bluuebunny/crossref_metadata_2025_split huggingface dataset:
Federalism and Gender Equality
Authors: Williams Susan H 
Published: January 2019

AbstractDespite the enormous literature on federalism in constitutional design, and the growing attention to gender equality in constitutional design, there has been remarkably little attention paid to the interaction between the two. This article seeks to provide a summary of the existing literature on this intersection, to apply the insights of that literature to the case of Myanmar, and to offer a contribution concerning the theoretical connections between federalism and gender equality. The analysis generates four primary conclusions. First, federalism is inherently neither good nor bad for gender equality: it all depends on the details of the federal system and the context in which they are applied. Second, there are, nonetheless, some guidelines that can be gleaned from the experiences of countries around the world about the design elements that can make federalism more or less useful for promoting gender equality under different conditions. Third, applying these elements in the case of Myanmar suggests that women's organisations might make common cause with the ethnic minority groups that are negotiating with the government and the army over federalism issues because the women share with these groups certain goals with respect to federal systems. And fourth, there is a connection between gender and federalism, not at the pragmatic or design level, but at the theoretical level. This connection concerns the type of (ideal) orientation that is required of citizens in a federal system and the ways in which that orientation might be valuable for gender equality. It is, then, the character of federal citizens, rather than the federal system itself, that could be inherently beneficial to gender equality.
The Rejection of Constitutional Incrementalism in Nepal’s Federalisation
Authors: Malagodi Mara 
Published: January 2019

AbstractThe relationship between federalism and identity was the single most contentious issue in the drafting of Nepal’s 2015 Constitution, and remains an embattled feature of the country’s post-conflict constitutional settlement. This article explains why ‘constitutional incrementalism’—the innovative constitution-making strategy for deeply divided societies theorised by Hanna Lerner—was ultimately (and wisely) rejected in Nepal’s federalisation process. Historically a unitary state since its creation in the late eighteenth century, Nepal committed itself to federal restructuring in 2007, but profound disagreements endured over the set of institutional choices concerning the features of Nepal’s federal arrangements throughout the constitution-making process (2008–15). Constitutional incrementalism with its emphasis on deferral, ambiguity and contradiction was thought of in some quarters as a pragmatic and instrumental way out of Nepal’s political impasse. In the end, the 2015 Constitution expressly named the provinces (even if by just using numbers) and demarcated their boundaries already at the time of its promulgation. Any changes to this framework can only take place by way of constitutional amendment. This article explains why the incrementalist approach was rejected in Nepal’s federalisation process, and reflects on the conditions under which constitutional incrementalism may succeed in societies that present profound disagreements over the collective identity of the polity.
Fiscal Decentralisation in a Divided State: Bougainville in Papua New Guinea
Authors: Chand Satish 
Published: January 2019

AbstractIs fiscal decentralisation in a polity divided by languages, cultures, tribes, and geography a means to nation-building or a route to secession? I consider the case of Bougainville in Papua New Guinea to provide nuanced information on the above question. This case study reveals that fiscal decentralisation, agreed to as part of a peace agreement signed in 2001 following a decade-long civil war in Bougainville, provided the opportunity for national consolidation. However, tensions surrounding the implementation of arrangements for budgetary support of Bougainville are forcing further fracturing. A definitive answer to the question of whether fiscal decentralisation helped or hindered nation-building will be provided by the referendum, due by mid-2020, when the people of Bougainville will have the option to vote for independence from Papua New Guinea.
‘A Measure of Autonomy’: Federalism as Protection for Malaysia’s Indigenous Peoples
Authors: Harding Andrew 
Published: January 2019

AbstractThis article is a case study of federalism in Malaysia as applied to the East Malaysian states of Sabah and Sarawak, which joined the federation in 1963. It is only in the case of these two states, in the context of Malaysia, that federalism is designed to deal with ethnic issues, the majority in both states being Indigenous people. Protection of these states’ Indigenous people was a priority in 1963 and special status was given to these states in order to provide such protection. The study finds, nonetheless, that this special status has been eroded over the last 55 years by political interference by the federal government, and that the special status of these two states has proved ineffective, and indeed largely unacknowledged at the federal level. Accordingly, this study finds that federalism as protection for Indigenous people has been ineffective and the situation of the Indigenous people has as a result deteriorated over time. The solution, it is suggested, is through democratic empowerment at the state level and for federalism to provide deeper forms of constitutional protection.
The Politics of Secular Federalism and the Federal Governance of Religious Diversity in Asia
Authors: He Baogang , Allison-Reumann Laura , Breen Michael 
Published: January 2019

AbstractA secular approach has dominated federal studies, perhaps because there seems a natural fit between federalism and secularism. However, the federal systems or practices of Asia bring that close association into question, and the federal accommodation of religious demands has not been examined fully. This article focuses on how religion has been approached, accommodated or resisted in federal and quasi-federal states in Asia. We select India, Malaysia, Pakistan, Myanmar, Sri Lanka and Nepal as cases. We first explore the relationship between federalism, secularism and religion, and find that secular values at the point of federalisation played an important role in federalism's establishment, but that they were later modified in the practice of federal accommodation of religion. We also identify and examine the federal governance of religious diversity, which features three types of accommodation—centrally-based, unit-based and group-based accommodation—with accommodative practices sometimes being for the benefit of a majority religion, and sometimes for a minority one.
Assessing Kenya's Cooperative Model of Devolution: A Situation-Specific Analysis
Authors: Gathii James Thuo , Otieno Harrison Mbori 
Published: January 2019

AbstractKenya's form of quasi-federalism termed devolution was introduced under the Constitution of Kenya (2010) (‘2010 Constitution’). This governance system establishes 47 county governments which are constitutionally independent sub-national units with direct election of county level leaders. Given the complexity of devolution's relationship to national politics, as well as the broad variation in how devolution has unfolded in the 47 counties since 2013, this article argues in favour of a situation-specific assessment of devolution in Kenya. This analysis departs from the emerging scholarly consensus of devolution in Kenya represented in two predominant approaches. One approach contends that devolution in Kenya has simply devolved corruption and patronage from the national to the county level. Another approach argues that devolution has so far been relatively successful because it has introduced a new political system at the county level that has a robust system of checks and balances but that has empowered a new dynamic in Kenya's politics at the sub-national level. This article argues the first approach paints the emerging devolution experience with a broad brush that is not reflected in every county or even on every issue. This article has more in common with the second view. However, we argue for a more situation-specific, case by case analysis of devolution to show variations in how devolution has or has not facilitated the delivery of services and opportunities that were prior to 2013 likely to be unavailable particularly in the most economically disadvantaged counties.
A House Divided: Federalism and Social Conflict in Italy
Authors: Lev Amnon 
Published: January 2019

AbstractLooking at Italy, the article argues that government serves as an intervening variable that can mediate the implication of federalism and social division. Its overall argument is that the Italian state maintained its unity through a governmental practice of configuring social division so as not to align on the North/South divide, while engaging in a comprehensive devolution of competencies to the subnational level. Through readings of Carlo Cattaneo and Guiseppe Mazzini, the first part of the article considers the conjunctural factors that allowed for the creation, against all odds, of Italy as a unitary state. The second part considers by what strategies the political parties colluded in preserving the unity of the national territory, and by what forms of devolution power was transferred to the subnational level. In conclusion, the article considers the rise of federalism in Italian politics from the 1990s.
Judicial Power and Consociational Federation: The Bosnian Example
Authors: Schwartz Alex 
Published: January 2019

AbstractAn influential theory, sometimes called the ‘fragmentation hypothesis’, proposes that divided political systems will tend to empower courts because they make it more difficult for political elites to coordinate court-curbing retaliation. Another influential perspective proposes that federal systems are conducive to judicial empowerment because they create a demand for the authoritative adjudication of jurisdictional boundaries and/or they facilitate judicial supremacy over constitutional meaning. If both of these theories are correct, we might expect consociational (ie, power sharing) federations to be especially hospitable to the emergence of powerful courts. With reference to the example of Bosnia-Herzegovina, this article questions this conclusion; it is theorized here that core features of consociational federation will tend to undermine the growth and maintenance of judicial power.
Conciliation and Arbitration in Australia — Where the Emphasis?
Authors: Kirby Richard 
Published: January 2019

I give personal and not official opinions in this article but as the first, and so far only, President of the Commonwealth Conciliation and Arbitration Commission the conciliation and arbitration I discuss shall be those in the national area.The Commission’s work comes under fire from many directions. Those who see it as a predominantly legal institution are very critical. Curiously enough they divide into two opposing sections, the one pointing to the Commission’s failure to adhere strictly to a predictable judicial process and the other condemning it for being too legalistic. On the other hand, there are those who look on the Commission as an economic legislative body and criticise its alleged inability to gauge the impact of its decision making policy on the level of economic activity in Australia. Indeed, all criticisms, if one adopts the exclusively particular view of the Commission which each set of critics has, may have some justification.
The Constitutional Power of the Commonwealth to Regulate Family Relationships
Authors: Sackville Ronald , Howard Colin 
Published: January 2019

One of the more obvious characteristics of Australian federalism hitherto has been the marked reluctance of the Commonwealth to utilize its legislative powers to the full. The only two areas where the limits have been explored with any determination are taxation and industrial disputes. The phenomenon is no doubt a complex one, not to be explained solely or even primarily by reference to the structure of the Constitution or its interpretation by the High Court. Nevertheless both must have a bearing upon it.It would be, for instance, hard to doubt that the Commonwealth has been made lazy in its legislative approach to government by the refusal of the High Court to imply any strict demarcation between legislative and executive functions, and by the Court’s generous interpretation of the scope of the power to attach conditions to money grants to the States under section 96. Similarly, growth of the trade and commerce power manifestly has been inhibited by the scope given to section 92, in marked contrast to the lack of interest shown by the Court in giving substantial content to the prohibition on preference in section 99 in relation to revenue laws.
The Ascertainment of Facts in Australian Constitutional Cases
Authors: Brazil Patrick 
Published: January 2019

The suggestion that the Court should hear evidence touching the question of the constitutionality of a statute is somewhat startling when the possible far-reaching effect of such a course is, upon reflection, rendered apparent. (Barker v. State Fish Commission.)Highly inconvenient as it may be, it is true of some legislative powers limited by definition … that the validity of the exercise of the power must sometimes depend on facts, facts which somehow must be ascertained by the court responsible for deciding the validity of the law. (per Dixon C.J. in Commonwealth Freighters Pty Ltd v. Sneddon).Judicial review of the validity of legislation in a federal system may be regarded as an exercise in the interpretation of legal texts—ascertaining whether the impugned law conflicts with the superior law of the constitution—and therefore as a matter of law in which evidence plays no part or at best a subsidiary one. In the seminal case of Marbury v. Madison, Marshall C.J. ,thus described judicial review: “If two laws conflict with each other”, then in that event “the courts must decide on the operation of each”.
Trade Practices and Consumers: The Plea Non Vult Contendere Cum Domina Regina Et Posuit Se in Gratiam Curiae
Authors: O'Brien J. R. 
Published: January 2019

When a defendant is asked to plead to a criminal charge, he is not restricted to the pleas of guilty and not guilty. Other pleas well known to lawyers include autrefois acquit and the plea to the jurisdiction. Some older pleas such as benefit of clergy have been abolished.The plea of non vult contendere cum domina Regina et posuit se in gratiam curiae is unfamiliar to Australian lawyers. The last reported use of the plea in England was in 1702 in The Queen v. Telnpleman. The report of this case is unfortunately brief:After pleading guilty to an indictment, the defendant may give evidence that justifies the fact in mitigation oj punishment—S.C. 3 Danv. 253. S.C. 1 Salk. 55.After pleading guilty to an indictment, you may give anything in evidence that justifies the fact, or proves him not guilty of the fact; for the entry is non vult contendere cum dominâ Reginâ, sed ponit se in gratiam Curiae. And it is not like the case where one is found guilty by verdict.
Resolving Commonwealth Ambiguity by Reference to State Laws
Authors: Austin R. P. 
Published: January 2019

It is common for courts interpreting words in Commonwealth statutes to invoke State law to clarify the meaning of those words. For example, if a Commonwealth statute uses the word “shareholder” without adequate definition, reference will be made to State law as to the meaning of that word.How is this approach to be justified? Part of the answer is that reference to State law was intended by the Commonwealth Parliament: but where is that intention to be found? Specifically, are sections 79 and 80 of the Judiciary Act 1903-1969 (Cth) relevant?
The Australian Legal Aid Review Report: An Appraisal
Authors: Purcell Terence 
Published: January 2019

Amidst the turmoil of the recent Gair controversy in the Senate the Attorney-General tabled the first report of the Legal Aid Review Committee. Somewhat in keeping with the real political significance of the subject under review, the report was tabled very late one evening. Little or no publicity was given to its tabling, any notice taken being washed away by the turmoil of the times. Some might say that the modest size of the report deserved no greater recognition, but such a view is ungenerous and most certainly naive.The document tabled is quite bulky, the greater part being taken up by the appendices. The almost clinical dissection of the existing legal aid facilities throughout Australia will give the role of this Committee real impetus. For too long lawyers and politicians in Australia have been smugly satisfied with the existing legal aid services. A close examination of the Report's appendices will reveal that local legal aid is very much like a badly moth-eaten patch work quilt.
The Formal Sufficiency of Foreign Marriages
Authors: Fine J. David 
Published: January 2019

It has long been a general rule of common law that a marriage is valid only if formalized in a manner recognised by the law of the place of celebration. This rule is continued in Australian law by explicit statutory provision.In this Article Mr Fine suggests that in Australian Law the category of exceptions to the lex loci celebrationis requirement is significantly wider than in the common law of England. He also finds that in situations outside the scope of the requirement, Australian courts should apply the parties’ domiciliary law to decide formal validity—not the law of the forum, though the latter is used in English courts as the law of second resort.
Freedom of Information in Australia: Issue Closed
Authors: McMillan John 
Published: January 2019

“There is not a crime, there is not a dodge, there is not a swindle, there is not a vice which does not live by secrecy”, said Joseph Pulitzer. Needless secrecy is as difficult to eradicate as the evils which it spawns, though Mr McMillan suggests administrative and legislative techniques that could redress the balance in favour of openness. Much of the article is a discussion of one such technique, freedom of information legislation, and of a report on that topic published in 1976 by an interdepartmental committee established by the Federal Government. By reference to past Australian secrecy, U.S. experience under similar legislation, and bureaucratic inevitability, Mr McMillan argues that legislation based upon the committee’s report would do more to entrench the Administration’s right to withhold official information than to secure the public's right of access to it. Alternative proposals for a freedom of information Act are suggested.Since this article was written the Federal Government has announced that it will introduce a Freedom of Information Bill after considering the committee’s proposals and comments thereon.
The Australian States and Participation in the Foreign Policy Process
Authors: Burmester H. 
Published: January 2019

Recent assertions by the Australian States of a right to participate in the foreign policy process, in particular by the conclusion of international agreements and by the establishment of relations with foreign governments, are examined in the light of constitutional and international law. Some reference is made to Canadian and United States precedents.The author concludes that the Federal Government has, to a large extent, an exclusive executive and legislative competence in matters of foreign relations. However, the States also have certain legitimate concerns and aspirations in such matters. The way in which these State interests can be met, while maintaining a unified Australian voice, is discussed, with particular reference to the new arrangements for co-operation between the Commonwealth and the States in treaty-making, agreed to at the Premiers’ Conference in 1977. The way in which the Commonwealth uses its constitutional powers, as well as the responsibility which the States show in the exercise of their powers in relation to treaty implementation, is likely to determine the course of future constitutional development in this area.
“Unification and Harmonisatton” of the Rules of Law
Authors: Goldring John 
Published: January 2019

In Australia there are nine bodies of legislation; Commonwealth, State and Territorial. The laws within each of these systems may differ from each other in significant ways. Such differences, especially when occurring in areas of “technical law”, may cause considerable inconvenience to Australians and to their legal advisers. In social and economic terms, for many purposes Australia is a single nation, and is not divided by State boundaries. Enactment of uniform laws in each part of Australia could lead to much greater convenience for businesses, individual citizens and lawyers.This article examines some of the ways in which international organisations and bodies within other federal nations have been working towards the unification and harmonisation of rules of law, in selected areas. From this examination, some parallels are drawn with the situation in Australia. The article also makes some suggestions for greater uniformity of laws in Australia against the political background which may explain why law in Australia has come to be diverse.
Eligibility for Consumer Contract Protection under the Trade Practices Act
Authors: Rumble Gary A. 
Published: January 2019

In this article, Mr Rumble examines the 1977 amendments to the Trade Practices Act’s definitions of the words “supply”, “corporation” and “consumer” and their relationship to that part of the Act which gives contractual protection to consumers. The definition sections are tested against the policy goals identified by the Swanson Committee and against the general need for simplicity in consumer protection legislation. The verdict is unfavourable. It is demonstrated that the definition sections have some anomalous results. Mr Rumble argues, further, that the definition sections are a quag of ambiguity and specific areas of uncertainty are discussed to illustrate this argument.Mr Rumble suggests that contract protection be taken out of the Trade Practices Act and incorporated in its own legislative framework.
Antitrust Fall-Out: Tensions in the Australian-American Relationship
Authors: Maher Laurence W 
Published: January 2019

This article examines the Foreign Antitrust Judgments (Restriction of Enforcement) Act 1979 (Cth) (“the 1979 Act“). It was the second legislative response of the Australian Government to steps taken by the Westinghouse Electric Corporation (“Westinghouse“) in its international uranium cartel antitrust suit in the United States District Court in Chicago. That suit and other legislation attributable to the uranium cartel which operated between 1972 and 1975 proceeded for more than four years and, until a recent spate of settlements mentioned later in the article, had been expected to continue well into the 1980s. At the outset it is necessary to say something of the events which provoked the District Court suit and related litigation.In September 1975 Westinghouse announced in the United States that it was unable to fulfil its contractual obligations for the supply of uranium oxide (U3O2). Westinghouse's primary involvement in the nuclear energy industry is as a manufacturer of nuclear power plants (“reactors“) and not as a uranium miner. In the late 1960s reactor sales soared and Westinghouse offered electric utilities low price reactor fuel over long terms as an inducement to capture reactor sales.