Gerard Carney

Constitutional framework for regulation of the Australian uranium industry

Gerard Carney — Sun, 12 Sep 2010 16:31:38 PDT

An outline of the constitutional legal foundations for the present regulation of the Australian uranium industry and the potential for those constitutional foundations to authorise significant change to the current regulatory scheme.

The constitutional framework for water resources management

Gerard Carney et al. — Mon, 26 Jul 2010 23:11:27 PDT

The control of water resources in Australia is traditionally the responsibility of the states. The Commonwealth was not given an express legislative power over this resource at federation but has the capacity to affect, directly and indirectly, water resources management through several of its legislative and financial powers. Until 2007, this had occurred mainly by the adoption of policy guidelines and the provision of financial assistance in relation to environmental protection and the fostering of interstate trade in water entitlements. Due to its limited powers in this area, the Commonwealth had promoted cooperative arrangements with the states.

However, the enactment of the Water Act 2007 (Cth) involves the new assertion of Commonwealth legislative powers as well as, by amendment in 2008, the exercise of powers referred to the Commonwealth by the states. The Water Act establishes a new national framework for gathering and disseminating water resources information. More significantly, the Water Act establishes for the Murray-Darling Basin ('MDB') a new framework for defining environmental limits on water resources exploitation and new rules for enhancing the interstate water market. Nevertheless, state law remains the foundation for the water resources entitlement regimes, and the reason for that is constitutional.

This chapter begins with an outline of the states' constitutional authority under both the powers that accrue to state governments by virtue of their ownership of natural resources and their general legislative powers, which are subject to certain limits under the Commonwealth Constitution and their own constitutions. Secondly, the chapter outlines the legislative powers of the Commonwealth, including its power to override state law. Thirdly, it briefly notes the powers of the territories. Fourthly, it explains the constitutional basis for the use of cooperative federal schemes for water resource management, including the referral of state powers to the Commonwealth that underlies the expansion of its regulation of water resources through the Water Act 2007 (Cth).

A unique and precarious office- The office of Governor-General

Gerard Carney — Thu, 11 Feb 2010 14:45:11 PST

Extract:

The Governor-General of Australia occupies a unique position in our constitutional system. The appointee is personally selected by the Prime Minister, and formally appointed by the Queen under s 2 of the Constitution. In the same way, the occupant of the office is removed from office by the Queen on the instructions of the Prime Minister. No grounds nor process are prescribed for removal. The unprecedented calls for the resignation of the current Governor-General, Dr Hollingworth, the former Anglican Archbishop of Brisbane, highlight this gap in our constitutional arrangements.

Australia- A federal story

Gerard Carney — Thu, 11 Feb 2010 14:45:10 PST

Extract:

This year celebrates the centenary of the federation of the six original British colonies in Australia into the Commonwealth of Australia. National and regional celebrations dot the landscape, focusing on both the past and the future, amidst a population of 18 million who are largely unmoved by the achievement. Yet, this milestone provides an opportunity to raise public awareness of the nature of our constitutional system, its successes and failures, and its future.

Butler- The Governor

Gerard Carney — Thu, 11 Feb 2010 14:45:09 PST

Extract:

Last year, the former butler to Princess Diana was the focus of international media attention when criminal charges against him were dropped after the Queen remembered a conversation with him which supported his defence. In August this year, a different Butler with royal connections in Tasmania was not so fortunate to be saved by his Queen. Perhaps, to avoid the risk of being the first State Governor to be dismissed by the Queen since colonial times, the Governor of Tasmania, Mr Richard Butler, agreed to stand down after a meeting with the Premier. The catalyst was the resignation of the Governor’s Official Secretary and other senior members of the Governor’s household in circumstances which clearly indicated a loss of confidence in their master. This was the final straw in what had been a string of controversies over the vice-regal behaviour of the Governor. Instead of the resignation alleviating the controversy, it actually deepened with the revelation by the Premier that he had agreed to pay Mr Butler an ex gratia payment of $600,000 for standing down 10 months into his term as Governor. By convention, the term is for five years. It was also revealed that the Governor’s annual salary was $370,000 - the highest vice-regal salary paid in Australia by its smallest State.

Abolition and restoration of a Legislative Council: Queensland and the other states

Gerard Carney — Thu, 14 May 2009 18:23:49 PDT

If Australians, Canadians and Americans are, like Britons, living under ‘elective dictatorships’ then how can their elected, single-party ‘government machines’ be kept in check? That is the key question examined in this book.
Contains chapters from twenty-one leading international scholars and politicians on the history, the recent performance, and the future of upper houses of parliament in Australia, Canada, the United States, and the United Kingdom. Overviews bicameralism, the Australian Senate, the international scene and politics in each state including the unique example of Queensland. With a foreword by the Hon Bill Hayden, AC.

Lord Atkin: his Queensland Origins and Legacy

Gerard Carney — Thu, 19 Feb 2009 14:32:32 PST

This article examines the life of Baron Atkin of Aberdovey, one of the most famous English judges of the 20th century, Brisbane born James Richard Atkin. His two most celebrated judgments in the House of Lords have lost none of their importance at the beginning of the 21st century. Each deal with hotly debated legal issues in Australia today: the law of negligence and internal security.

Parliamentary process, intervention in

Gerard Carney — Thu, 19 Feb 2009 14:32:32 PST

This entry on intervention in the Parliamentary process is contained in the Oxford companion to the High Court, published by Oxford University Press. This pioneering reference work is a comprehensive and scholarly publication that examines the High Court of Australia's public work, the Court's role in Australian law, politics and society, and the Court's inner workings.

Constitutional review in Queensland: Consolidation and reform

Gerard Carney — Thu, 19 Feb 2009 14:32:32 PST

This paper provides a discussion of the consolidation and reform of statutes which pertain to 'Constitution of Queensland', including the following areas: public participation in the parliamentary process; ensuring a comprehensive and informative Constitution; protection of judiciary; protection of other statutory office-holders.

Reform of parliamentary privilege

Gerard Carney — Thu, 19 Feb 2009 14:32:31 PST

This chapter by Gerard Carney is in the book 'Peace, order, and good government: state constitutional and parliamentary reform'. The abstract for this book follows:

Fundamental reform of State Constitutions is needed now more than ever. Indeed, the process is underway in all States and Territories. Across Australia there is a growing belief that public institutions must be made more relevant to the needs of an increasingly restless electorate. Parliaments and Constitutions that remain unreformed and unreviewed tend to lose the essential public confidence that is crucial to a healthy representative democracy. Citizen initiated reform, the size and role of the Houses of Parliament, the accountability of Ministers, the role and the method of choice of the Governor, the independence and functions of the Speaker and issues of privilege are all matters of current debate and will remain as key features of future reforms. This book offers a timely contribution to the process of institutional regeneration and poses a range of reforms appropriate for State Constitutions at the start of the new century.

The Ethical Standards of Politicians

Gerard Carney — Thu, 19 Feb 2009 14:32:30 PST

If opinion polls are to be believed, politicians in Australia barely rate above car salesmen and real estate agents for their honesty and integrity. Should we be appalled by this lack of public confidence in the integrity of our members of parliament? Should we be concerned with the viability of our parliamentary system of government? Are we endangering our prosperity by failing to address this betrayal of our public trust? The media at times arouse such anxieties, despite their own integrity rating being little better than that for politicians. A measured response to these concerns is that a good dose of public scepticism of politicians is perfectly natural, even in a democracy, given the political nature of their office. The vast majority of politicians are essentially honest men and women with a commitment to public service. Nonetheless, instances of misconduct by a few, whether this be political abuse of travel entitlements, the misuse of parliamentary privilege, conflicts of interest, or the acceptance of post-ministerial consultancies, compound this inherent public distrust of politicians. So the integrity of politicians comes under fire from two directions: their personal as well as their political integrity. Consequently, an effort is needed to reinforce both these forms of integrity. This chapter explores the development and effectiveness of those efforts in Australia. © Copyright 2007 Federation Press

Comment - The Role of the Attorney-General

Gerard Carney — Thu, 19 Feb 2009 14:32:30 PST

This comment examines the duties and responsibilities of the Attorney-General in relation to the two specific issues of defending the judiciary and intervening in the conduct of a commission of inquiry.

Section 51 (xx): No Power of Incorporation

Gerard Carney — Thu, 19 Feb 2009 14:32:30 PST

The long awaited decision of the High Court of Australia on the validity of certain pivotal sections of the Corporations Act 1989 (Cth), delivered on 8 February 1990, has settled at least for the foreseeable future that the corporations power in s 51 (xx) of the Commonwealth Constitution includes no power of incorporation. This decision in New South Wales & Others v Commonwealth of Australia (hereafter referred to as the Corporations Act case) aroused considerable public and commercial interest if not concern, not only in view of its significant impact on Australian commerce but equally in being an uncharacteristic set back for Commonwealth power.

Whether or not s 51 (xx) encompasses the power to provide for the incorporation of trading and financial corporations has been the subject of intense academic debate? Until this year, judicial consideration of the issue was scant and merely obiter dicta. The enactment by the Commonwealth of the Corporations Act 1.989 squarely raised this issue for the first time.3 The challenge as to the constitutional validity of certain provisions of chapters 2 and 5 of the Act was brought by New South Wales, South Australia and Western Australia and proceeded by way of a stated case to the Full High Court.

The Constitutional Systems of the Australian States and Territories

Gerard Carney — Thu, 19 Feb 2009 14:32:29 PST

This book outlines the constitutional systems of the six Australian states and ten Commonwealth territories. It begins with their history, basic features, role and future within the Australian federation. Its primary focus is on the binding constitutional restrictions which impact on their parliaments and governments. These issues are also dealt with in relation to the three self-governing territories of the ACT, the Northern Territory and Norfolk Island. It is the only Australian legal reference work of its kind which deals specifically with the constitutional systems of the states and territories. This book is for all law students and constitutional law teachers as well as legal advisors to commonwealth, state and territory governments and parliaments. It will also be of interest to Supreme, Federal, and High Court judges, political scientists working in the area of federalism and anyone with an interest in constitutional affairs. © Cambridge University Press 2007

Foreign Allegiance: A Vexed Ground of Parliamentary Disqualification

Gerard Carney — Thu, 19 Feb 2009 14:32:29 PST

Public disillusionment with the major political parties has had a profound effect on the Australian political landscape during the last decade of the twentieth century. Most significant has been the increased number of independents elected to Australian parliaments resulting in the formation of minority governments in several States. Such a political climate encourages a sharper focus on the grounds of disqualification prescribed for candidates and sitting members of parliament. While often ignored in the past, either deliberately or accidentally, this is unlikely to continue. Such grounds have the potential to destabilize the political process by undermining slim government majorities or the election of crucial independent members. Given these risks, all grounds of disqualification in relation to members of parliament should be revised to ensure they are justified and clearly understood.

This article selects for revision that ground of disqualification concerned with foreign allegiance.

The power of privilege

Gerard Carney — Thu, 19 Feb 2009 14:32:28 PST

Parliamentary privilege is meant to protect free speech in parliament but it is also used to score political points - this article takes a look at whether parliamentary privilege needs a make-over.

Members of parliament: Law and ethics

Gerard Carney — Thu, 19 Feb 2009 14:32:28 PST

Members of Parliament - Law and Ethics provides a critical appraisal of the legal and ethical standards of members which underpin the integrity of our parliamentary institutions, by focusing on the three sources of those standards: Part I - Qualifications and disqualifications Part II - Parliamentary privilege Part III - Standards of conduct Linking these three areas is the fundamental duty of members to act in the public interest rather than in their personal interest. While the focus is particularly on the position of members of all Australian parliaments and legislatures, the principles examined are relevant to all Westminster parliaments throughout the Commonwealth. Part I provides a comprehensive analysis of the highly technical grounds of disqualification which candidates and members need to avoid to prevent disqualification from parliament. Part II commences with an overview of the powers and immunities which members enjoy as parliamentary privileges and then proceeds to examine contemporary issues including the impact of the implied freedom of political communication. Part III focuses on particular legal and ethical standards of members, such as those in relation to corruption, confidentiality, and conflict of interest.

Sir Gerard Brennan – the principled judge

Gerard Carney — Thu, 19 Feb 2009 14:32:27 PST

This chapter by Gerard Carney is in the book 'Queensland judges on the High Court'. This book derives from the conference called Queensland's contribution to the High Court hosted by the Supreme Court of Queensland on 29 March 2003. The majority of the papers examine the life and legal contribution of those Queenslanders who served on the High Court Bench prior to 1998.

A reply to Harry Evans, 'Enclosing politicians : the ambitious project'

Gerard Carney — Thu, 19 Feb 2009 14:32:27 PST

A response to the critique, by Harry Evans, of 'Members of Parliament : Law and Ethics', by Gerard Carney, Constitutional Law and Policy Review 3 (2) 2000 : 26-28, 40 - response to remarks made about s 44(iv) of the Constitution.

Egan v Willis and Egan v Chadwick: The triumph of responsible government

Gerard Carney — Thu, 19 Feb 2009 14:32:26 PST

The constitutional significance of Egan v Willis, a decision of the High Court in 1998, and of Egan v Chadwick, a decision of the New South Wales Court of Appeal in 1999, is profound - both within the State of New South Wales and nationally. The cases judicially confirm the fundamental role of each House of Parliament, including the Legislative Council to scrutinise the activities of the Executive branch.