Federalism

This week we explore the legal and practical outworking of federalism in Australia. We begin with fundamental questions: why have a federal state? Is federalism appropriate for Australia? Why? Why not? From there we turn to a pressing concern in later lectures on government spending - federal fiscal imbalance.

Characterisation

Characterisation isthe process of determining whether a particular Commonwealth law is one 'with respect to' a relevance head of legislative power in s 51.That is, it is the process by which we determine whether a Commonwealth law is valid or not. If it cannot be properly characterised as a law 'with respect to' one of the heads of legislative power in theConstitution, then the Commonwealth Parliament lacks the authority to make and enforce it. Only the High Court is tasked with interpreting theAustralian Constitution, therefore when the validity of a Commonwealth law is in question, the High Court's jurisdiction is enlivened to determine the issue.

Corporations Power

Our online lecture examines the 'Corporations Power'.Section 51(xx) gives the Commonwealth Parliament the power to legislate with respect to certain kinds of corporations, namely 'trading and financial corporations formed within the limits of the Commonwealth', and 'foreign corporations.' This power has been used to expand Commonwealth power dramatically (and controversially).

We will explore issues of interpretation (what is the scope of the power?) and characterisation (is legislation passed 'in respect to' the power)?

First, we will ask what corporations can be regulated using s 51(xx): What are 'trading and financial corporations formed within the limits of the Commonwealth'? Second, we will then address the "scope" of the corporations power - what activities can be regulated under this power? Thisleads to the heart of the characterisation issue: Must a law relate fundamentally/significantly to a 'trading', 'financial', or 'foreign' quality? Or can a law be on any matter, so long as the constitutional corporation is the object of command?