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Making Sense of S 96: Tied Grants, Contextualism, and the Limits of Federal Fiscal Power


Gogarty, B, Making Sense of S 96: Tied Grants, Contextualism, and the Limits of Federal Fiscal Power, Melbourne University Law Review, 42, (2) pp. 455-505. ISSN 1839-3810 (2019) [Refereed Article]

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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.

Item Details

Item Type:Refereed Article
Keywords:constitution, federal fiscal power, tied grants, federalism, s 96
Research Division:Law and Legal Studies
Research Group:Public law
Research Field:Constitutional law
Objective Division:Law, Politics and Community Services
Objective Group:Government and politics
Objective Field:Government and politics not elsewhere classified
UTAS Author:Gogarty, B (Associate Professor Brendan Gogarty)
ID Code:136066
Year Published:2019
Deposited By:Law
Deposited On:2019-11-28
Last Modified:2019-12-16
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