliament in Australia, Canada, the United Kingdom and the United States.
Contributors include:
The Hon. Bill Hayden, AC, Former Governor-General of Australia
Professor John Uhr, Australian National University
Professor Geoffrey Brennan, Australian National University
Dr. Meg Russell, Constitution Unit, University College London
Mr. Harry Evans, Clerk of the Australian Senate
Senator George Brandis, SC
Senator John Hogg
Professor Paul G. Thomas, University of Manitoba
Professor David C. Docherty, Wilfrid Laurier University
Mr. Graeme Starr
Dr. Bruce Stone, University of Western Australia
Professor Brian Costar, Swinburne University
Dr. Clement Macintyre, University of Adelaide
Professor John Williams, University of Adelaide
Hon. Justice B.H. McPherson, CBE, Former Judge of Appeal of the Supreme Court of Qld
Dr. Janet Ransley, Griffith University
Professor Gerard Carney, Bond University
Emeritus Professor Colin A. Hughes, University of Queensland
Papers by Nicholas Aroney
The volume examines systems with subnational entities that have full subnational constituent autonomy and systems where subnational constituent powers, while claimed by subnational governments, are incomplete or non-existent. Understanding why complete subnational constituent power exists or is denied sheds significant light on the status and functioning of subnational constitutions. The book deals with questions of how constitutions at multiple levels of a political system can co-exist and interact. The term ‘multilevel constitutionalism’, recognized as explaining how a supranational European constitution can exist alongside those of the Member States, is now used to capture dynamics between constitutions at the national, subnational and, where applicable, supranational levels. Broad in scope, the book encompasses many different types of multi-tiered systems world-wide to map the possible meanings, uses and challenges of subnational or state constitutions in a variety of political and societal contexts.
The book develops the building blocks of an explanatory theory of subnational constitutionalism and as such will be an essential reference for all those interested in comparative constitutional law, federalism and governance.
1. Australian federalism: past, present and future tense Gabrielle Appleby, Nicholas Aroney and Thomas John
Part I. The Federal-State Balance:
2. The federal balance Stephen Gageler
3. The incredible shrinking Federation: voyage to a singular state? The Hon. Chief Justice Robert French AC
4. A sketch of the modern Australian Federation The Hon. Chief Justice Paul de Jersey AC
5. The still reluctant state: Western Australia and the conceptual foundations of Australian federalism Augusto Zimmermann
6. The division of powers in federal systems: comparative lessons for Australia Greg Taylor
Part II. Instituting Structural Reform: Comparative Perspectives:
7. Reforming German federalism Arthur B. Gunlicks
8. Polyphonic federalism: the United States experience Robert A. Schapiro
9. The rise of coercive federalism in the United States: dynamic change with little formal reform John Kincaid
10. The bargaining game: Canada as a new model of federal governance Thomas O. Hueglin
11. 'Bis hierher sollst du kommen und nicht weiter': the German constitutional court and the boundaries of the European integration process Cornelia Koch
Part III. Federalism and Multi-ethnic Societies:
12. Dynamics of federalism: a comparative analysis of recent developments in federations and countries in transition to federalism Thomas Fleiner
13. Religious identities: testing the underlying preconceptions of Canadian federalism? Jean-François Gaudreault-DesBiens
14. Foedus pacificum: a response to ethnic regionalism within nation states Suri Ratnapala
15. Federal diversity in Australia: a counter narrative Nicholas Aroney, Scott Prasser and Alison Taylor
Part IV. Fiscal Federalism:
16. Fiscal federalism in Canada: principles, practices, problems Robin Boadway
17. Fiscal federalism: then and now Brian Galligan
18. Fiscal decentralisation and macroeconomic performance in Australia Philip Bodman
Part V. Reforming Australia's Federal System:
19. Escaping purgatory: public opinion and the future of Australia's federal system A. J. Brown
20. The Rudd reforms and the future of Australian federalism Alan Fenna and Geoff Anderson
21. Co-operative arrangements in comparative perspective Cheryl Saunders
22. Federalism and the Australian judicial system – back to the future: the autochthonous expedient and other devices The Hon. Justice Margaret White
23. Federalism in Australia: gazing in the crystal ball of constitutional reform Anne Twomey.
Responding to the polarised debate that followed these lectures, this is a collection of short essays written by distinguished and prominent scholars addressing the question of the accommodation of Shari'a within the legal systems of the liberal-democratic West. The matters raised in the two 2008 lectures provide a springboard for lively discussion, criticism and debate on both the specific question of religious/cultural accommodation by the law and the wider issues of multiculturalism, equality before the law and the desirability of parallel jurisdictions for particular faith communities.
Leading scholars from a range of countries and academic disciplines, and representing different political viewpoints and faith traditions explore the complex issues surrounding the legal recognition of religious faith in a multicultural society.
The volume aims to stimulate further thought on a complex issue, and to open up new pathways for policymakers and civil society institutions grappling with the relationship between Shari'a and Western legal systems.
These words were used by Lord Hailsham, a veteran Conservative politician in Britain, to describe the reality of government in his country in 1976. The British Parliament, he added, was controlled by a 'government machine' and debate in it was becoming 'a ritual dance, sometimes interspersed with catcalls'.
Today, Hailsham's words perhaps carry even greater force, not only in Britain but also in Australia, Canada and New Zealand, three other western democracies that adopted the Westminster parliamentary system. If Australians, Canadians and New Zealanders are, like Britons, living under 'elective dictatorships' then how can their elected, single-party 'government machines' be kept in check?
That is the key question examined in this book. Political theorists of the past claimed that the upper houses, or 'houses of review', of bicameral Westminster-style parliaments-Britain's House of Lords, the Australian Senate, the Australian State Legislative Councils-offered a solution because they prevented governments from imposing their will upon their peoples without restraint.
That, at least, was the nineteenth-century theory. But what is the twenty-first-century reality?
This book contains chapters from twenty-one leading international scholars and politicians on the history, the recent performance and the future of upper houses of parliament in Australia, Canada, the United Kingdom and the United States.
Contributors include:
The Hon. Bill Hayden, AC, Former Governor-General of Australia
Professor John Uhr, Australian National University
Professor Geoffrey Brennan, Australian National University
Dr. Meg Russell, Constitution Unit, University College London
Mr. Harry Evans, Clerk of the Australian Senate
Senator George Brandis, SC
Senator John Hogg
Professor Paul G. Thomas, University of Manitoba
Professor David C. Docherty, Wilfrid Laurier University
Mr. Graeme Starr
Dr. Bruce Stone, University of Western Australia
Professor Brian Costar, Swinburne University
Dr. Clement Macintyre, University of Adelaide
Professor John Williams, University of Adelaide
Hon. Justice B.H. McPherson, CBE, Former Judge of Appeal of the Supreme Court of Qld
Dr. Janet Ransley, Griffith University
Professor Gerard Carney, Bond University
Emeritus Professor Colin A. Hughes, University of Queensland