Government powers under a federal Constitution / by John Pyke.

Pyrmont, N.S.W. : Lawbook Co., 2024.

3rd edition

201625

Executive power -- Australia.

Constitutional law -- Australia.

Australia -- Politics and government.

Part A: Constitutional concepts and their history

1. The significance of constitutions and constitutional law

2. Sources of constitutional ideas

3. The colonisation of Australia and the development of six self-governing colonies

4. Federation and the drafting and passage of the Commonwealth Constitution

5. A general outline of the constitution

Part B: General principles of constitutional law and litigation

6. The constitution as supreme law, and evolving theories as to why it is so

7. Constitutional litigation

8. General principles of interpretation of the Commonwealth Constitution

Part C: The "branches" of government, general limits on their powers, and consequences for individual rights

Part C1: Parliamentary powers and limits on them, other than federal limits

9. Commonwealth parliament: rules about its composition

10. Commonwealth parliament: the law-making process

11. State parliaments: generally broad powers, subject to a Power of self-limitation

12. Some non-limits on the legislative powers of Australian parliaments

13. The right to vote at Commonwealth elections

14. The constitutional freedom of political discussion

15. A limit applying only to the Commonwealth: acquisition of property on just terms

16. Express, but generally weak, protection of human rights against laws made by the Commonwealth

Part C2: Executive power and its subjection to law

17. Governors and ministers: dignified fictions and the reality of executive power

18. The law behind the conventions: parliamentary control of finance

19. Sources of executive power

20. Limits on executive power: modern developments in the rule of law

Part C3: The separation of judicial power

21. Federal judicial power to be given only to "chapter III courts"

22. Commonwealth laws affecting chapter III courts: the limits

23. State and territory laws affecting their own courts and tribunals: limits imposed by the Commonwealth constitution

Part D: The federal division of legislative powers

Part D1: The range of Commonwealth legislative powers

24. Sources and interpretation of Commonwealth legislative powers

25. Business-regulation powers: trade and commerce, corporations, other powers

26. Nation-state powers: internal regulation of government, external affairs, defence, internal security, immigration and aliens

27. Social powers: marriage and divorce; pensions, benefits and health services; people of any "race"

28. The Commonwealth's financial powers: tax, grants to the states, and spending money

29. "Federal" limitations on Commonwealth power

Part D2: The effects of the Commonwealth constitution on the states and territories

30. General effects of the Commonwealth constitution on state powers: concurrent powers, Commonwealth exclusive powers and prohibitions

31. State laws not to impose customs or excise duties

32. Freedom of interstate trade, commerce and intercourse

33. Discrimination against out-of-state residents prohibited

34. Inconsistency of state and territory laws with laws of the Commonwealth

35. Intergovernmental immunities

36. A final note on the states, and the drive for more uniform laws

37. The territories: like states in some ways but not in others

Part E: Possible changes to the federation

38. New states, and changing the boundaries of states

39. Formal alteration of the constitution: the record so far and current issues.

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. - Publisher's website.

Includes bibliographical references and index.

9780455248196

lii, 735 pages ; 25 cm