TY - JOUR
T1 - Making sense of s 96
T2 - tied grants, contextualism and the limits of federal fiscal power
AU - Gogarty, Brendan
N1 - Funding Information:
The relevance of the Pape decision to s 96 was hinted at a year later in ICM Agriculture Pty Ltd v Commonwealth (‘ICM Agriculture’).90 The special case involved a challenge to an intergovernmental agreement partly supported by s 96, which regulated agricultural water supply. The plaintiffs argued this amounted to an acquisition of property other than on just terms, as required by s 51(xxxi) of the Constitution. The majority (6:1) determined that the regulation of such licenses did not constitute an acquisition of property, and thus the s 96 question did not fall for consideration.91 Indeed, half the majority chose not to address it at all.92 However, those who did (French CJ, Gummow and Crennan JJ) accepted that the terms and conditions of a s 96 grant must conform to the limits of s 51(xxxi).93 That is, such terms and
Publisher Copyright:
© 2019 Melbourne University Law Review. All rights reserved.
PY - 2019
Y1 - 2019
N2 - This paper continues a wider debate about the interpretation and operationalisation of s 96 of the Australian Constitution. That debate began in this journal over 30 years ago with the critical analysis of the orthodox interpretation of the section by Cheryl Saunders. Despite this, and recent political controversies about the use of s 96 by the Commonwealth, there is yet to be a direct constitutional assault on the orthodox interpretation of the provision. However, there has been increasing incidental consideration of the section as a result of greater scrutiny on the financial provisions of ch IV of the Australian Constitution. This jurisprudence significantly advances our understanding of the role and function of s 96 and assists us to resolve many of the outstanding questions first raised here. This paper will explore that jurisprudence and suggest an approach to the section that ensures it can operate within the constitutional system of federal fiscalism, rather than outside of it.
AB - This paper continues a wider debate about the interpretation and operationalisation of s 96 of the Australian Constitution. That debate began in this journal over 30 years ago with the critical analysis of the orthodox interpretation of the section by Cheryl Saunders. Despite this, and recent political controversies about the use of s 96 by the Commonwealth, there is yet to be a direct constitutional assault on the orthodox interpretation of the provision. However, there has been increasing incidental consideration of the section as a result of greater scrutiny on the financial provisions of ch IV of the Australian Constitution. This jurisprudence significantly advances our understanding of the role and function of s 96 and assists us to resolve many of the outstanding questions first raised here. This paper will explore that jurisprudence and suggest an approach to the section that ensures it can operate within the constitutional system of federal fiscalism, rather than outside of it.
UR - http://www.scopus.com/inward/record.url?scp=85079432368&partnerID=8YFLogxK
M3 - Review Article
AN - SCOPUS:85079432368
SN - 0025-8938
VL - 42
SP - 455
EP - 505
JO - Melbourne University Law Review
JF - Melbourne University Law Review
IS - 2
ER -