Topic 2: Constitutional Interpretation
1. Literalism
2. Historical approach
3. Constitution as a living document 4. Structuralism
Topic 4: Federalism; Federalism in Aus; Inconsistency & Intergovernmental Immunities
Federalism
• Characteristics of Federalism
o Division of powers between central and regional governments o Representation of regional views within the central government o Written Cons
o Independent and impartial umpire – judicial review
• Benefits
o Protection of citizens by checking the concentration of power o Enhanced participation in democracy
o Regional autonomy and diversity o Competitive efficiencies
o Incentives to innovate and experiment o Enhanced debate and scrutiny
• Criticisms
o Too many tiers o Costly system
o Inefficient and excessive bureaucracies o Duplication and overlap
o Gives rise to conflict rather than achievement
• Two doctrines to limit power of Cw;
o State reserved powers
o Implied immunity of instrumentalities
• Money problem Inconsistency
• Section 109
1. Is there a valid Cw law?
2. Is there a head of power the Cw can legislate under?
a. Breaching any express/implied prohibition?
3. Is there a valid state law?
4. Is there an inconsistency between the two?
• Types of inconsistencies;
o Direct o Indirect
o Covering the field Intergovernmental Immunities
• Where Cw laws bind States or State laws bind Cw
• Enigneers – rejected reserved powers doctrine and implied intergovernmental immunities doctrine
o To what extent can Cw bind the States;
Has to have head of power
Melbourne Corporation principle – discriminates against states/ unduly impinges on states capacity to exist as institutional entities
o To what extent can States bind Cw Hendersons Case;
• Has to be law of general application
• State law must extend to the Cw as a matter of construction
• State law cannot be inconsistent w Cw law
