[I just wanna party (party)]
A brief index of the articles:
Larry Alexander - Introduction:
Overview: Provides an overview of different scholars’ perceptions of constitutionalism. Crux: The main clash is between those whose opinions differ on whether we should be bound by a preemptive document, and which method of interpretation is appropriate.
Jeffrey Goldsworthy - Legislative Sovereignty and the Rule of Law:
Overview: Explores the content of the rule of law as a political ideal.
Crux: The content of the rule of law is still indeterminate.
Graeme Orr - ‘Referenda and Direct Democracy’:
Overview: Referenda are the purest exercise in direct democracy (electors cannot propose).
Crux: The 2000 word system may be outdated in the digital age.
Cheryl Saunders - ‘The Sources and Scope of Commonwealth Power to Spend’:
Overview: Pape is the most recent case on the issue. It reinforces that the Commonwealth can still spend on essentially whatever they feel like spending on, based on the incidental spending power (s 51(xxxix)).
Crux: There are several ways you can claim a power to spend, the HCA rejected 81 and 83. s 61 is where it’s at!
ACTV Case Extract:
Overview: Reasons from representative government (ss 7, 24) to freedom of political communication. Know that the proposed legislation was meant to regulate political advertising in election periods.
Crux: Freedom of political communication can be implied from representative government.
Peter Cane - ‘Parliaments’
Overview: Responsible government refers to the Westminster system where representatives are responsible to the legislature.
Crux: Whatever you want it to be.
Malcolm Aldons - ‘Responsible, Representative and Accountable Government’:
Overview: Responsible government is at odds with representative government.
Harry Evans - ‘Parliamentary and Extra-Parliamentary Accountability Institutions’:
The paradox of supposedly ‘apolitical’ accountability mechanisms (eg. Ombudsmen) is that they are set up by and report to the same body which they are meant to oversee (parliament, controlled by the executive). They also can not be fully apolitical, because they need political support in order to be effective- without media attention, the executive can ignore or dismantle them at will.
Alan Fenna - ‘Commonwealth Fiscal Power and Australian Federalism’:
So, there’s some VFI: The Federal government has 82% of all the money, but States do 50% of the spending. States need to get money from the Federal government, and the Federal government can attach conditions (s96 tied grants).
This is good because: it gives the Federal government a way to get around Constitutional restrictions on its legislative power, which might be a good thing in a modern society.
This is bad because: It erodes the Federal balance the founding fathers wanted, and paying someone to do things is less efficient than being able to just do them: ie, legislate directly. More specifically, tied grants enable the Federal government to effectively legislate beyond their powers in s 51. One such example can be seen in the Howard government’s flag policy whereby schools could only attain certain funding if they had an Australian flag hoisted. The states had nothing legislated with such respect, this is the federal government’s agenda in the state jurisdiction.
Graeme Orr - ‘Government Advertising’:
In the first half of the article, Graeme argues for a cap on the government’s annual spending on advertising. He also suggests that, although there’s not a ‘bright line’ between informational and self-promoting advertising, government advertising should be as objective as possible. In the second half, he provides an analysis of the Combet (WorkChoices advertising) judgments.
Changes to the Framework for Government Advertising:
Overview: They be changin’ it.
Crux: See overview.
Guidelines on Information and Advertising Campaigns by Aus. Govt. Deps and Agencies:
Spigelman CJ - ‘The Integrity Branch’:
Anita Stuhmcke and Anne Tran - ‘The Commonwealth Ombudsmen’:
Overview: Ombudsman = good and not a ‘toothless tiger’. And AWESOME.
Then there is the question of how they are held accountable. And the funny thing is that they report to parliament ... which is what they’re investigating into ... They can also be accountable to themselves (internal investigations).