Government Powers Under a Federal Constitutional Third Edition

Government Powers Under a Federal Constitutional Third Edition

By John Pyke

Book

$150.00 RRP

Date: 22/12/2023

Code: 9780455248196

Lawbook Co., AUSTRALIA

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Description

The third edition of John Pyke’s Government Powers brings the reporting and analysis of the case law on Australian Constitutional Law up to date until November 2023.  Just after the publication of the second edition, there was a significant case on the citizenship of Indigenous people (Love and Thoms).  In more recent significant cases, the Commonwealth government has been told that it cannot cancel the citizenship of terrorists without bothering to argue its case before a court (Benbrika 2023) or detain refugees indefinitely (NZYQ), and the States have been told that they cannot impose a mileage tax on drivers of electric vehicles (Vanderstock).  There has been the usual steady flow of cases on separation of judicial power, detention without trial, revocation of citizenship, and the Kable principle. In a series of less significant cases, a number of people have attempted to challenge the COVID-19 lockdown laws on various fanciful grounds, and failed.  (Clive Palmer’s attempt to be allowed into Western Australia did produce something new, in that the High Court applied its “structured proportionality” approach to section 92 – though it made no difference to the result.)   In the political arena, there has been the attempt to incorporate an Indigenous Voice in the Constitution, starting with optimistic hopes and ending in failure.

As before, after spelling out the basic principles and some history, the chapters are arranged into two main parts – Part C dealing with the Commonwealth Constitution as, directly and indirectly, a protector of civil rights (though not to the extent that people can ignore rational quarantine laws!), and Part D dealing with the division of legislative powers between Commonwealth and States.  The tendency for new cases to very largely fall into  the “rights” part and only occasionally into the “federalism” part continues.  John Pyke narrates all of this with his usual verve and clarity.

 

Table of Contents

Contents

PART A

Constitutional Concepts and Their History

1

Chapter 1

The Significance of Constitutions and Constitutional Law

3

Chapter 2

Sources of Constitutional Ideas

9

Chapter 3

The Colonisation of Australia and the Development of Six Self-Governing Colonies

29

Chapter 4

Federation and the Drafting and Passage of the Commonwealth Constitution

47

Chapter 5

A General Outline of the Constitution

57

 

 

 

PART B

General Principles of Constitutional Law and Litigation

63

Chapter 6

The Constitution as Supreme Law, and Evolving Theories as to Why It Is So

65

Chapter 7

Constitutional Litigation

81

Chapter 8

General Principles of Interpretation of the Commonwealth Constitution

95

 

 

 

PART C

The “Branches” of Government, General Limits on

Their Powers, and Consequences for Individual Rights

117

PART C1

Parliamentary Powers and Limits on Them, Other

Than Federal Limits

119

Chapter 9

Commonwealth Parliament: Rules About Its Composition

121

Chapter 10

Commonwealth Parliament: The Law-Making Process     

143

Chapter 11

State Parliaments: Generally Broad Powers, Subject to a

Power of Self-Limitation

157

Chapter 12

Some Non-limits on the Legislative Powers of Australian Parliaments

185

Chapter 13

The Right to Vote at Commonwealth Elections

217

Chapter 14

The Constitutional Freedom of Political Discussion

227

Chapter 15

A Limit Applying Only to the Commonwealth: Acquisition of Property on Just Terms

259

Chapter 16

Express, but Generally Weak, Protection of Human Rights Against Laws Made by the Commonwealth

281

 

 

 

PART C2

Executive Power and Its Subjection to Law

293

Chapter 17

Governors and Ministers: Dignified Fictions and the Reality of Executive Power

295

Chapter 18

The Law behind the Conventions: Parliamentary Control of Finance

319

Chapter 19

Sources of Executive Power

327

Chapter 20

Limits on Executive Power: Modern Developments in the Rule of Law

337

 

 

 

PART C3

The Separation of Judicial Power

357

Chapter 21

Federal Judicial Power to Be Given Only to “Chapter III Courts”

359

Chapter 22

Commonwealth Laws Affecting Chapter III Courts: The Limits

383

Chapter 23

State and Territory Laws Affecting Their Own Courts and Tribunals: Limits Imposed by the Commonwealth Constitution

405

 

 

 

PART D

The Federal Division of Legislative Powers

429

 

 

 

PART D1

The Range of Commonwealth Legislative Powers

431

Chapter 24

Sources and Interpretation of Commonwealth Legislative Powers

433

Chapter 25

Business-Regulation Powers: Trade and Commerce, Corporations, Other Powers

449

Chapter 26

Nation-State Powers: Internal Regulation of Government, External Affairs, Defence, Internal Security, Immigration and Aliens

475

Chapter 27

Social Powers: Marriage and Divorce; Pensions, Benefits and Health Services; People of Any “Race”

501

Chapter 28

The Commonwealth’s Financial Powers: Tax, Grants to the States, and Spending Money

517

Chapter 29

“Federal” Limitations on Commonwealth Power

545

 

 

 

PART D2

The Effects of the Commonwealth Constitution on the States and Territories

555

Chapter 30

General Effects of the Commonwealth Constitution on State Powers: Concurrent Powers, Commonwealth Exclusive Powers and Prohibitions

557

Chapter 31

State Laws Not to Impose Customs or Excise Duties

569

Chapter 32

Freedom of Interstate Trade, Commerce and Intercourse

585

Chapter 33

Discrimination Against Out-of-State Residents Prohibited

605

Chapter 34

Inconsistency of State and Territory Laws with Laws of the Commonwealth

617

Chapter 35

Intergovernmental Immunities

637

Chapter 36

A Final Note on the States, and the Drive for More Uniform Laws

649

Chapter 37

The Territories: Like States in Some Ways But Not in Others

659

 

 

 

PART E

Possible Changes to the Federation       

673

Chapter 38

New States, and Changing the Boundaries of States

675

Chapter 39

Formal Alteration of the Constitution: The Record So Far and Current Issues

681

 

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