Cheryl Saunders

The Use and Misuse of Comparative Constitutional Law

This article examines the extent and nature of the use of foreign law in constitutional adjudication in common law systems outside the United States, with special reference to Australia. Demonstrating that the courts of other common law jurisdictions use foreign case law readily, naturally, and for a variety of purposes, the article reaches two broad conclusions: (1) as a generalization, other common law countries do not share the concern about the legitimacy of comparative precedents that manifests itself in the United States; and (2) as a consequence, other common law countries necessarily share with the United States an interest in the methodology of comparative constitutional law, in order to avoid its misuse. Throughout this article, a series of three decisions handed down by the High Court of Australia over the course of the 1990s is used as a case study to give the arguments context and greater substance.

Towards a Global Constitutional Gene Pool

This essay aims to develop the methodology of comparative constitutional law in a way that draws more comprehensively on world constitutional experience. It proceeds in two stages. The first part identifies key methodological challenges for comparative constitutional law, drawing on the literature of comparative law, while taking account of the distinctive character of constitutional law. The challenges examined here are the dichotomy between similarity and difference; the approach to the task of comparison; taxonomy; the impact of culture; and pluralism. The second part of the argument considers the impact on comparative constitutional method of the conditions in which Constitutions operate in the early 21st century, including internationalisation, globalisation and advances in information technology. This part of the essay aims to show that, while there are considerable contemporary pressures for convergence, with implications for comparative method, other forces foster difference and pluralism, creating new methodological challenges. The essay concludes with a series of propositions for the methodology of comparative constitutional law, as a platform for further research and dialogue.

Separation of Powers and the Judicial Branch

2. The purpose of this article is to explore the meaning of the doctrine of separation of powers in its application to the judiciary in countries in the British or (perhaps more suitably) the Commonwealth constitutional tradition, with particular reference to questions of a broadly constitutional kind that many such countries are facing. It is thus intended to be comparative, rather than directed specifically to the circumstances of the United Kingdom, although the topic clearly is prompted by developments here.

The Australian Federation: A Story of the Centralization of Power

The Australian federation has evolved since 1901 to become a highly centralized system with significant harmonization and unification as a result. This has largely been achieved by an approach to Constitutional interpretation by the High Court that has favoured a broad reading of the enumerated heads of Commonwealth power in the Constitution, especially the corporations and external affairs powers. The Commonwealth has also achieved financial supremacy through a series of High Court decisions that have permitted the Commonwealth to take over the field of income taxation, and interpreted the Commonwealth’s exclusive power to impose excise duties in a way that excludes the states from taxing any commodities. In addition to the influence of judicial interpretation, there is in Australia a high degree of co-operation among the states, and between the Commonwealth and the states, which has resulted in consistent or uniform legislation in a number of key areas of regulation. Despite a contrary recent development in the context of federal executive power, the centralization of power in Australia appears to be an inexorable trend that will likely continue well into the twenty-first century.

The Impact of Internationalisation on National Constitutions

Internationalisation has caused significant convergence of the national constitutional systems of the world. Internationalisation occurs along vertical lines through the influence of international and supranational norms, institutions and processes on national constitutions as well through the horizontal movement of constitutional principles and practices across states. This chapter identifies the principal paths along which internationalisation occurs and how they contribute to convergence. It shows, however, that while internationalisation has reduced some differences between the constitutions of an increasing range of states, it has not eradicated difference altogether. Rather, internationalisation affects countries and constitutions to different degrees, and constitutions continue to have a distinctive relationship with the states for which they were made that affects their form and operation in practice. The chapter concludes by considering the implications of internationalisation for comparative constitutional method. It argues that despite internationalisation, comparative tools are as necessary as ever to understand national constitutional arrangements. Using Asia as an example, the chapter suggests that regional groupings of states may offer a useful taxonomy for the purposes of constitutional comparison and accommodate the twin realities of convergence and difference.

Concepts of Representation in Their Application to the Judiciary in Australia

In considering whether judges in Australia can and should be representative of the community, it is necessary to bear in mind that the role of the judge in the Australian federal system has distinctive features, shaped by the Australian constitutional and legal system. Judges are required to have a high level of expertise in a wide field of legal subjects, and to be seen to undertake their role independently. Consequently, lay representation among judicial decision-makers has not been the norm for Australian courts, and this is unlikely to change. Nonetheless, some lay participation in judicial decisions is effected through use of juries in criminal trials, appearance by amici curiae, merits review by tribunals with some lay membership, and diversionary sentencing courts. In the past, the qualifications for being a judge have been claimed to impede the appointment of judges on a more representative basis. Nevertheless, in recent years the judiciary has become more representative, in the sense of more diverse, at least in terms of gender. This may be due to formal and informal changes in the process of appointing judges to introduce greater consultation, and the use of a broader range of selection criteria, including concepts of diversity, community representation, and accounting for a range of experiences as relevant to demonstrating aptitude and merit.

Co-Operative Arrangements in Comparative Perspective

Australia has a broad network of intergovernmental arrangements across almost every area of government activity. The growth of intergovernmental arrangements of various kinds has been fuelled by pressures for harmonisation and federal dominance of financial resources. This chapter examines intergovernmental arrangements in Australia, including recent governance changes to the Council of Australian Governments (COAG), ministerial councils and financial agreements. It suggests that, lacking a broad vision and principled framework, these initiatives fall short of providing adequate transparency and accountability, with adverse consequences for representative and responsible government and the rule of law. It may be that the time has now come to accept that intergovernmental arrangements and practices in Australia now represent a distinct mode of governance for which more structured provisions should be made, in the interests of federalism and constitutionalism more broadly. Drawing on insights from other federations facing similar problems, in particular Germany, the European Union and the United States, the chapter argues that Australia should adopt a formal, public and principled institutional framework for the network of intergovernmental ministerial councils; increase the involvement of parliaments in intergovernmental decision-making; and explore the possibility of a suitable constitutional amendment to provide the legal framework for a transparent, effective and genuinely cooperative intergovernmental schemes.

Democracy, Transparency and the Apparent Demise of the Treaty Establishing a Constitution for Europe

The failure of any constitution-making process is deeply disappointing for some and a source of satisfaction for others. The satisfaction of the latter may be short, or at least not long, lived, however, if it subsequently turns out that the changes were necessary, or even demonstrably useful. Initial failure in a constitutional project is relatively common, for reasons that range from the difficulty of the process to the novelty and perceived significance of the issues at stake. Experience suggests, however, that, at least where the rationale for the constitutional proposals was sufficiently soundly based, failure may not be the end of the story. It follows that it makes sense to take stock after such an event: to identify what is lost, that was of value; to determine what, if anything, might be improved, if another constitutional moment presents itself; and to consider whether constitutionalisation should be attempted again, or whether other mechanisms can be used instead.

Asia–Pacific Constitutional Systems: Index

Acknowledgements Map: the Asia-Pacific region Introduction Part I. Modernity and Nation-States at the Dawn of the Global Era: 1. Traditional states and colonisation 2. The modern constitution 3. Writing the constitution Part II. The Constitution of Modernity: 4. The legislature 5. Representation 6. Head of state 7. Constitutional revision Part III. Democracy and the Rule of Law: 8. Courts and the judiciary 9. The suspension of constitutional power 10. Devolution Conclusion: postmodernity and constitutionalism Appendix: chronology of constitutional events in the Asia Pacific Bibliography Index.

Asia–Pacific Constitutional Systems: Acknowledgements

Acknowledgements Map: the Asia-Pacific region Introduction Part I. Modernity and Nation-States at the Dawn of the Global Era: 1. Traditional states and colonisation 2. The modern constitution 3. Writing the constitution Part II. The Constitution of Modernity: 4. The legislature 5. Representation 6. Head of state 7. Constitutional revision Part III. Democracy and the Rule of Law: 8. Courts and the judiciary 9. The suspension of constitutional power 10. Devolution Conclusion: postmodernity and constitutionalism Appendix: chronology of constitutional events in the Asia Pacific Bibliography Index.