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(Re)interpreting s 96 in light of fiscal federalism: towards a better understanding of one of the last remaining islands of commonwealth spending power

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Gogarty, B ORCID: 0000-0002-9494-6598 2018 , '(Re)interpreting s 96 in light of fiscal federalism: towards a better understanding of one of the last remaining islands of commonwealth spending power' , Melbourne University Law Review, vol. 42, no. 2 , pp. 456-505 .

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Abstract

This paper continues a wider debate about the interpretation and operationalisation ofs 96 of the Australian Constitution. That debate began in this journal over 30 years agowith 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 theCommonwealth, there is yet to be a direct constitutional assault on the orthodoxinterpretation of the provision. However, there has been increasing incidentalconsideration of the section as a result of greater scrutiny on the financial provisions ofch IV of the Australian Constitution. This jurisprudence significantly advances ourunderstanding of the role and function of s 96 and assists us to resolve many of theoutstanding questions first raised here. This paper will explore that jurisprudence andsuggest an approach to the section that ensures it can operate within the constitutional system of federal fiscalism, rather than outside of it.

Item Type: Article
Authors/Creators:Gogarty, B
Keywords: constitutional law, s 96, tied grants, federalism, high court
Journal or Publication Title: Melbourne University Law Review
Publisher: Melbourne University Law Review Association Inc.
ISSN: 0025-8938
Copyright Information:

Copyright 2018 Melbourne University Law Review Association Inc.

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