Abstract
This article addresses the question of what part courts should play in preserving the states’ role in the federation by focusing upon Australia’s experience in this regard. The High Court of Australia’s efforts to confine federal legislative powers in order to protect areas of state sovereignty is relevant to American constitutional law in that the relationship between federal and state powers in the Australian Constitution is similar to that created by the U.S. Constitution. The influence of the American model upon the constitutional structure of the Australian federation is confirmed by evidence of the intent of the Australian constitutional framers and by early decisions of the High Court. Moreover, after the enactment of the Australian Constitution in 1901, the High Court placed itself in an analogous position to the U.S. Supreme Court at the time by adopting conceptions of federalism-based limitations on federal legislative powers approved by U.S. Supreme Court in Collector v. Day and late nineteenth century American commerce clause cases.
On the basis of these similarities, this article seeks to determine what can be learned from Australian jurisprudence about the issues in Garcia and the many questions left open by that decision. Part one of this article describes the doctrinal developments in late nineteenth century U.S. Supreme Court decisions that influenced the High Court after the adoption of the Australian Constitution in 1901. Part two discusses the impact of the United States’ federal model upon the Australian Constitution and the success of the protections to state sovereignty afforded by the analogous constitutional limitations developed in Australia. Part three examines the High Court’s rejection of the intergovernmental immunities and reserved powers doctrines in1920 and the High Court’s attempts since that date to formulate constitutionally-supportable, functional protections for aspects of state sovereignty against intrusion by federal legislative powers. In parts four and five, the article concludes that the Australian experience confirms the Garcia majority’s judgment as to the workability of implied constitutional limitations that attempt to identify and protect areas of traditional state sovereignty. In addition, recent developments in Australia suggest possible content for the residual role of the judiciary in the Garcia majority’s conception of the American federation.
Recommended Citation
Eichhorst, John E. and McCallum, Ronald C.
(1989)
"Garcia and Judicially-Imposed Constitutional Protections of State Sovereignty: The Australian Experience,"
Florida Journal of International Law: Vol. 4:
Iss.
3, Article 3.
Available at:
https://scholarship.law.ufl.edu/fjil/vol4/iss3/3