Melbourne Law School - Theses
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ItemEmergency Powers in Times of Terror: A Comparative Study of Canada and France( 2022)Constitutions establish the fundamental principles of government, both grounding and limiting the legal exercise of state power. In times of emergency, when public safety is threatened and the state must act to protect its citizens, these two constitutional functions can come into tension. A constitution may provide the legal basis for the state’s response to an emergency, but it may also constrain the state’s ability to act effectively during the time of crisis. Some constitutions, like France’s Constitution du 4 octobre 1958, anticipate this dilemma with emergency provisions. Other constitutional texts, like those of Canada, have no special provisions for emergencies. In either case, the state may choose to provide for an emergency framework by statute, accepting that the law must necessarily be constrained by the overarching constitution. Following the attacks of 11 September 2001, this constitutional dimension of emergency management acquired a new urgency because terrorism places extraordinary pressures on constitutional systems. By its nature, terrorism affects the state in its very essence. Through its immediate effects, terrorism calls into question the state’s ability to provide for the physical security of its citizens and challenges its corollary monopoly on violence. Through its induced effects, terrorism affects constitutional rights through the restrictions that it causes. Two decades after the attacks of 11 September 2001, amidst an ongoing global terror threat, constitutional systems continue to grapple with these pressures. This thesis investigates whether and why constitutional emergency provisions are necessary, or desirable, or even useful for dealing with the threats posed by terrorism. To this end, it seeks insight from the comparison of two constitutional systems that exemplify these opposite approaches: Canada and France.
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ItemThe Prohibitions in sections 51(ii) and 99 of the Commonwealth constitution against discriminating between or giving preference to States in laws of taxation,trade,commerce and revenue( 2004)The subject matter of this thesis is the prohibitions in ss51(i1) and 99 of the Commonwealth Constitution. Section 51(ii) prohibits the Commonwealth from passing laws of taxation which discriminate between States or parts of States. Section 99 prohibits Commonwealth laws or regulations of trade, commerce, or revenue which give preference to one State or any part thereof over another State or any part thereof. In this thesis, it is concluded that, despite suggestions to the contrary, these provisions should be retained in the Constitution in their current forms. They have important historical purposes central to federation, including free inter- State trade and national unity. They should not be amended to allow the Inter- State Commission or another body to permit discriminations or preferences in contravention of ss51(ii) and 99 for worthy purposes such as a perceived need for special assistance in particular regions. The incidental test is proposed and tested in this thesis as a satisfactory solution for interpreting the notoriously difficult prohibitions in ss51(ii) and 99. The test is consistent with the High Court's current trend of substantive interpretation which emphasises the effect of laws, not merely their form or wording. it permits laws that select States in a manner proportionate and incidental ( that is, appropriate and adapted) to the law's legitimate object, in the sense of selecting incidentally whilst being focussed on circumstances existing within States. In determining whether laws select incidentally as opposed to directly, a range of factors may be considered, some substantive, some formalistic. It is argued that the incidental test satisfactorily balances important considerations such as the prohibitions' wording, their purposes and historical expectations (Australian and US) for interpretation, their unique role within a group of comparable constitutional provisions, existing judicial interpretation and the High Court's function of constitutional interpretation. Most importantly, the incidental test is proposed as a workable and realistic solution for the Court to apply, in the sense of knowing what the test means and using it to achieve correct outcomes in a range of factual scenarios.
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ItemThe reception and use of social policy information in the High Court of Australia( 2000)Social policy information is information that may assist a judge in determining the social or economic consequences of a law. Social policy information is used by judges in developing the law. There are three jurisprudential models that, arguably, could be used to describe the reception and use of social policy information by the High Court of Australia. Under the appropriate model for describing the current law - the Legal Sources Model - social policy information is not treated as a fact in issue, and is not subject to the common law rules of evidence or to section 144 of the Evidence Act 1995 (Cth). Under the Legal Sources Model, the reception and use of social policy information is characterised as an integral part of the judicial reasoning process in determining the content of the law and remains within the sole discretion of the judge, subject to various restrictions. These restrictions arise out of the requirements of judicial process (the parties must be given an opportunity to comment on contentious social policy information) and constitutional limitations (court processes must not resemble Parliamentary Inquiries). Case studies demonstrate that social policy information is often widely used without any acknowledgement of the legal basis on which it is used, without the source of information being identified in the written judgment, and without any apparent method for evaluating the reliability of the information. The current system for the reception and use of social policy information fails to satisfy Best Practice Standards in several important respects, including the following. First, there is no legal rule that defines the circumstances in which judges should obtain, through inquiry, social policy information they reasonably need. Secondly, there is no legal rule that facilitates an evaluation of social policy information by judges. Thirdly, the source of social policy information is not always mentioned in judgments. Fourthly, the law regarding the reception and use of social policy information is not certain. Experience in relevant overseas jurisdictions - the United States, Canada and New Zealand - suggests that these problems are not unique to Australia. Various reform proposals are suggested. These are designed to overcome the deficiencies in the current system and to take advantage of useful ideas for reform which have been proposed overseas. The key proposal is that the High Court should develop a protocol to assist judges in using social policy information.
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ItemThe constitutional law of membership of Australia( 1979)The relationship between the individual and the state is usually assumed to be 'allegiance' but is, in common .law countries, the subject of little legal thought or writing. In particular, the Australian Citizenship Act 1948-73 is virtually ignored by the Australian legal system. This thesis attempts to discover what 'allegiance' is, whether it is a valid description of the legal concept of the relationship between individual and state in Australia and, if not, to provide a correct description. Calvin's Case, (1608) 2 St. Trials 559, provided the only complete statement of the law as to 'allegiance'. The case reveals that 'allegiance' was a product of natural law, whilst the analogous doctrines of naturalization and alienage were admitted to be creations of law. During the period 1608 to 1914, natural law proved inadequate for the English legal system. 'Allegiance' was replaced with the concept of membership as a contract between the state and the individual. This system may have motivated the 'common code' of 1914. Since 1914, the idea of a relationship between the state and the individual has disappeared from the law of both England arid Australia. The state is no longer assumed to have an existence independent of the legal system. The individual is now considered to be subjected to the legal system and notto the state.