Nicholas T. Aroney

Courts in Federal Countries : Federalists or Unitarists?

Courts are key players in the dynamics of federal countries since their rulings have a direct impact on the ability of governments to centralize and decentralize power. Courts in Federal Countries examines the role high courts play in thirteen countries, including Australia, Brazil, Canada, Germany, India, Nigeria, Spain, and the United States. The volumes contributors analyse the centralizing or decentralizing forces at play following a courts ruling on issues such as individual rights, economic affairs, social issues, and other matters. The thirteen substantive chapters have been written to facilitate comparability between the countries. Each chapter outlines a countrys federal system, explains the constitutional and institutional status of the court system, and discusses the high courts jurisprudence in light of these features. Courts in Federal Countries offers insightful explanations of judicial behaviour in the worlds leading federations.

Subsidiarity: European lessons for Australia's federal balance

The principle of subsidiarity was adopted as part of the law of the European Union as a response to perceptions of excessive centralisation and bureaucratisation within the European system of government. If subsidiarity is a solution to these problems in Europe, it might be asked: could it also be a solution to similar problems that arise in other federal systems, such as those of the United States and Australia? However, posing the question in this way is misleading because it is not at all clear that subsidiarity has been a solution in Europe, and in any case it cannot be assumed that a solution in one context will necessarily operate effectively in another. This article closely examines the nature and operation of the principle of subsidiarity in Europe and asks what lessons might be learned from it. To do this, the article begins by identifying the carefully defined operation of the principle in EU law and then closely examining the application of the principle, firstly as a political decision-making procedure that involves the Member State parliaments in the European policy-making process, and secondly as a juridical principle enforceable by the European Court of Justice. The possible adoption of the principle in other federations is then discussed, but limitations on its effectiveness in Europe, as well as the different institutional and political circumstances of the Australian federal system, are shown to undermine its likely usefulness, unless other more fundamental issues about the way in which the federal system is understood, organised and operated are addressed. The final part of the article suggests that these more fundamental issues are best understood and addressed in the light of a broader, more substantial, ‘social’ conception of subsidiarity: a conception not unrelated to the Roman Catholic social theory from which the idea of subsidiarity originally derived. A more substantial, social conception of subsidiarity, it is argued, can help us to understand why the application of the principle in Europe has had only limited effect and also why its application in other federal systems is unlikely to remedy problems of centralisation and bureaucratisation. This is because the European version of subsidiarity is focussed on the question of how the functionalist objectives of the EU can most appropriately be achieved, with only tangential consideration being given to the proper functions, purposes and responsibilities of the constituent Member States themselves. Focussing simply on the scope and reach of the competences of the central organs of government is not enough. Nor is it sufficient, as in Australia, to focus only upon the immunities that the constituent states ought to enjoy as self-governing political communities. Rather, the key task is to identify the proper functions and purposes (munera) of the various political (and social) communities and associations that make up the wider political community of which they are an integral part. The proper immunities that a particular community should enjoy cannot be identified apart from and identification of the appropriate munus of that community. Although an admittedly difficult and highly controversial task, unless the issue of the munera is addressed, ‘subsidiarity’ as a principle is not going to have much effect, for its fundamental lesson about the nature and integrity of the munus of each community — social and political — will not have been learned.

Real Constitutional Reform after Fitzgerald: Still Waiting for Godot

The Fitzgerald Inquiry, although initially focused upon matters such as maladministration and corruption, placed significant emphasis on the reform of Queensland’s political and public administration system as a whole. It is therefore in relation to its practical impact within the context of that system that the Fitzgerald Report ought to be assesses. However, despite widespread support for the report’s recommendations, recent events in Queensland concerning such matters as corruption, maladministration, lobbying, cronyism and secrecy suggest that the report has failed to deliver on its most basic objectives. This article argues that although the Fitzgerald Report drew attention to and sought to address systemic problems of various kinds, it has largely failed in its intentions because the changes that it proposed could not be sustained in the context of Queensland’s existing constitutional framework and particular system of Westminster democracy, especially its high level of executive domination operating in the context of a unicameral parliament. The fact that so many of the Fitzgerald reforms were left to be sorted out by post-commission agencies working in such an environment means real reform has failed to flourish. Consequently, the Fitzgerald Report has met the same fate as so many other public inquiries into corruption in Australia, resulting in only minimal change to the way government is actually conducted. While as a result of the Fitzgerald Inquiry there has been widespread institutional restructuring in Queensland, the way of doing business in that state has hardly changed at all.

Subsidiarity in the Writings of Aristotle and Aquinas

The philosophical origins of the principle of subsidiarity must be understood historically. This chapter argues that the critical point for the emergence of the principle lay in Thomas Aquinas’s theological interpretation of Aristotle’s political philosophy and his application of it to the institutional pluralism of medieval Europe. From Aristotle, Aquinas developed the idea that human societies naturally progress from families, through villages to entire city-states, but he recognised that what Aristotle said of city-states could be applied not only to cities but even more emphatically to political communities on the scale of provinces, kingdoms and (perhaps even) empires. Moreover, for Aquinas, the civil order was not the only ‘perfect community’ in Aristotle’s sense: there was also the church in all of its many grades and jurisdictions, alongside the many different religious orders and fraternities of medieval Europe, some of them also organised into their own graded hierarchies. Reflecting on the complexity of the society surrounding him, Aquinas acknowledged the many and various purposes for which various associations and forms of human community exist and are formed, giving rise to a whole host of familial, geographical, professional, mercantile, scholarly and other specialised societies. All of these groups and groupings, from the smallest to the largest, have their place and their proper function, according to Aquinas, and each should to be allowed to make its unique and special contribution as a means to integral human fulfillment, without undue interference from any others, including the state.

Mueller on European federation: A reply from the perspective of Australian federalism

Dennis Mueller has recently made a significant contribution tounderstanding issues of federalism and confederalism in theEuropean Union – from a particular public choice point of view. Hefurnishes an important and provocative discussion of therelationship between the decision-making rules embodied in aconstitutional convention (or other means of drafting a form ofunion for constituent states) and the decision-making rules whichwill be contained in the constitution which is the outcome of thatconvention. However, Muellers veiled preference for a certainideal form of federalism for Europe tends to reduce the parametersof his discussion, and gives his article an unrealistic and narrowfocus, despite its ambitious scope. The present article exploressome of the latent complexities in the public choice analysis anddesign of European integration, particularly by drawing on thewider experience of working federations and theory of federalism,using the unique and synthesizing Australian experience as a pointof departure. It argues that Muellers analysis is biased towardsthe reduction of decision-making costs of European governance, andthus undervalues the external costs that may be imposed throughexcessive central government.

The Gibbs Court

The High Court under the chief justiceship of Sir Harry Gibbs was distinctive for three important reasons. The first was the consolidation and defence of the integrity of the Court in the context of major challenges to its public reputation. The second concerns the jurisprudential legacy of the Court. The Gibbs Court was important for the way it shaped Australian federalism, with new themes in taxation, environmental, and Indigenous politics providing the context for a reassessment of the powers of the Commonwealth and the states and the constitutional relationship between them. Third, the Court was notable for the emerging variety of judicial techniques and legal philosophies adhered to by its Justices. At the risk of over-simplification, these ranged from the conservative legalism of Gibbs CJ, Sir Keith Aickin, Sir Ronald Wilson, and Sir Daryl Dawson; to the democratic-human rights radicalism of Lionel Murphy J; with the measured and often mediating stances taken by Sir Ninian Stephen and Sir Gerard Brennan; as well as the not yet fully apparent legal realism of Sir Anthony Mason and Sir William Deane, usually lying somewhere in-between. Chief Justice Gibbs played a crucial role in the defence of the Court’s integrity, whereas his views on federalism proved to be less influential. His stance on the constitutionalisation of human rights carried the Court during his leadership, but was eclipsed by the Court under the succeeding Chief Justice, Mason.

Australian Federalism: Past, Present and Future Tense

At its inception, the Australian federation was informed by a rich set of ideas about the nature of federalism, and a strong acceptance of both its necessity and its benefits. Today, over one hundred years later, this necessity and those benefits are under question – by Australian politicians, business leaders, professionals, academics and, most importantly, the Australian people. In this chapter, we maintain that federalism necessarily has a future in Australia, but it will only have an effective future if it is reformed and the reform is both well-informed and coherently designed. We argue that that only by paying attention to federalism’s benefits – and not just its deficits and problems – can we expect reform proposals to have the coherence and political attractiveness needed for them to be implemented in practically effective ways. By bringing together eminent lawyers, economists and political scientists to analyse and evaluate the Australian federal system in comparative perspective, this book seeks to contribute to the explanation and development of the theory and principles underpinning of the Australian federal system, as well as the practical realities in which it operates, and in this way to help build the impetus for sensible, measured, coherent and effective reform.

'A Commonwealth of Commonwealths': Late Nineteenth-Century Conceptions of Federalism and Their Impact on Australian Federation, 1890-1901

Abstract This article utilizes the Australian experience of federation, 1890–1901, as a vehicle for the discussion of the leading conceptions of federalism extant in the late nineteenth-century English-speaking world. In particular, the article examines the federal theories of James Madison, James Bryce, Edward Freeman, Albert Dicey and John Burgess in the context of many others, and seeks to show that the idea of a ‘Commonwealth of commonwealths’, although controverted by contending theories, remained a central theme in late nineteenth-century conceptions of federalism.

The Rule of Law, Religious Authority, and Oaths of Office

The rule of law requires political office holders to exercise their powers in accordance with the law. Most societies, however, rely not only on the moral obligation to obey the law but also require office holders to take a religious oath or solemn affirmation. The divine witness to the oath of office stands in as a guarantor of the political order but also looms above it. As such, the oath represents a paradox. It guarantees the performance of official duties while also subjecting them to external judgement. The oath thus encompasses the large question of the relationship between religious conviction, personal fidelity, moral principle, and political power. It suggests that law and religion are as much intertwined as separated in today’s politics. By tracing the oath of office as a sacrament of power, much light can be shed on the relationship between law and religion in today’s liberal-democratic politics.

Transcatheter mitral valve intervention: an emerging treatment for mitral regurgitation

Mitral regurgitation (MR) is a valvular heart disease associated with significant morbidity and mortality. Transcatheter mitral valve intervention (TMVI) repairs or replaces the mitral valve through small arterial and venous entry sites and so avoids risks associated with open heart surgery. Transcatheter devices targeting components of the mitral apparatus are being developed to repair or replace it. Numerous challenges remain including developing more adaptable devices and correction of multiple components of the mitral annulus to attain durable results. The mitral valve apparatus is a complex structure and understanding of the mechanisms of MR is essential in the development of TMVI. There will likely be a complementary role between surgery and TMVI in the near future.