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• Title:Australian constitutional law : foundations and theory / Suri Ratnapala, Jonathan Crowe.
  
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• Author/Creator:Ratnapala, Suri, 1947-
  
• Other Contributors/Collections:Crowe, Jonathan, 1979-
  
• Published/Created:South Melbourne, Vic. : Oxford University Press, 2012.
  

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  • Location:LAW LIBRARY (level 3)Where is this?
    
  • Call Number: KU1750 .R38 2012
    
  • Number of Items:1
    
  • Status:Available
    

   
• Library of Congress Subjects:Constitutional law--Australia.
  
• Edition:3rd ed.
  
• Description:xxxvi, 466 p. ; 25 cm.
  
• Notes:Previous ed.: 2007.
  Includes bibliographical references and index.
  
• ISBN:9780195519037 (pbk.)
  0195519035 (pbk.)
  
• Contents:Machine generated contents note: 1. Idea of a Constitution
  1.1. Meanings of `Constitution'
  1.2. Constitution as Paramount Law
  1.3. Constitution as the System of Government
  1.3.1. Flexible Constitutions
  1.4. Constitution in the Philosophical Sense
  1.5. Objections to the Rule of Law
  1.5.1. Objection 1: The Rule of Law is Inefficient as Compared with the Rule of Persons
  1.5.2. Objection 2: The Rule of Law is Oppressive
  1.5.3. Objection 3: The Rule of Law is not Possible
  1.6. Advantages of the Rule of Law and Constitutionalism
  2. Australian Constitutionalism: An Overview
  2.1. Introduction
  2.2. Common Law Doctrine of Legality
  2.3. Rule of Law
  2.4. Judicial Review
  2.4.1. Judicial Review of Executive Action
  2.4.2. Judicial Review of Legislation
  2.4.3. Judicial Review of Primary Legislation in Australia
  2.4.4. Standing and Judicial Review
  2.5. Separation of Powers
  2.6. Representative and Responsible Government
  2.7. Federal Division of Powers
  2.8. Word of Caution
  3. Parliamentary System of Government: The Idea of a Responsible Executive
  3.1. Representative Democracy
  3.2. Presidential and Parliamentary Forms of Democracy
  3.3. Emergence of Responsible Government in England
  3.4. Introduction of Parliamentary Democracy to Australia
  3.5. Responsible Government in the Commonwealth Constitution
  3.5.1. Sources and Extent of the Executive Power of the Commonwealth
  3.5.2. Parliamentary Control of Executive Power
  3.5.3. Crown does not Exercise Executive Power Directly
  3.5.4. Prerogatives and Statutory Executive Powers are Exercised on Advice of Responsible Ministers
  3.5.5. Government by Prime Minister and Cabinet
  3.5.6. Collective Responsibility of the Cabinet
  3.5.7. Individual Ministerial Responsibility
  3.6. Non-Executive Powers of the Governor-General
  3.6.1. Appointment of Prime Minister
  3.6.2. Dismissal of Prime Minister
  3.6.3. Dissolution of Parliament
  3.6.4. Prorogation and Summoning of Parliament
  3.7. When the Governor-General Must Follow Advice
  3.8. State of Responsible Government Today
  4. Role of the Upper House in Parliamentary Democracy
  4.1. Bicameralism and Responsible Government
  4.2. Government's Responsibility to the Upper House
  4.3. Express Limitations on Upper House Powers
  4.4. Are there Unwritten Limitations on Upper House Powers?
  4.5. Upper House Power to Deny the Government Money to Conduct Routine Administration
  4.6. Upper Houses and Legislation Appropriating Money Other than for Routine Administration
  4.7. Resolution of Disagreements Between the House of Representatives and the Senate
  4.7.1. Section 57 is Mandatory and its Observance is Justiciable
  4.7.2. Does s 57 Threaten Bicameralism?
  4.7.3. Strategic Use of the s 57 Procedure
  4.7.4. Cooling-Off Period
  4.7.5. Effect of Non-Compliance with s 57
  4.8. Resolution of Disagreements Between State Houses
  5. Representative Principle in Australian Constitutionalism
  5.1. Representative Principle in the Commonwealth Constitution
  5.2. Crown as Part of the Legislature
  5.3. Composition of the Senate
  5.3.1. Senate as a States' House: Equal Representation of the Original States
  5.3.2. Continuity of the Senate: Rotational Elections
  5.3.3. Nexus Rule: A 2:1 Ratio with the House of Representatives
  5.3.4. Method of Electing Senators
  5.4. Composition of the House of Representatives
  5.4.1. Interplay of the Nexus Rule, the Proportionality Rule and the Minimum Representation Rule
  5.5. How Representative are Australia's Legislatures?
  5.5.1. Suffrage
  5.5.2. Compulsory Voting
  5.5.3. Equal Choosing Power
  5.5.4. Form of the Ballot Paper
  5.5.5. Right to be Chosen: Who Can be Elected to Parliament?
  5.6. Representation of Territories
  6. Separation of Powers: Australia's Asymmetric Model
  6.1. Introduction
  6.2. Three Powers
  6.2.1. Aspects of Power
  6.2.2. Legislative Power
  6.2.3. Executive Power
  6.2.4. Judicial Power
  6.3. Models of Separation of Powers
  6.3.1. Presidential Model of Separation
  6.3.2. Parliamentary Model of Separation
  6.4. Erosion of the Separation of Powers in the Modern State
  6.4.1. Dilution of the Executive
  Legislative Division: The Problem of Executive Law Making
  6.4.2. Rise of the Quasi-Judicial Tribunal: The Problem of the Legislating Judge
  6.5. Separation of Powers in the Australian States
  6.5.1. Parliament May Delegate Legislative Power but not Abdicate It
  6.5.2. Ad hominem Laws: The Problem of Legislative Judgments
  6.5.3. Doctrine of Institutional Integrity of State Courts
  6.5.4. Constitution of State Courts
  6.5.5. Jurisdiction of State Supreme Courts
  6.5.6. Procedure in State Courts
  6.6. Snapshot of the Australian Parliamentary Model of Separating Powers
  7. Separation of Judicial and Non-judicial Powers: Defining Judicial Power
  7.1. Three Aspects of Judicial Power
  7.1.1. Jurisdiction
  7.1.2. Judicial Function or Mode
  7.1.3. Effect of Adjudication
  7.2. Umbra of Judicial Power
  7.2.1. Controversy
  7.2.2. Rights, Liberty and Property
  7.2.3. Conclusiveness
  7.2.4. Non-consensual Nature of Judicial Power
  7.3. Penumbra of Judicial Power
  7.3.1. Theory of Innominate Powers
  7.3.2. Theory of `Chameleon' Powers
  7.3.3. Limiting Judicial Power to `Basic Rights'
  7.3.4. Historically Determined Judicial Power
  7.3.5. Mitigating the Problems of the Penumbra
  8. Rules that Separate Judicial and Non-judicial Powers: The Prohibitions
  8.1. Judicial Power of the Commonwealth Shall Not be Vested in Bodies Not Designated in Chapter III
  8.2. Judicial Power May be Vested Only in Courts in the Strict Sense
  8.3. Federal Courts that Exercise Judicial Power Must Conform to s 72
  8.4. Court Must Not Abdicate Federal Jurisdiction, Although it May Delegate Part of it Under Certain Conditions
  8.5. Judicial Powers Not Within Chapter III Must Not be Vested in the High Court or Other Federal Courts
  8.6. Federal Courts Cannot Exercise State Judicial Power Except in Cases of `Accrued Jurisdiction'
  8.7. Parliament Must Not Vest Non-Judicial Power in Chapter III Courts
  8.8. State Parliaments Must Not Vest in State Courts Non-Judicial Powers That are Incompatible with Their Exercise of Federal Judicial Power
  8.9. Parliament Must Not Remove From Courts Jurisdiction That the Constitution has Directly Vested in Them
  8.9.1. Appellate Jurisdiction
  8.9.2. Original Jurisdiction
  8.9.3. Case of Privative Clauses
  8.9.4. Privative Clauses in the States
  8.10. Parliament Must Not Direct the Way Courts Exercise Judicial Power
  8.10.1. Indirectly Altering the Course of Judicial Proceedings
  8.10.2. Judicial Power and the Law of Evidence: Limits of Legislative Direction
  8.11. Ban on Bills of Attainder and Ex Post Facto Punishment
  9. Rules of Separation: The Exceptions
  9.1. Persona Designata Rule
  9.2. Judicial Power with Respect to Military Offences by Service Personnel May be Vested in Courts Martial
  9.2.1. Basis of the Rule
  9.2.2. Limits of the Judicial Power that can be Conferred on Courts Martial
  9.2.3. How the Limitation is Implemented
  9.2.4. Simultaneous Jurisdiction of Courts Martial and Civil Courts in Respect of the Same Act
  9.2.5. Are Peculiarly Military Offences Beyond the Purview of Chapter III Courts?
  9.3. Judicial Powers May be Exercised by Statutory Authorities Entrusted with the Disciplinary Control of the Public Service
  9.4. Parliament May Exercise Judicial Power in Relation to its Own Powers, Privileges and Immunities
  9.5. Superior Courts May Make Rules of Procedure
  9.5.1. Inherent Power of Superior Courts to Make Rules of Procedure
  9.5.2. Parliament's Power to Make Law With Respect to Procedure
  9.5.3. Does Delegated Rule-Making Power Supersede or Suspend Inherent Power to Make Rules?
  9.5.4. Do Superior Courts Have Power to Regulate the Procedure of Inferior Courts?
  10. Interpreting Commonwealth Legislative Powers: Textualism, Originalism or Underlying Principles?
  10.1. Theories of Interpretation
  10.1.1. Interpretation in the High Court
  10.2. Interpreting Commonwealth Powers
  10.2.1. High Court's Early Approach
  10.2.2. Interpreting the Engineers Case
  10.3. Balancing Commonwealth and State Powers
  10.3.1. Expansion of the Commonwealth
  10.3.2. Evolving Constitutional Context
  10.3.3. Growth of External Affairs
  10.4. Constitutional Implications
  10.4.1. Federalism and Implied Rights
  10.5. Dworkinian High Court?
  11. Federal
  State Relations
  11.1. Introduction
  11.2. Constitutional Guarantee of the Existence of the States
  11.3. Australian Scheme of Distributing Legislative Powers
  11.3.1. Subjects Exclusively Within the Legislative Power of the Commonwealth
  11.3.2. Subjects that are Concurrently Within the Legislative Power of Commonwealth and State Parliaments
  11.3.3. Province Over Which State Parliaments have Exclusive Legislative Power
  11.3.4. Legislative Power that is Denied to Both States and the Commonwealth
  11.4. Resolution of Conflicts Between Federal and State Law: The Operation of s 109
  11.4.1. Conflicts Can Occur Only Between Valid Laws
  11.4.2. Meaning of `Law' in s 109
  11.4.3. Types of Inconsistency
  11.4.4. Effect of Inconsistency on State Law
  Contents note continued: 11.5. Scope and Limits of Commonwealth Legislative Powers: The Shifting Standards
  11.5.1. Early High Court: Implied Immunities and Reserved Powers
  11.5.2. Doctrine of the Engineers Case
  11.5.3. Expansionary Consequences of the Engineers Doctrine
  11.5.4. Roll-Back of the Engineers Doctrine and the Rise of the Model of Limited Powers
  11.5.5. Implied Limitations Arising from the Federal Structure (the Melbourne Corporation Rule)
  11.6. Implied Limits on State Power
  11.7. Further Limitations on Commonwealth Legislative Powers
  11.7.1. Limitations Derived from the Rule of Law Ideal
  11.7.2. Limitations Imposed by the Separation of Judicial and Non-Judicial Powers
  11.7.3. Representative Democracy and Freedom of Communication
  11.8. Connectivity and Proportionality
  11.8.1. Case of the Defence Power
  11.8.2. Test of Appropriateness and Adaptation
  11.9. Conclusions
  12. Trade, Commerce and Industrial Relations
  12.1. Economic Underpinning of Federations
  12.1.1. Vertical Fiscal Balance
  12.1.2. Horizontal Fiscal Balance
  12.1.3. Economic Conditions for a Successful Federation
  12.2. Freedom of Interstate Trade, Commerce and Intercourse
  12.2.1. Brief History of `Absolute Freedom'
  12.2.2. Cole v Whitfield: The New Beginning
  12.2.3. Further Implications Not Noted in Cole v Whitfield
  12.2.4. National Markets and the Re-Emergence of the Individual
  12.3. Freedom of Interstate Intercourse
  12.3.1. Freedom of Interstate Intercourse is an Individual Entitlement
  12.3.2. Freedom of Intercourse is Not Absolute
  12.3.3. Test Where the Same Activity Amounts to Trade as Well as Intercourse
  12.4. Commonwealth's Trade and Commerce Power: s 51 (i)
  12.4.1. Scope of the Power
  12.4.2. Impact of the Engineers Doctrine on the Trade and Commerce Power
  12.5. Corporations Power
  12.5.1. Trading Corporations
  12.5.2. Financial Corporations
  12.5.3. Foreign Corporations
  12.5.4. What Kinds of Law can be Made With Respect to Constitutional Corporations?
  12.5.5. Corporations and Industrial Relations
  12.5.6. Limits of the Corporations Power
  12.6. Industrial Relations Power
  12.6.1. Conciliation and Arbitration as the Sole Means
  12.6.2. Existence of a Dispute
  12.6.3. Meaning of Industrial Dispute
  12.6.4. Extension Beyond the Limits of Any One State
  13. Taxation, Appropriation and Spending
  13.1. Taxation and Constitutionalism
  13.2. Sources of Taxation Power
  13.3. What is a `Tax'?
  13.3.1. Compulsory Exaction of Money
  13.3.2. Public Authority
  13.3.3. Public Purpose
  13.3.4. Pecuniary Penalties are not Taxes
  13.4. Customs and Excise Duties
  13.4.1. Licence Fees as a Source of State Revenue
  13.4.2. Consumption Tax
  13.5. Substantive Limit on the Taxation Power: The Rule Against Discrimination
  13.6. Procedural Limits on the Taxation Power
  13.6.1. Taxation Laws Cannot Originate in the Senate
  13.6.2. Senate Cannot Amend Taxation Laws, but May Reject Them
  13.6.3. Laws Imposing Taxation Must Deal Only with Taxation: The Rule Against Tacking
  13.6.4. One Subject Rule
  13.7. Appropriation
  13.7.1. Appropriations for the Ordinary Annual Services of Government
  13.7.2. Purposes of the Commonwealth
  13.7.3. Specificity of Purpose
  13.8. Commonwealth Grants Power
  13.9. Intergovernmental Agreement on the Reform of Commonwealth
  State Financial Relations
  14. International Powers of the Commonwealth: Defence and External Affairs
  14.1. Defence Power
  14.1.1. Defence Power in Wartime
  14.1.2. Defence Power in Peacetime
  14.2. External Affairs Power
  14.2.1. Geographical Power
  14.2.2. Treaty Power
  14.2.3. International Relations Power
  14.3. External Affairs and Federalism
  15. Constitutional Rights and Freedoms
  15.1. Rights and Freedoms
  15.1.1. Hohfeld's Conceptions of Right and Freedom
  15.1.2. Positive and Negative Freedoms
  15.2. Hierarchy of Rights and Freedoms
  15.2.1. Common Law Rights
  15.2.2. Statute Law Rights
  15.2.3. Constitutional Rights
  15.3. Threshold Problem of Standing
  15.4. Section 51(xxxi): The Right to Compensation on Just Terms for Property Acquired by the Commonwealth
  15.4.1. Property
  15.4.2. Acquisition
  15.4.3. Just Terms
  15.4.4. Purposes for Which Private Property May be Acquired
  15.4.5. Section 51 (xxxi) Applies to Grants Under s 96
  15.4.6. Case of Taxation
  15.5. Right to a Fair Trial Before Deprivation of Life, Liberty or Property
  15.5.1. Scope of the Right
  15.5.2. Ban on Executive Deprivations of Liberty and Property
  15.5.3. Ban on Bills of Attainder (Nullum Crimen, Nulla Poena Sine Lege)
  15.5.4. Right to Trial by Jury
  15.6. Right to Equality Before the Law
  15.6.1. Non-Discrimination on Religious Grounds
  15.6.2. Non-Discrimination on Grounds of Residency
  15.7. Freedom of Political Communication
  15.7.1. Basis of the Freedom
  15.7.2. Scope of the Freedom
  15.7.3. Permissible Restrictions on the Freedom
  15.7.4. Expanded Defence of Qualified Privilege
  15.7.5. Personal Right or a Restriction on Power?
  15.8. Freedom of Association
  16. Constitutional Change
  16.1. Some Theoretical Issues
  16.1.1. Rigidity and Flexibility
  16.1.2. Forms of Constitutional Change in the Australian Federation
  16.1.3. Revolutions and Constitutional Change
  16.1.4. `Basic Norm' of the Constitution
  16.1.5. Can a Sovereign Body Limit Itself?
  16.2. Constitutional Alteration: The Commonwealth
  16.2.1. Evolution of Australian Independence
  16.2.2. Constitutional Alteration Under s 128: The Referendum Route
  16.2.3. Legal Status of the Constitution of the Commonwealth of Australia Act
  16.2.4. Australia Act 1986 as a Source of Constituent Power
  16.2.5. Implications of the Fox Hunting Case
  16.2.6. Constituent Potential of s 51 (xxxvii)
  16.2.7. Constituent Potential of s 51(xxxviii)
  16.3. Constitutional Alteration: The States
  16.3.1. Constitutional Change Bypassing State Parliaments
  16.3.2. Constituent Power of State Parliaments
  16.3.3. Constitutional Change by Implication: McCawley's Case
  16.3.4. Manner and Form Limitations
  16.3.5. Can State Parliaments Bind Themselves?
  16.3.6. Question of Remedies.