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Giornale Di Storia Costituzionale / Journal of Constitutional History Direttore Responsabile N StoriaGiornale di costituzionale n. 24 / II semestre 2012 The Commonwealth of Australia: Themes and Traditions in Australian Constitutional Law and History Il Commonwealth australiano: temi e tradizioni nella storia e nel diritto costituzionale australiano eum > edizioni università di macerata Giornale di Storia costituzionale / Journal of Constitutional History Direttore responsabile n. 24 / II semestre 2012 Issue n° 24 / 2nd semester 2012 Angelo Ventrone Registrazione al Tribunale di Macerata n. 463 dell’11.07.2001 Chief Editors Editore / Publisher Luigi Lacchè, Roberto Martucci, Luca Scuccimarra Edizioni Università di Macerata International Board Via Carducci, 63/a – 62100 Macerata Bruce Ackerman (University of Yale), Vida Azimi (CNRS-Cersa, Paris T (39) 0733 2586081 – F (39) 0733 2586086 II), Bronislaw Backo (Université de Genève), Olivier Beaud (Université [email protected] Paris II, Panthéon-Assas), Giovanni Busino (Université de Lausanne), http://eum.unimc.it Bartolomé Clavero (Universidad de Sevilla), Francis Delperée Distribuited by PDE (University of Leuven), Alfred Dufour (Université de Genève), Dieter ISBN 978-88-6056-347-7 Grimm (Wissenschaftskolleg zu Berlin), António Manuel Hespanha ISSN 1593-0793 (Universidade Nova de Lisboa), Martti Koskenniemi (University of Helsinki), Lucien Jaume (CNRS-Cevipof, Paris), Peter L. Lindseth Tipografia / Printer (University of Connecticut), Martin Loughlin (London School of NonSoloStampa, Camerano (AN) Economics & Political Science), Heinz Mohnhaupt (Max-Planck Institut für Europäische Rechtsgeschichte, Frankfurt am Main), La rivista è pubblicata con un finanziamento del Ministero dei Beni Peter S. Onuf (University of Virginia), Michel Pertué (Université Culturali. Questo numero è stato finanziato con i fondi della ricerca d’Orléans), Jack Rakove (University of Stanford), Dian Schefold PRIN “La dimensione costituzionale della giustizia e i paradigmi del (Universität zu Bremen), Michael Stolleis (Max-Planck-Institut für processo politico nello Stato liberale” (2009 – prot. 2009LKRCFE_001). Europäische Rechtsgeschichte, Frankfurt am Main), Michel Troper This Journal is published thanks to the financial help of the Italian (Université de Paris Ouest-Nanterre-La Défense), Joaquin Varela Ministry of Culture. This issue was funded by the PRIN “La dimensione Suanzes-Carpegna (Universidad de Oviedo), H.H. Weiler (New York costituzionale della giustizia e i paradigmi del processo politico nello Stato University), Augusto Zimmermann (Murdoch University). liberale” (20o9 – prot. 2009LKRCFE_001). Board of Editors In copertina: The Big Picture, the opening of the Parliament of Ronald Car, Ninfa Contigiani, Paola Persano, Monica Stronati Australia (9 May 1901, Melbourne). Painted by Tom Roberts (1853- Editors’ Assistant 1861) (Photo from Wikipedia) Antonella Bettoni Finito di stampare nel mese di dicembre 2012 Address Printed in the month of december 2012 Giornale di Storia costituzionale, Laboratorio di storia costituzionale Prezzo di un fascicolo / Single issue price “A. 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Please remit amount due in Euro drawn on Banca delle Marche, IBAN I libri per recensione, possibilmente in duplice copia, vanno inviati IT75 J060 5513 4010 0000 0018 563 BIC BAMAIT3AXXX payable to alla Segreteria di redazione. La redazione si rammarica di non potersi Edizioni Università di Macerata impegnare a restituire i dattiloscritti inviati. Books for review should be submitted, if possible in two copies, to For further information, please contact: the Editors’ Assistants. The Editors regret the fact that they cannot [email protected] commit themselves to sending back received books and papers to the T (+39) 0733-258 6080 (Mon.-Fri.: 10am-1pm) authors. F (+39) 0733-258 6086 Il Giornale di Storia costituzionale è ind icizzato nelle seguenti banche Gli abbonamenti non disdetti entro il 31 dicembre si intendono dati / The Journal of Constitutional History is indexed in the following rinnovati per l’anno successivo. databases: Subscriptions which are not cancelled by the 31st of December are Scopus – Elsevier; Heinonline; Historical Abstracts – EBSCO; considered renewed for the next year. Summon by Serial Solutions (full-text dal 01.01.2005); Google Scholar; DoGi (Dottrina Giuridica) – ITTIG (Istituto di Teoria e Tecniche dell’Informazione Giuridica)-CNR; BSN (Bibliografia Storica Nazionale); AIDA (Articoli Italiani di Periodici Accademici); Catalogo Italiano dei Periodici – ACNP; Casalini Libri; EUM (Edizioni Università di Macerata). Contents / Sommario giornale di storia costituzionale n. 24 / II semestre 2012 journal of constitutional history n. 24 / II semester 2012 The Commonwealth of Australia: Themes Directions and Traditions in Australian Constitu- tional Law and History / Il Commonwealth 49 The External Affairs Power in Australia and australiano: temi e tradizioni nella storia in Germany: Different Solutions, Similar e nel diritto costituzionale australiano Outcome? / Il potere degli Affari esteri in Australia e in Germania: diverse soluzioni, analogo risultato? jürgen bröhmer 5 Introduction: The Commonwealth of Australia / Introduzione. Il Commonwealth australiano 65 Engineers: The Case that Changed Austral- augusto zimmermann ian Constitutional History / Engineers: il caso che cambiò la storia costituzionale au- straliana michelle evans Foundations 81 The Power of the Purse: An Examination 23 ‘Una società di società’: Why Australia is a of Fiscal Federalism in Australia / Il potere Federation / ‘Una società di società’: perché della borsa: un esame del federalismo fiscale l’Australia è una federazione in Australia nicholas aroney lorraine finlay 35 Why Australia Does Not Have, and Does 95 The Australian Constitution and Expres- Not Need, a National Bill of Rights / Perché sive Reform / La Costituzione Australiana e l’Australia non ha, e non ha bisogno di avere, la qualità espressiva della riforma un Bill of Rights nazionale eric ghosh james allan Contents 117 Interpreting the Australian Constitution: Express Provisions and Unexpressed Gen- eral Principles / Interpretare la Costituzione Australiana: provvedimenti espressi e principi generali inespressi jeffrey goldsworthy 133 The Validity of Henry VIII Clauses in Aus- tralian Federal Legislation / La validità delle Clausole di Enrico VIII nella legislazio- ne federale australiana gabriël a. moens, john trone 145 Australian State Courts and Chapter III of the Commonwealth Constitution – In- terpretation and Re-Interpretation and the Creation of Australian Constitutional “Orthodoxy” / I Tribunali di Stato austra- liani e il Capitolo III della Costituzione del Commonwealth – Interpretazione e re-inter- pretazione e la creazione della “Ortodossia” costituzionale australiana sarah murray 159 Authors / Autori 161 Abstracts 4 Introduction: The Commonwealth of Australia / Introduzione. Il Commonwealth australiano augusto zimmermann This special issue of Journal of government of every colony in Australia the Constitutional History is focused on themes power to amend the common law received and traditions in Australia’s constitutional from England or to amend or repeal law and history. Written by leading English statutes that were in force in the Australian legal academics, the articles colony under the doctrine of reception. contained in this issue were especially The British Parliament could still legislate prepared for a European public who may for the colonies if it indicated that the law not be entirely familiar with the country’s was also to apply to them. rich constitutional history. Held between 1891 and 1899, Australia was colonised by Britain, and representatives of every colony in Australia its path towards independence was gradual. attended constitutional conventions It is not possible to identify a single event which agreed on the elaboration of a that marked the final break with the federal Constitution. Upon the request British Empire. Between 1855 and 1890, of these colonies, the ‘Constitution of responsible government was achieved, and the Commonwealth of Australia Act’ was the Governors of the several colonies were passed by the British Parliament on 5 July bound to invite the leader of the largest 1900, with Queen Victoria assenting to the party or coalition in Parliament to form the Bill four days later. In September 1900, the government. The majority party leader and Queen proclaimed that the Commonwealth the other members in his Cabinet remained of Australia would come into existence on 1 in office as long as they commanded the January 1901. support of Parliament. In 1931, the British Parliament
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