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

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posted on 2023-05-20, 08:37 authored by Brendan GogartyBrendan Gogarty
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.

History

Publication title

Melbourne University Law Review

Volume

42

Pagination

455-505

ISSN

1839-3810

Department/School

Faculty of Law

Publisher

Melbourne University Law Review Association Inc.

Place of publication

Australia

Rights statement

Copyright 2019 Melbourne University Law Review

Repository Status

  • Open

Socio-economic Objectives

Government and politics not elsewhere classified

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