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msdn channel 9

atNickHodge Episode 9: The Australian Constitution: with Peter Black, QuT

By Nick Hodge | April 30, 2009

 

Thanks to Deks and Peter Black for an edu­ca­tional show.

Rough Pro­duc­tion notes from this show:

OHAI, TEH INTERWEBS. Wel­come to #atNick­Hodge, “Aus­tralian Con­sti­tu­tion. Yes, We have one“
Meta-backchannel Pro­du­cer is Dekrazee1: thanks! dir­ect Qs to her in the chat, and we’ll get ‘em sent to us via the meta Backchan­nel
Kit­tehs: new agent, now requir­ing appear­ance fees.
The tshirt avail­able from crikey.com.au @firstdogonmoon
#zom­bieguineapig­flu — Chat with Emmah Klein, an old work col­league, mum of two kids under 5; Whoop­ing Cough in Day Care — source The World Today — Wed­nes­day, 11 March , 2009
ABC Radio reporter: Meredith Grif­fiths Six weeks ago, a baby died of Whoop­ing cough in New South Wales, the first such death in more than eight years. Dr Jeremy McAn­ulty, dir­ector of the Com­mu­nic­able Dis­eases of NSW Health: He says there were more than 3000 cases of whoop­ing cough in the first two months of this year, com­pared to just under 450 in the same period last year.
The last big out­break of whoop­ing cough was in 1997 when nine people died across Aus­tralia.
Quick recap on last week “The Lost Uncles“
Alan Seymour’s play “One Day of the Year” (1960) 1983, how many minds did this infect?
rehigh­light; feed­back on the topic
Mike Sey­fang @fang’s mes­sage
strange obser­va­tion on the chat, it seems people might be listen­ing. Inter­est­ing, and I am humbled: thanks
This show comes from my learn­ing that the exec­ut­ive powers over the Mil­it­ary Forces is held in the hands of the Governor-General.
Tonight to help me in light of my per­sonal Con­sti­tu­tional Crisis, I have Peter Black, Lec­turer in Con­sti­tu­tional Law, Queens­land Uni­ver­sity of Tech­no­logy
[at 8:35pm] Aus­tralian Con­sti­tu­tion. Yes, We have one
Intro­du­cing our Spe­cial Guest this even­ing, Peter Black
Polit­ics at all levels, includ­ing the US
Why does Peter love teach­ing the law?
Move from Internet/IP Law to Con­sti­tu­tional Law. Why not Con­tract Law or Crim­inal Law, or even Cor­por­ate Law
Can you tell a Con­sti­tu­tional Law stu­dent vs. Cor­por­a­tions Law?
Is it that High Court / Con­sti­tu­tional Law seems to cover all of these bases?
Ques­tion: Social media, MSM activ­it­ies and QuT: clear guidelines in place?
Back to Basics 2. Civic His­tory
From His­tory: Australia’s makeup (States), col­on­ised and incor­por­ated sep­ar­ately through 18th and 19th cen­tur­ies
Push to nation­al­ise Aus­tralia from 1880: Sir Henry Parkes (Ten­ter­field Ora­tion, rail­way guages as an example); fol­lowed by Deakin VIC, Bar­ton NSW (law­yers) as drivers; with other drafters of sec­tions.
Stalled in the 1880s due an eco­nomic depres­sion (almost sent Bar­ton broke)
Post 1892 more of a pop­u­list move to Fed­er­a­tion (Bar­ton lead, not pro­fes­sional politi­cians)
Rise of labour move­ments in par­al­lel with fed­er­al­ism
Vari­ous con­fer­ences, drafts from 1890 through to the final
Many inter-State pres­sures: NSW wanted free trade, Vic­toria wanted pro­tec­tion­ism.
Paro­chi­al­ism SA, WA, TAS (note: Qld, Bris­bane was not in favour!)
NZ atten­ded one of the first con­fer­ences in 1890
Treaty of Wait­angi with the Maori poten­tially pre­cluded this? More a dif­fer­ent sense of iden­tity.
Pur­posely neg­lected to Con­sti­tu­tion­ally describe what are “reserve powers“
Assump­tion was made that these powers were reflec­ted and incor­por­ated the same con­cepts of respons­ible gov­ern­ment as to the Brit­ish par­lia­ment
Does this provide a level of flex­ib­il­ity in our sys­tem?
State-based Ref­er­en­dums through late 19th cen­tury
White men only in the vot­ing? yes! this is true. ouch!
WA was “last state into” (by the skin of its teeth) the Con­sti­tu­tion and Fed­er­al­ism
There seems to be a sub­text of anatag­on­ism from our WA cous­ins to the East coast
wanted to do their own thing, inde­pend­ent streak.
Can WA suc­ceed from the Fed­er­a­tion?
In April 1934, a ref­er­en­dum in West­ern Aus­tralia pro­duced a 68% yes vote to leave the Com­mon­wealth of Aus­tralia with the aim of return­ing to the Brit­ish Empire as an autonom­ous ter­rit­ory. No action was taken in the Brit­ish Par­lia­ment because no request was received from the Aus­tralian Gov­ern­ment in line with the Stat­ute of West­min­ster.
http://www.principality-hutt-river.com/
The Act: Com­mon­wealth of Aus­tralia Con­sti­tu­tion Act 1900 (Imp), an Act of the Par­lia­ment of the United King­dom
Bar­ton nego­ti­ated this through UK Par­lia­ment, First Aus­tralian PM, then moved on to the High Court
Barton’s last minute Privy Coun­cil nego­ti­ation in rela­tion to “brit­ish com­mer­cial interests”:
what is the Privy Coun­cil?
1927: King in vs. King of
1942: Stat­ute of West­min­ster 1931; Aus­tralia imple­men­ted in 1942: From Domin­ions to true Coun­tries; true legal sep­ar­a­tion (except for privy coun­cil)
1986: Privy Coun­cil sep­ar­a­tion: High Court is the final arbiter of our laws
Begs the ques­tion, when exactly were we our own coun­try? Are we this with “Queens Rep­res­ent­at­ive“
I am a repub­lic­a­tion, thanks to form­at­ive 1980s movies Gal­lipoli and Breaker Mor­ant
To Become a Repub­lic: does it require a Con­sti­tu­tional Change? Yes, have to be a ref­er­en­dum
Does the UK have to do any­thing in their laws, or can we just bug­ger off?
The Con­sti­tu­tion, as a doc­u­ment
Chapters, with sec­tions
Inter­est­ing parts
Sec­tion 92 provides that “trade, com­merce, and inter­course among the States shall be abso­lutely free”. The pre­cise mean­ing of this phrase is the sub­ject of a con­sid­er­able body of law.
The exec­ut­ive power is ves­ted in the Governor-General “as the Queen’s rep­res­ent­at­ive” (Sec­tion 61), as is the command-in-chief of the armed forces (Sec­tion 68)
cf: con­sti­tion­al­ity of the Great Fire­wall of Aus­tralia
Divi­sion of powers: State vs Fed­eral
1920 Har­vester case in terms of state vs fed­eral powers/equal?
Move to Fed­er­al­ism
external powers (Sec­tion 51(xxix) of the Aus­tralian Con­sti­tu­tion)
in rela­tion to inter­na­tional treat­ies (Tas world her­it­age area)
Cor­por­a­tions Law in 1980s
The court sys­tem
(state court sys­tems)
Fed­eral Court (mat­ter of Fed­eral law)
High Court of Aus­tralia
High Court is last court in Aus­tralia for all court cases
High Court judges auto­mat­ic­ally ‘retire’ at 70; less chance of gam­ing the sys­tem with polit­ical appointees (vs. US sys­tem)
Modification/Changes — move­ments of change
Does the concept of Com­mon Law apply, mod­i­fied by cases?
How does this dif­fer from a Ref­er­en­dum style change? (8/44 suc­cess rate of ref­er­en­dums)
So, what do you actu­ally teach?
It seems you could keep the con­sti­tu­tion + rel­ev­ant con­sti­tu­tional cases in your head
Case Stud­ies:
Express vs. implied freedoms
apart from reli­gion etc, polit­ical free speech etc
Leads onto “Bill of Rights” vs US sys­tem where the Bill is found­a­tional
The Dis­missal: 1975 : Con­sti­tu­tional pinup case
Queensland’s Joh star­ted it
star­ted with sen­ate changes, from states, against con­ven­tion
With­hold­ing of money
Dimissal of exec­ut­ive gov­ern­ment; not done since 1834 (King Wil­liam IV)
(yes) Chapter II, ‘reserve powers’ but are lim­ited by con­ven­tion? WTF is con­ven­tion and reserve power

Topics: atnickhodge, history | No Comments »

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