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The Australian Charities and Not-for-Profits Commission Act 2012 and Australian Charities and Not-for-Profits Commission Regulation 2013 have established a comprehensive regulatory framework for the charities and not-for-profit sector at a federal level. When making the Act and Regulation the Commonwealth relied upon several heads of legislative power in section 51 of the Constitution, the most important of which is the taxation power. This article develops and assesses three arguments why the relevant provisions of the legislative scheme are not supported by the taxation power. These arguments are, firstly, that the Act and Regulations do not have a sufficient connection to the subject matter of taxation, secondly, that they are not reasonably capable of being considered appropriate and adapted to achieving a legitimate purpose or object that falls within the taxation power and, thirdly, that in combination with the Income Tax Act 1986 and Income Tax Assessment Act 1997, they impose an obligation to pay money in a manner that is so arbitrary that they cannot be characterised as laws with respect to the subject matter of taxation. It is concluded that these three lines of argument provide strong reasons why the Act and Regulations are not supported by the taxation power.

This study sought to investigate the characteristics, morbidity (including the rate of infective endocarditis and valve replacement) and mortality of individuals undergoing percutaneous pulmonary valve implantation in Australia and New Zealand since the procedure has been performed.The outcomes of percutaneous pulmonary valve implantation in Australia and New Zealand have not been evaluated. Recent international data, including patients from New Zealand, suggests the rate of infective endocarditis is not insignificant.A retrospective multi-site cohort study was undertaken via medical record review at the centres where percutaneous pulmonary valve implantation has been performed. All procedures performed from 2009-March 2018 were included. Individuals were identified from local institution databases. Data was collected and analysed including demographics, details at the time of intervention, haemodynamic outcome, post procedure morbidity and mortality. Multi-site ethics approval was obtained.One hundred and seventy-nine (179) patients attended the cardiac catheter laboratory for planned percutaneous pulmonary valve implantation. Of these patients, 172 underwent successful implantation. Tetralogy of Fallot and pulmonary atresia were the most common diagnoses. The median age at procedure was 19 years (range 3-60 yrs). There was a significant improvement in the acute haemodynamics in patients undergoing percutaneous pulmonary valve implantation for stenosis. Seven (7) patients (3.9%) experienced a major procedural/early post procedure complication (death, conversion to open procedure, cardiac arrest), including two deaths. The annualised rates of infective endocarditis and valve replacement were 4.6% and 3.8% respectively. There was one death related to infective endocarditis in follow-up.Percutaneous pulmonary valve replacement is a relatively safe method of rehabilitating the right ventricular outflow tract.

This chapter introduces the main theme and purpose of this book, which is to explore the contribution of Christianity to constitutional law and constitutionalism viewed from the perspectives of history, law, and theology. The chapter introduces the topic by reflecting on the emergence and intellectual origins of constitutionalism from its classical antecedents to the present day. Topics covered include Aristotle’s typology of constitutions and his theory of the rule of law, Roman concepts of law and jurisdiction, early Christian teaching on the role of civil authority and the subjection of human laws to natural law, the medieval development of a plurality of jurisdictions defined by law, practices of subsidiarity and federalism, the modern development of written constitutions and the separation of powers, and the emergence of judicial review as a means by which constitutional constraints on government are effectively enforced. The chapter closes by explaining the design and structure of the book and summarizing the content of the specific chapters.

Application of the hybrid algorithm for the treatment of coronary chronic total occlusions requires the operator to readily deploy complex techniques and advanced technologies to achieve successful revascularization. Patient-specific factors and limitations in torquability and material strength of low-profile equipment such as microcatheters can result in procedural complications due to device fracture. Using a mini-series of 2 cases to demonstrate the successful application of antegrade dissection re-entry techniques to overcome such challenges, we highlight procedural complexities and risk, and review prior approaches and literature.

This book explores the contribution of Christianity to constitutional law and constitutionalism viewed from the perspectives of history, law, and theology. The historical chapters recount the relationship between the Christian faith and fundamental ideas about law, justice, government, and constitutionalism by focusing on particular eras and the contributions of specific figures at particular times in history. There are chapters on the Old and New Testaments, the patristic era, early Christendom, the High Middle Ages, the Reformation, and modernity. Key people considered in these chapters include the biblical figures of Moses, Jesus, Paul, and John, as well as later historical figures such as Constantine, Augustine, Thomas Aquinas, Martin Luther, John Calvin, Thomas Cranmer, and Roger Williams, reflecting several of the particular theological traditions that have developed within Christianity over time. The legal chapters focus on several of the central and most important doctrines and principles of constitutional law, evaluating them from a range of Christian perspectives. Key topics include sovereignty, the rule of law, democracy, the separation of powers, human rights, conscience, and federalism. The theological chapters then focus on particular Christian doctrines, exploring their constructive and sometimes critical implications for constitutional law and constitutionalism. There are chapters on revelation, the Trinity, Christology, political authority, natural law, subsidiarity, and eschatology.

This chapter defines subnational/state constitutions as basic documents for given subnational entities which lay down entrenched basic rules on subnational identity, representative structures, organization of powers, fundamental rights and/or policy principles, and require the approval of the people or representatives of the subnational entity. To this end, the chapter deals with problems related to the three main components of the definition: (i) what are constitutions, (ii) what are subnational or state entities, and (iii) what does it mean for a constitution to be ‘adopted’ by a subnational or constituent state entity? Based on the definition, several hypotheses are developed with regards to subnational constitutions and constitutional autonomy.

Australia’s federal framework is fundamental and pervasive. This chapter explains the federal logic of the Australian Constitution, discusses the evolution of the federal system in light of the constitutional framework, and critically evaluates attempts to reform the system. It is argued that, while the Constitution was designed to allow a degree of flexibility in the operation of the federal system, the constitutional, legislative, and administrative changes that have been introduced, frequently supported by the High Court’s centralizing interpretations, have sometimes contributed to problems in the practical functioning of the system rather than ameliorating them. The result has been a path dependency that makes it difficult to institute reforms that would improve the operation and effectiveness of Australian federalism.

The concept of global law envisages a universal community that transcends the contemporary international order of sovereign states. State sovereignty may accordingly be seen as an obstacle to global law. This chapter therefore seeks to bring global law into conversation with sovereignty. It does so by pursuing three questions: first, what is sovereignty; second, what is wrong about sovereignty; and third, what is right about sovereignty? In response to the first question, the chapter shows how state sovereignty plays a crucial role in undergirding the contemporary system of international law. In response to the second question, the argument is that what is wrong about the modern concept of sovereignty is its tendency to attribute to human institutions certain capacities properly acknowledged in God alone. Finally, in response the third question, the chapter proposes that political sovereignty should be understood as nothing more than legitimate jurisdiction, a status rightly possessed in different degrees by the ruling institutions of many different forms of human community, from the smallest and most local to the largest and most global. This is what is right about sovereignty. Conceived strictly in this last way, sovereignty is not something that should be discarded in any quest for global law.

The paper describes and evaluates the response of the Australian federal system to the COVID-19 crisis. It argues that despite serious administrative failures, especially in the State of Victoria, the measures implemented by Australian governments at a Commonwealth, State, Territory and local level have been remarkably successful in containing the virus and providing quality health care to those infected. The federal system has worked relatively well, enabling a nationally coordinated approach with localised variations in governmental response, especially at a State and Territory level, although the policy response has not always been well-adjusted to the needs and circumstances of smaller local communities, especially in rural and remote regions. The centrepiece of the intergovernmental response has been the formation of a 'National Cabinet' composed of the Australian Prime Minister, the State Premiers and the Territory Chief Ministers. The National Cabinet has been relatively sucessful in coordinating the Australian governmental response to the crisis. However, considerable debate has attended its novel features and the likelihood of its continued effective operation once the crisis has passed. It is yet to be seen whether it will facilitate genuinely improved collaboration, effectiveness and accountability over the long term. The paper is divided into three parts. Part I explains the background to Australia's federal system and its response to the crisis. Part II describes the underlying constitutional, legislative and institutional framework in place to deal with major emergencies. Part III analyses the actions taken by each level of government and the intergovernmental coordination secured by the National Cabinet. Part IV evaluates the effectiveness of the response of the Australian federal system and discusses whether its acheivements involve any enduring improvements or reforms to the system.

The story of the development of federalism runs in three intermingling streams. The first of these streams is legal and is particularly concerned with the institution of the international treaty. The second stream is political and particularly concerns the institution of the confederation. The third stream is religious and particularly concerns the institution of the covenant. This paper offers an archaeology of federalism based on an investigation of each of these three streams. As will be seen, however, the three streams intermingle so much that they often become difficult to distinguish. For federalism is simultaneously a legal, political and religious phenomenon.

Human dignity has a long history in philosophy, theology, politics and jurisprudence. Broadly speaking, there are important distinctions to be drawn between classical, patristic, medieval, reformed, liberal and postmodern approaches to the concept. In the development of ideas about human dignity, three key questions have emerged. First, there is the question whether dignity is an attribute of certain privileged classes of human beings or an attribute of all human beings without distinction. Second, there is the question whether human dignity is necessarily associated with the possession or exhibition of certain virtues or qualities of character. Third, there is the question of the extent to which dignity is an attribute of human persons conceived as autonomous and atomized individuals or as persons embedded in an array of associations and communities. This article will explore the implications of classical, patristic, medieval, reformed, liberal and postmodern approaches to the concept of human dignity for each of these three questions. It will do so by focusing on the views of Marcus Tullius Cicero, Gregory of Nyssa, Leo the Great, Bernard of Clairvaux, Thomas Aquinas, Martin Luther, John Calvin, Johannes Althusius, Pope Paul VI, Immanuel Kant and Friedrich Nietzsche. It will be argued that while the older classical conception of dignity understood it to be an attribute that set some classes or groups of human beings apart from others, the idea was transformed under the influence of Stoic philosophy and especially Christian theology into an attribute possessed by all human beings by virtue of their created nature. In the patristic, medieval and reformed perspectives, human dignity was understood to be an attribute of all human persons, conceived not as autonomous and atomized individuals, but as embedded in a great variety of associations and communities. As a consequence, dignity was considered to be something that can never be separated from one’s moral responsibilities as a human being called upon to perform the duties associated with one’s particular calling and station in life. In modern liberal conceptions of human dignity, however, the idea became disassociated from the qualities of one’s character and from the associations and communities in which human beings are naturally embedded. Defining human dignity solely in terms of human freedom and autonomy has resulted in a hollowing, flattening and atomizing of human dignity, culminating in the postmodern thought of Friedrich Nietzsche in which human dignity is reduced to the ‘will to power’, a condition in which ‘man in himself … possesses neither dignity, nor rights, nor duties’.

Federalism and courts intersect in two important ways. The first concerns court adjudication of constitutional disputes about the structure and composition of federal and state institutions of government and the distributions of power between them. The second concerns the design of court systems within federations, with particular emphasis on their organizational features and allocated jurisdictions at federal and state levels. This chapter reviews the ways in which courts understand the constitutional presuppositions of particular federations, and how those presuppositions shape court interpretations of the governing institutions and distributions of power within federations. The chapter shows how such interpretations bear on the degree of centralization and decentralization within federations and how they can either safeguard or undermine the integrity of each federal system of government. Methodological issues associated with the comparative study of courts in federations are also discussed, and key questions for further inquiry are identified.

The Australian Constitution is unique among constitutional instruments. It was primarily designed to federate self-governing British colonies within the British constitutional tradition and to establish institutions of federal government. As such, the constitutional instrument does not contain an entrenched bill of rights. Yet Australia has been a stable federal democracy since its establishment in 1901 and, by international standards, it is consistently assessed as maintaining high levels of personal freedom, political rights, civil liberties and the rule of law. This article considers the place of rights in the Australian federation against Australian constitutional history and its constitutional context.

The rule of law requires political office holders to exercise their powers in accordance with the law. Most societies, however, rely not only on the moral obligation to obey the law but also require office holders to take a religious oath or solemn affirmation. The divine witness to the oath of office stands in as a guarantor of the political order but also looms above it. As such, the oath represents a paradox. It guarantees the performance of official duties while also subjecting them to external judgement. The oath thus encompasses the large question of the relationship between religious conviction, personal fidelity, moral principle, and political power. It suggests that law and religion are as much intertwined as separated in today’s politics. By tracing the oath of office as a sacrament of power, much light can be shed on the relationship between law and religion in today’s liberal-democratic politics.

This article discusses the formation and amendment of federal and federal-like constitutions in a Westminster-derived or post-Westminster context. The four countries considered are Canada, Australia, India, and the United Kingdom. They are chosen for comparison due to their common historical relationship to Britain and the exercise by the British Parliament of sovereign legislative and constitutive authority over their respective territories. While Canada, Australia, and India are today constitutionally independent of Britain, and while substantial autonomy has been conferred on the devolved parliaments of Scotland, Wales, and Northern Ireland within the UK, each country has secured such independence and autonomy differently. Similarly, the constitutional relationship between the federated polity and its constituent polities in each of these countries has evolved in unique ways. This mixture of "similarity" and "difference" offers an opportunity to isolate the potential effect of particular features of the four constitutional systems and to consider the systemic effect those features might have within federal and federal-like constitutions more generally. It is argued that the mechanisms of constitutional amendment within the four countries are best understood in terms of competing locations of effective constitutive authority, as displayed in the processes by which each federal or federalized constitution was originally established and continues to evolve. Approaching the question this way, the uniquely context-dependent nature of the bargains that underlie the formation of federal and federal-like constitutions can be incorporated into a comparative theory that offers a general account of the formation and amendment of such constitutions having broad explanatory power.

TheMillercase concerned the constitutional requirements for the UK to give notice of its intention to withdraw from the EU pursuant to Article 50 of the Treaty on European Union. The parties made submissions in terms of two competing syllogisms. The Government argued that ministers, exercising Crown prerogative, had the power to give notice without statutory authorisation. The Applicants argued that the process required authorisation by Act of Parliament because the UK's withdrawal would deprive people of rights arising under EU law. However, a majority of the Supreme Court decided in favour of the Applicants based on a third and significantly different syllogism, based on the proposition that theEuropean Communities Acthad established EU law-making and law-interpreting institutions as new sources of law'. This note assesses the three competing syllogisms and examines the constitutional significance of the majority's proposition that these new EU sources of law were integrated into UK domestic law without disrupting the principle of parliamentary sovereignty.

The Universal Declaration on Human Rights (1948) begins with the striking claim that the ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. Rather than use words that individualise and universalise in abstract terms, the Declaration describes humanity as an extended family, knit together by ties that are personal, natural and communal. Despite this, the rights enshrined within the Declaration and other international human rights instruments have generally been understood in a way that prioritises the rights of individuals, and the concept of human dignity is often cited in a way that connects it with individual autonomy. However, a close examination of these instruments shows them to presuppose a social ontology in which human beings are not merely isolated individuals, but constituted as members of communities at familial, local, regional, national and global scales. An exploration of this communal embedding of the dignity of all members of the human family has implications for how international human rights are understood, particularly in controversial cases where the rights of human beings conceived as individuals have to be harmonised with the rights of human beings living in community with others. A better understanding of the social ontology presupposed by international human rights law is therefore a prerequisite for addressing problems of harmonisation of this kind.Noting that the individualistic aspects of human rights law are often said to reflect Western influence, this paper traces the historical development of the idea of human dignity in classical, medieval, reformed and modern Western thought. It is argued that while the older classical conception of dignity understood it to be an attribute that set some classes or groups of human beings apart from others, the idea was transformed under the influence of Stoic philosophy and especially Christian theology into an attribute possessed by all human beings by virtue of their created nature. In the early and later medieval and reformed perspectives, human dignity was understood to be an attribute of all human persons, conceived not as autonomous and atomised individuals, but as embedded in a great variety of associations and communities. Moreover, in the classical, medieval and reformed conceptions alike, dignity was considered to be something that can never be separated from one’s moral responsibilities as a human being called upon to perform the duties associated with one’s particular callings and stations in life. It is only in certain modern conceptions that human dignity has become disassociated from the qualities of one’s character and from the associations and communities in which human beings are naturally embedded.It follows that international human rights law, insofar as it recognises a social ontology which is simultaneously individualistic, associational and communal, is not entirely oriented to modern Western atomising conceptions of human dignity, but embraces older Western and possibly wider non-Western conceptions as well.

This paper undertakes an analysis and evaluation of the Exposure Draft of the Religious Discrimination Bill released by the Australian Attorney-General in August 2019. The Bill seeks to implement recommendations of the Expert Panel on Religious Freedom, which delivered its report in May 2018. The Bill would make it unlawful to discriminate on the basis of a person's religious belief or activity, while also affirming the right of religious organisations to maintain their religious character and ethos. While the draft Bill is a very good first step, two problems are identified. First, there is inadequate protection of the ability of religious organisation such as schools and charities to maintain their religious ethos in their staffing decisions. Second, while the Bill seeks to prevent employers from unduly constraining their employees' rights to freedom of expression in their own private time, the safeguards offered by the Bill are too limited and use excessively vague terms to define the kinds of statements that will not be protected.

The Religious Freedom Review was established to examine whether the human right to freedom of religion is adequately protected in Australian law. This article expounds the relevant human rights principles and identifies several ways in which Australian law fails adequately to protect freedom of religion. These include problems with the interpretation of religious freedom exemption clauses in antidiscrimination laws and the ineffectiveness of Human Rights Charters. The Expert Panel made two important recommendations to address these problems. The first is that the International Covenant on Civil and Political Rights Siracusa Principles should guide the drafting of laws that would limit the right to freedom of religion. The second is that objects clauses in anti-discrimination laws should be redrafted to reflect the equal status in international law of the human right to freedom of religion. This article argues that while re-drafting objects clauses will provide important guidance to the courts, narrow interpretations of religious freedom protections have been a consequence of providing protection merely by way of exemption. In order for Australian law to implement the Siracusa Principles adequately, antidiscrimination laws should be amended to positively enshrine the right of religious bodies to select staff who share their religious convictions so as to maintain their religious ethos.

Political philosophies and legal theories rest upon particular accounts of the human condition. Most such theories regard the unitary state as the normal form of political association, while other forms of political arrangement, such as federations, are treated as special cases to be explained and justified within a unitary framework. This article offers an account of the human condition that, on the contrary, regards a federal ordering of society and politics as normative, and which explains various forms of state-organization within that framework. The justification of a federal ordering of politics depends, it is argued, on a federal understanding of human sociality. On this view, a federal system of government is but a particular outworking of an understanding of the human condition that is itself constitutively federal. The result is an account of human sociality that is at first local and particular, but which aspires to the more distant and universal, and in which expressions of human sociality and political ordering work their way outwards, from the local to the universal, in a nested association of relatively small communities that are constitutive of ever larger communities. Such an account of the human condition, it is argued, offers a more complete context from which to understand, and a more coherent set of reasons for favoring, a federal ordering of society and politics.

The principle of subsidiarity offers a criterion for the rational allocation of roles within federations between federal and state governments. The principle states that ‘functions should be performed by the lowest level of government competent to do so effectively’. However, embedded in the principle is a hierarchy: there are ‘higher’ and there are ‘lower’ levels of government. This hierarchy suggests a point of view from which assessments of optimal allocation are to be made. The deeper question, therefore, is this: ‘who will decide for whom?’ The reform of a federal system turns not only on what principles are used, but on questions of process: who will decide what those principles require, and how will they go about doing it? A problem of path dependency lies at the heart of Australia's federal malaise. It is this problem that we need to be grappling with when considering the optimal design of the system. To do so, we need to consider not only the principles but also the processes by which the federal system is to be reformed. This paper draws on the comparative experience of Switzerland, Germany and Austria to provide guidance about how Australia's federal system might best be reformed. If we want to know how to change institutions, we must be attuned to the fact that there is frequently a mismatch between the initial aims of institution-builders and the contemporary value we attach to them.1

Australian politics is organised in profoundly territorial terms. The fundamental reason for this is the essential role played by the constituent states within the Australian federal system. Historically, the states predated the federation and were the presupposition of its very existence. At the time of federation, they offered the essential and unavoidable political infrastructure upon which the entire federal edifice depended, and continues to depend. The constitution entrenched their role and, despite important tendencies towards centralisation, the Australian states cannot be easily abolished or sidelined. Australia’s party system reflects and reinforces the existence of a politics which is both national and regional in its dimensions. Moreover, and underlying diversity between Australia’s states, regions, cities and towns, underscores the need for the kind of policy diversity and policy responsiveness that the Australian federal system makes possible.

This chapter, published in The Oxford Handbook of the Australian Constitution (Oxford University Press, 2018), edited by Cheryl Saunders and Adrienne Stone, examines the design of Australia's federal system. Two historical propositions affirmed in the preamble to the constitution are central to this idea. These are, firstly, that the constitution was predicated on an agreement between the people of the Australian colonies and, secondly, that the intention was to unite the colonies into an indissoluble federal commonwealth. The Australian constitution does not rest upon the consent of an already consolidated people; nor does it create a unitary state. It is the result of an agreement among several mutually independent political communities and it establishes a federal system of government that preserves their continuing existence as self-governing polities. This chapter explains how these central ideas are embodied in the distribution of powers, system of representation, and processes of alteration and amendment established by the constitution.

The frontiers of Australian federalism are potentially as numerous as the many ways in which federalism infuses Australian law and politics. There are frontiers about how we understand the very foundations of the federation, about what makes the federal constitution legally binding, and about how it can be altered in the future. There are frontiers in the practical working of our bicameral system of parliamentary representation – especially the Senate – and ongoing questions about its reform. There are also frontiers in the use by the Commonwealth of its legislative, executive and financial powers – a longstanding issue that has seen the scope and volume of federal legislation and administration grow in virtually every decade since federation. And there are frontiers in the relations between the federal, state and territory governments – a murky landscape, in which not all that happens is open to public view or democratic accountability. In each of these respects the Australian federal system displays a kind of path dependency. Patterns of behavior and institutional decisions settled in the past have had a tendency to lock-in particular institutional pathways in Australian federalism that cannot easily be overcome. This paper, which was presented at the 2018 Public Law Conference held at Melbourne Law School, analyses some of the ways in which Australian federalism is path dependent and discusses the prospects of its reform. It is concluded that without an understanding of the path dependent nature of the system our attempts to reform it are unlikely to be successful and could easily prove to be counter-productive.