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CCCS News Archive

Joseph Weiler Roundtables

Professor Joseph Weiler is visiting the Law School as a Miegunyah Fellow and is also holding two Roundtables for CCCS and ICIL. The subjects are The Enlarged European Union under its New Constitution on July 27, and Constitutional Foundations of International Economic Law on the 29th. The Roundtables are designed to offer the opportunity to meet Professor Weiler and to explore other aspects of his work in depth, in a smaller group and with a more interactive format.

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Honouring Mary Gaudron’s Contribution to Australian Law

On 5 March, 2004, the Centre for Comparative Constitutional Studies held a full day conference to recognise Australia’s first and only female Justice of the High Court, and her contribution to Australian Law.

This event paid tribute to Justice Gaudron’s significant contribution to Australian law in her 16 years on the High Court before her retirement in February 2003.

With an opening Welcome to Country conducted by Joy Murphy, speakers at the conference addressed concepts examined by Justice Gaudron.

Speakers:
Chief Justice Marilyn Warren of the Victorian Supreme Court
Justice Susan Kenny of the Federal Court of Australia
Nicola Roxon MP, Shadow Attorney-General
Fay Marles, Chancellor of the University of Melbourne
Professor Cheryl Saunders
Professor Jenny Morgan
Associate Professor Kim Rubenstein
Ms Maureen Tehan

Topics addressed included:
Concepts of Judicial Responsibility; Constitutional Theory and Responsibility; Constitutional Guarantees and Freedoms; Citizenship; Discrimination Theory; Indigenous Issues; Criminal Law; Administration Law; Industrial Law

For a copy of the conference program and papers, click here.

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Sex and the Republic

Kim Rubenstein has made a submission to the Senate Legal and Constitutional Committee Inquiry into an Australian Republic. Kim's submission - Gendered Issues for a Move to a Republic - looks at issues of gender and the role of Head of State and the appointment process. Kim Rubenstein will be speaking to her submission at the Oral Hearing of the Committee in Melbourne on 14 April. Click here to read more.

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Submission on Deadlocks

Resolving Deadlocks: A submission to the Committee By the Centre for Comparative Constitutional Studies. Click here to view the submission.

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Congratulations to Fiona Hanlon

Fiona Hanlon has been awarded the 2003/04 Bursary by the ACT Branch of the Australian Federation of University Women. The Bursary offers accommodation at Ursula College on the ANU campus.

The Bursary aims to aid women engaged in research projects that can be assisted through the conduct of research in the ACT.

The Selection Committee was very impressed with Fiona’s research project, and with its topical content, especially the role of the Attorney General in defending or not defending members of the judiciary against public criticism.

One of the key aspects of Fiona’s work will be to try and discern any changes in the role and function of the office from the earliest days to the present time. This necessarily involves an examination of the historical origins and development of the role and to discern possible future trends and characteristics that may impact on that role.

To do assist in doing this, Fiona will use the time in the ACT to examine the papers of past Attorneys General and the records of relevant government departments and cabinet documents where available that are relevant to the role.

Both the National Library and the National Archives in Canberra hold material relevant to the research. The National Library holds the personal papers of most of the early Commonwealth Attorneys-General, from Alfred Deakin to Robert Menzies. Similarly, the National Archives of Australia contain many items of relevance.

Fiona will be based in Canberra at Ursula College at the ANU between 26 January and 13 February 2004.

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State Constitutions in Burma

The proceedings of a series of workshops on State Constitutions in Burma, in which Cheryl Saunders participated under the auspices of International IDEA, are now available at:.www.idea.int/ideas_work/31_country_burma.htm

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New Books

Two new books have been published under the auspices of the CCCS. Cheryl Saunders and Katherine Le Roy, The Rule of Law, Federation Press 2003. Cheryl Saunders Its Your Constitution Federation Press (2nd ed. 2003). If you would like to order these books please visit Federation Press.

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Meaning of Constitutional Terms

Dr Simon Evans recently presented a faculty seminar based on his work on the meaning of constitutional terms. He observed that the High Court's standard approach to interpreting constitutional terms assumes that the connotation of a term is determined by its 'essential' features or attributes. However, in practice, the Court's approach ranges more widely, and determines the reach of constitutional terms by comparing putative instances with prototypical instances and by constructing normative accounts of the role of constitutional concepts. These approaches are comparable with the approaches to meaning and categorisation in the 20th century philosopical and pyschological literature. Those approaches follow Wittgenstein's criticism of the assumption that the meaning of a term consisted in its 'essential' features or attributes. Dr Evans concluded by considering the constitutional contexts in which these different approaches to determining meaning might be appropriate and argued that the Court's current use of the language of 'essential' features could not disguise the necessity for normative theories about the Constitution in matters of interpretation.

The working paper on which this seminar was based will be published here in due course.

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Human Rights Workshop: Yale

Dr Carolyn Evans has been selected as a participant in an intensive workshop on Human Rights to be held in Yale over the next two weeks. The workshop is run jointly by the Academic Council of the United Nations Society and American Society of International Law and gives 15 scholars and employees of the United Nations an opportunity to discuss international aspects of human rights protection. Each participant will present a paper on their area of work. Carolyn's paper is on Human Rights Commissions in the Asia-Pacific Region: Prospects and Problems. The paper explores the growth of National Human Rights Commissions in the region and examines the way in which the domestic legal systems incorporate the international standards for Commissions. It uses a case-study of inter-religious communal violence to explore the way in which different Commissions approach complex and politically controversial issues and considers the lessons that this might teach us about the possibility of a regional mechanism for human rights protection. The paper is part of a wider project on human rights commissions in the Asia-Pacific region being carried out by Carolyn and Amanda Whiting from the Asian Law Centre (whose article on the Malaysian Commission appears in a recent edition of the Stanford International Law Journal).

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Doctoral Theses In Progress

PhD Students

Rebecca French ' Discrimination and Preference under the Australian Constitution'

Susi Harijanti 'The Role and Function of the National Ombudsman Commission in Creating Good Governance in Indonesia'.

Hashim Mohammed ' Ethnic Federalism in Ethiopia: A Case Study.'

Denny Indrayana 'Constitutional Reform and Transition from Authoritarian Rule: The Indonesian Experience 1999-2002.'

Elizabeth Hammond ' Judicial Review and Courts Created by Parliament.'

Fiona Hanlon 'Role of the Attorney General.'

Sarah Biddulph 'Controlling Detention for Investigation: Legal Accountability of the Chinese Public Security Organs.'

Katy Le Roy 'Constitution making in the Asia Pacific'.

Master of Laws by Thesis Student

Susan Riley 'Australia's Unified Common Law'.

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Emily Hammond

Emily Hammond is working on a PhD thesis on Commonwealth legislative power to allocate federal jurisdiction, and regulate the process by which it is exercised. She will be examining the application of the legislative power to both constitutional and statutory jurisdictions to judicially review non-legislative Commonwealth action. The legislative power is supplied by ss76, 77 and/or 51(xxxix) of the Constitution. The judicial review jurisdiction is jurisdiction in relation to the matters described in ss75(iii), 75(v), 76(i) and 76(ii) of the Constitution.

While an analysis of the nature of the jurisdiction conferred on the High Court by ss75(iii) and (v) of the Constitution is vital to the topic, Emily’s primary aim is to develop an account of the legislative power to confer a jurisdiction on another Court that fixes upon one or more of the matters described in those two sub-sections, s76(i), and s76(ii). She will examine the operation of express and implied limitations on the power. In particular, Emily will take up the emerging idea that the fact of the constitutional grant of jurisdiction to the High Court in the matters described in ss75(iii) and (v) has forced substantive departures from the general law of judicial review. She is interested in examining whether that idea will have any consequences for the legislative power to confer judicial review jurisdiction, for example by generating an implied requirement that any substantive effect on the common law is “carried through” in any statutory grant of jurisdiction in the same, or a similar, matter.

Emily is working on her thesis full-time with the support of a Pratt Foundation Scholarship. Prior to starting her thesis, Emily practised as a solicitor for 2 years in Sydney and Melbourne, and was an associate to the Chief Justice of the Federal Court of Australia for 18 months.

For a full list of doctoral students click here

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Citizenship and Permanent Residence in Australia

Does Australian citizenship give a person the right to permanent residence in Australia? Dr Genevieve Ebbeck argued in her paper presented to the CCCS conference commemorating Professor Geoffrey Lindell’s retirement from the Law School in 2002:

“Most Australian citizens probably assume, without even adverting to the issue, that they have a right to enter Australia, and that this right can not be denied.” (To view the full paper click here)

The issue was raised in a Special Leave Application to the High Court on 25 June 2003 in Walsh v Minister for Immigration and Multicultural Affairs. (to view the transcript click here)

Ms Walsh was an Australian citizen by birth, having been born in the Australian territory of Papua in 1970. In 1975, Regulation 4 of the PNG Independence (Australian Citizenship) Regulations purported to strip her of her Australian citizenship. Regulation 4 stated that a person who became a PNG citizen lost their Australian citizenship. Section 65 of the PNG Constitution stated that a person who had been granted a “right of permanent residence” in Australia would not become a PNG citizen.

Kim Rubenstein, Senior Lecturer in Law and author of Australian Citizenship Law in Context (Lawbook, 2002), was briefed to appear on behalf of Ms Walsh in her application for special leave to appeal from the Full Federal Court decision in Minister for Immigration & Multicultural & Indigenous Affairsv Walsh [2002] FCAFC 205 (to view the case click here)

The case involved, amongst other issues, the constitutional question of whether an Australian citizen can be regulated by the immigration and emigration power: s 51 (xxvii) of the Constitution (to view Section 51 click here)

The Full Federal Court had held that Ms Walsh was an immigrant even though she was an Australian citizen:

‘possession of Australian citizenship may be an important factor in determining whether a person has become absorbed in the Australian community, and thus outside the immigration power, but it may not be decisive. An Australian national may, in some circumstances, enter Australia as an immigrant and regulation of such entry is within the constitutional competence of the Commonwealth Parliament’.
(Para 19)

The Full Federal Court also found that the decision in of Air Caledonie International v Cth (1988) 165 CLR 462 only applied to Australian citizens since 1984. (Para 17) With special leave being denied, these constitutional questions are yet to be resolved by the High Court of Australia.

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Cambridge Lectures 2003

Cheryl Saunders has just returned from Cambridge, where she delivered an address in the Cambridge Lectures 2003, to Canadian judges and lawyers, on "Comparing Federal Constitutions". Click here for a copy of the paper.

Fiona Hanlon

Fiona Hanlon is working on a PhD thesis on the Role of the Attorney General in the Australian context. The thesis will examine legal and historical developments at both the State and Commonwealth levels. It will endeavour to answer the question: -

What is the nature and extent of the role and responsibilities of the office of Attorney General in Australia?

and seek to define the appropriate role of the office of Attorney General in the Australian context for the 21st century.

The title of Attorney General dates back to 1461 and the first Australian Attorney General was appointed in 1824. Despite, or perhaps because of the age of the office there is debate about its nature and functions.

As a ministerial post, the office of Attorney General is on one view simply another political post. However, many look to the role to have a special responsibility in relation to the rule of law and protecting judicial independence. At times the office of Attorney General is a political one, at times a constitutional one, and at others a technical legal or procedural one. The office is much discussed but little examined in any detailed or comprehensive way.

Research for the thesis include the historical background of the office, interviews with past and present Attorneys General, politicians and members of the judiciary and practice and procedure affecting the operation of the role in Australia and elsewhere, including what guidance can be found from UK, NZ, Canadian and US experience.

Fiona is working on the thesis fulltime under an Australian Postgraduate Award. Fiona has extensive experience in the provision of high-level legal and policy advice to Government and senior management. She has held a number of senior positions in the Victorian public sector. Most recently she was Deputy Secretary, Legal in the Victorian Department of Justice. Fiona has worked for each of Victorian Premiers Cain, Kirner, Kennett and Bracks, two Treasurers and three Attorneys General.

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Global Dialogue on Federalism

The CCCS is currently finalising the Australian chapter for volume 1 of the Global Dialogue series, on Constitutional Origins, Structure and Change in Federal Democracies". Feedback on the draft chapter is welcome. The next two volumes will deal respectively with the Division of Powers and the Structure of the Legislature and the Executive in Federations. Watch this site for further details. Information about the Global Dialogue can be found on: http://www.federalism21.org/en_home.asp

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Congress on Federalism and Autonomy

CCCS staff member and PhD candidate Katy Le Roy was representing the Centre in Barcelona on 6 and 7 June, participating in the Congress on Federalism and Autonomy. The Congress was part of the comparative study "The allocation of powers in politically decentralised countries" being undertaken by the Observatori de l'Evolucio de les Institucions at the Pompeu Fabra University in collaboration with the Government of Catalonia´s Autonomic Studies Institute.

Katy was one of 13 experts on federalism invited from federal and other decentralised countries around the world to participate in the Congress. The Congress began with each expert providing a brief outline of the current state of federalism in their country, the main strengths and weaknesses of the operation of federalism in their context, and likely future trends. This was followed by a constructive comparative discussion on the allocation of powers within the various federations, the impact of globalisation and international law on federal decentralisation, the role and impact of constitutional courts, and fiscal federalism, amongst other issues.

The organisers of the Congress will draw on data collected in the study to formulate a submission to the Spanish government seeking greater autonomy for Catalonia.

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Constitutional advice in Sri Lanka

Cheryl Saunders has recently visited Sri Lanka, to provide technical advice on constitutional matters, and in particular, aspects of federalism and of constitution-making. The structure of the system of government in Sri Lanka is an aspect of the current peace talks. The parties have agreed to "explore a federal solution based on internal self-determination within a united Sri Lanka.". Details of the peace process can be found on http://www.peaceinsrilanka.org/

In the course of her visit she:

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Emergency Powers and Constitutions

On 4,5 May, Cheryl Saunders will participate in a conference on Emergency Powers and Constitutions, hosted by Cardozo Law School in New York. The conference papers will be published in the second symposium issue of I.CON, the International Journal of Constitutional Law, of which she is joint symposium editor (with Barry Friedman, of NYU). The first symposium issue of I.CON, on Constitutional Borrowing, has just been released. For details, http://www3.oup.co.uk/ijclaw/