The Future of Australian Federalism

At a time when the operation and reform of federal relations within Australia are squarely on the political agenda, this volume brings together eminent lawyers, economists and political scientists who explain, analyse and evaluate the theory and principles underpinning the Australian federal system. Topics covered include the High Court's approach to the interpretation of the Constitution and how this has influenced federal relations in practice; different forms of intergovernmental cooperative arrangements; fiscal relations between the Commonwealth and the states; and emergent ethno-cultural and socioeconomic diversity within the Australian federation. Comparative perspectives from Germany, America, Canada, Switzerland, India and the European Union provide unique prisms through which to view the operation of the Australian system and to contemplate its reform.

Gabrielle Appleby is a PhD candidate at the University of Adelaide researching the constitutional role of the Solicitor-General in Australia.

Nicholas Aroney is Professor of Constitutional Law at the Centre for Public, International and Comparative Law in the TC Beirne School of Law, University of Queensland.

Thomas John heads the Commonwealth Attorney-General Department's Private International Law Section.

Gabrielle Appleby, Nicholas Aroney and Thomas John

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First published 2012

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ISBN 978-1-107-00637-9 Hardback

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Contents

Notes on the contributors

Geoff Anderson who sadly passed away during the production of this book, was a Senior Lecturer in Politics and Public Policy at Flinders University, South Australia. His research interest was Australian federalism, on which he published a number of articles and book chapters. His career prior to his academic role spanned politics, the public service and private consultancy. He was Chief of Staff to John Bannon, the former Premier of South Australia.

Gabrielle Appleby is a PhD candidate at the University of Adelaide. She holds an undergraduate degree in law from the University of Queensland and a Masters from the University of Melbourne. She has published widely in the fields of Australian federalism and constitutional law, most recently Australian Public Law (2011) with Alexander Reilly, Wendy Lacey and Laura Grenfell.

Nicholas Aroney is Professor of Constitutional Law at the University of Queensland. He has written widely in public law, comparative constitutional law and legal theory, including The Constitution of a Federal Commonwealth (Cambridge, 2008) and Shari'a in the West (2010). In 2010 he was awarded an ARC Future Fellowship for his project ‘Reconceiving Australian federalism: Fundamental values, comparative models and constitutional interpretation’.

Robin Boadway holds the David Chadwick Smith Chair in Economics at Queen's University. He is President of the International Institute of Public Finance, Past-President of the Canadian Economics Association and Past-Editor of the Journal of Public Economics. He has written widely on fiscal federalism, most recently in the book Fiscal Federalism: Principles and Practice of Multiorder Governance (Cambridge, 2009) with Anwar Shah.

Philip Bodman is the Associate Dean, Academic in the Faculty of Business, Economics and Law, and an Associate Professor in Economics at the University of Queensland. He has written widely in the areas of macroeconomics, monetary, labour and public economics. Between 2008 and 2011 he was the lead Chief Investigator on an ARC Discovery Grant Project concerning the drivers of fiscal decentralisation and its effects on economic performance.

Sir Gerard Brennan was appointed President of the Administrative Appeals Tribunal and Administrative Review Council in 1976. He was appointed a foundation Judge of the Federal Court in 1977, a Justice of the High Court in 1981 and Chief Justice of Australia in 1995, retiring in 1998. He is a non-permanent Judge of the Court of Final Appeal of Hong Kong.

A. J. Brown is Professor of Public Law at Griffith Law School, Queensland. He has worked and consulted at all levels, and in all branches of government, and teaches, researches and advises across many areas of public accountability and public law. He is the foundation lead researcher in the ARC-funded Australian Constitutional Values Survey, and in 2011 published the judicial biography, Michael Kirby: Paradoxes & Principles.

Paul de Jersey is Chief Justice of Queensland, appointed to that position in 1998 following thirteen years' service as a Judge of the Supreme Court of Queensland. His bar practice from 1971 to 1985 included many appearances in constitutional cases before the High Court of Australia.

Alan Fenna is Professor of Politics at the John Curtin Institute of Public Policy, Curtin University, Western Australia. He writes on Australian and comparative federalism, public policy and economic policy. He is the author of Australian Public Policy and the co-author (with Thomas Hueglin) of Comparative Federalism: A Systematic Inquiry.

Thomas Fleiner is Professor for General Theory of State at the Distance University of Brig and President of the Curatorship of the Institute for European Constitutional Sciences of the Distance University Hagen Germany. From 1971 to 2008 he was Professor of the Law Faculty, University of Fribourg and from 1984 to 2008 he was the Director of the Institute of Federalism. He has researched and published widely, including in the areas of federalism, rule of law and the multicultural state; comparative administrative and constitutional law and political theory and philosophy.

Robert French is Chief Justice of the High Court of Australia. He was appointed to that office in September 2008. Prior to his appointment he had served as a Judge of the Federal Court of Australia from November 1986. He served as President of the Australian Association of Constitutional Law between 2001 and 2005.

Stephen Gageler commenced a five-year term as Solicitor-General of Australia in September 2008. He was admitted as a barrister and solicitor of the High Court in 1982 and as a barrister of the Supreme Court of New South Wales in 1989. Mr Gageler was appointed Senior Counsel in 2000. He is a graduate of the Australian National University and has post-graduate qualifications from Harvard University.

Brian Galligan is a Professor of Political Science at the University of Melbourne, and was previously a Professor in the Research School of Social Sciences at the Australian National University. He specialises in Australian and comparative constitutional politics, political economy and public policy. He is joint editor of the Oxford Companion to Australian Politics (2007) and Human Rights in Asia (2011).

Jean-François Gaudreault-DesBiens is Associate Dean, Research, and Canada Research Chair in North American and Comparative Juridical and Cultural Identities at the Faculty of Law of the University of Montreal. His most recent work focuses on the legal theory of federalism, on fundamental freedoms and on the anthropology of legal traditions.

Arthur B. Gunlicks is Emeritus Professor of Political Science, University of Richmond, Virginia. He has published widely in the areas of German federalism, German local government, and German political parties and party finance. He has also written a theme-oriented book comparing liberal democracies and the European Union.

Thomas O. Hueglin is a Professor of Political Science at Wilfrid Laurier University in Canada where he was the 2009/10 University Research Professor. His most recent book publications are Comparative Federalism: A Systematic Inquiry (2006) with Alan Fenna and Classical Debates for the 21st Century: Rethinking Political Thought (2008). His current research is focused on federalism and political theory.

Thomas John currently heads the Commonwealth Attorney-General Department's Private International Law Section. He holds law degrees from the University of Konstanz, Germany and the University of Queensland. His roles at the Attorney-General's Department, the Australian Government Solicitor, the Federal Parliament's Research Services and Queensland's Crown Law have given Thomas a particular expertise in conflict of law, constitutional and comparative law. He is a co-author of Australian Constitutional Law: Commentary and Cases (2007).

John Kincaid is the Robert B. and Helen S. Meyner Professor of Government and Public Service and Director of the Meyner Center for the Study of State and Local Government at Lafayette College, Easton, Pennsylvania, USA. He is Senior Editor of the Global Dialogue on Federalism, an elected fellow of the National Academy of Public Administration, and editor of the four-volume set Federalism (2011).

Cornelia Koch is a Senior Lecturer at the Adelaide Law School, the University of Adelaide. Born in Germany, she holds law degrees from both German and Australian universities and her research is informed by a comparative approach. Her major research interests are in Australian, German and comparative constitutional law, human rights and European Union law.

Scott Prasser is Professor of Public Policy and Executive Director of the Public Policy Institute at the Australian Catholic University. Professor Prasser has worked in senior research and advisory roles in the Commonwealth and state governments. In 2006 he published Royal Commissions and Public Inquiries in Australia and in 2009 was appointed to the Australian Law Reform Commission reference committee that reviewed the Commonwealth Royal Commissions Act 1902. In 2008, he co-edited with Nicholas Aroney and J. R. Nethercote Restraining Elective Dictatorship: The Upper House Solution? Professor Prasser is a graduate of the University of Queensland and Griffith University.

Suri Ratnapala is Professor of Public Law, University of Queensland. He has published books and articles on constitutional law, jurisprudence and constitutional political economy. He has received many awards including a John Templeton Award, an Anthony Fisher International Memorial Prize and the Centenary of Australian Federation Medal for research in law and economics.

Cheryl Saunders is a Laureate Professor at Melbourne Law School with specialist interests in Australian and comparative constitutional law, including federalism and intergovernmental relations. Her most recent book is The Constitution of Australia: A Contextual Analysis (2011). Current projects include a volume on Intergovernmental Arrangements in Federal Countries with Johanne Poirier.

Robert A. Schapiro is Professor of Law and Interim Dean at Emory University School of Law. His research focuses on federalism and state constitutional law. His book, Polyphonic Federalism: Toward the Protection of Fundamental Rights, was published in 2009.

Alison Taylor is Principal Demographer at the Office of Economic and Statistical Research, Queensland Treasury. She holds undergraduate degrees in Social Science and Arts from the University of New England and a doctoral degree from the University of Queensland. Her interests include demographic and population change, planning and planning information, housing and related social issues. She has prepared numerous reports and articles on these issues. (The views expressed in her chapter are those of herself and her co-authors and do not necessarily reflect those of Queensland Treasury.)

Greg Taylor is an Associate Professor of Law at Monash University, Melbourne. He holds undergraduate degrees in Arts and Law from the University of Adelaide and masters and doctoral degrees from the University of Marburg, Germany. His interests include constitutional law, legal history and comparative law. He has published five books and numerous articles in those fields.

Anne Twomey is an Associate Professor at the University of Sydney Law School. She has previously worked for the High Court of Australia, the Commonwealth Parliament and the Cabinet Office of New South Wales. She has written a book on The Constitution of New South Wales (2004) and published widely in the area of federalism.

Margaret White was appointed to the Queensland Court of Appeal in April 2010, having served as a judge in the Trial Division since 1992. She is Deputy President of the Defence Force Discipline Appeals Tribunal (Cth). She appeared as counsel in a number of constitutional cases including the Tasmanian Dam Case (Tasmania v. Commonwealth) and Mabo v. Queensland (No. 1).

Augusto Zimmermann is Associate Dean for Research and Director of Postgraduate Studies at Murdoch University, School of Law. He is also the Founder and President of the Western Australian Legal Theory Association (WALTA) and a Vice-President of the Australian Society of Legal Philosophy (ASLP). Dr Zimmermann has published numerous academic books and articles in several countries and languages, and he regularly speaks at conferences and seminars in Australia and overseas. His main areas of interest include comparative constitutional law and legal theory.