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Administrative Law and Relations between Governments: Australia and Europe Compared

Published online by Cambridge University Press:  24 January 2025

Cheryl Saunders
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Extract

The principal focus of this essay is review of administrative decisions taken in the course of co-operation between governments in a federation or in a constitutional system with some federal characteristics.

The nature of the problem is illustrated, albeit in a different context, by a decision of Sir Anthony Mason in Tasmanian Wilderness Society v Fraser. The decision concerned an inter-governmental body, the Australian Loan Council. The Loan Council was established pursuant to the Financial Agreement, authorised by s 105A of the Australian Constitution. Its members were the Prime Minister and the Premiers of each of the States, or their nominees who were often, in practice, their Treasurers. As it then stood, the Financial Agreement provided for approval of the combined borrowing program of all Australian governments by the Loan Council, under weighted majority voting rules that gave the Commonwealth two votes and a casting vote. In practice, the Loan Council had long since assumed the function of approving the aggregate borrowing program for “larger” semi-government authorities as well, under the socalled “Gentlemen's Agreement”.

Type
Article
Information
Federal Law Review , Volume 28 , Issue 2 , June 2000 , pp. 263 - 290
Copyright
Copyright © 2000 The Australian National University

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Footnotes

*

Editor's note. This paper has been revised since it was delivered in December 1999 to accommodate developments since that date, in particular R v Hughes [2000] HCA 22.

References

1 (1982) 153 CLR 270.

2 The agreement is extracted in Howard, C and Saunders, C, Cases and Materials on Constitutional Law (1979) at 390-397Google Scholar.

3 Clauses 3(9) and (14)(b).

4 Saunders, C, “Government Borrowing in Australia” (1989) 17 MULR 187 at 203-205Google Scholar.

5 This assistance took the form both of underwriting the borrowing program and of providing a proportion of it directly in capital grants: Saunders, C, “Fiscal Federalism-A General and Unholy Scramble” in G Craven (ed), Australian Federation (1992) 101 at 118-119Google Scholar.

6 Commonwealth Budget Paper No 71980-1981.

7 Heritage Commission Act 1975 (Cth), s 30(1).

8 (1982) 153 CLR 270 at 271.

9 Ibid at 276.

10 The following year, the proposal for the dam led to major constitutional litigation between the Commonwealth and Tasmania and to one of the foundation cases in Australian constitutional law: Commonwealth v Tasmania (1983) 158 CLR 1.

11 (1982) 153 CLR 270 at 276-277 per Mason J.

12 Sankey v Whitlam (1978) 142 CLR 1.

13 Commonwealth Budget Paper No 71982-1983 at 35; C Saunders, above n 4 at 214.

14 (1982) 153 CLR 270 at 277.

15 Hadley, C, Morass, M and Nick, R, “Federalism and Party Interaction in West Germany, Switzerland, and Austria” (1989) 19(4) Publius 81Google Scholar.

16 Caenegem, RC Van, An Historical Introduction to Western Constitutional Law (1995) at 225CrossRefGoogle Scholar.

17 Scotland Act 1998.

18 Government of Wales Act 1998.

19 Northern Ireland Act 1998; British-Irish Agreement 1998.

20 B O'Leary, “The British-Irish Agreement of 1998: Results and Prospects” presented to the Conference on Constitutional Design 2000, University of Notre Dame, December 1999. This analysis is not necessarily affected by the suspension of self-government in February 2000, (subsequently restored in June 2000) although it demonstrates its limitations.

21 R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 589 per Deane J.

22 Duncan's case itself dealt with a tribunal jointly established by the Commonwealth and New South Wales. Other contexts include the operation of s 51(xxxviii) (Port MacDonnell Professional Fishermen's Association v South Australia (1989) 168 CLR 340); and the cross-vesting of jurisdiction between Commonwealth, State and Territory courts (Gould v Brown (1998) 193 CLR 346. For an earlier example, dealing with complementary taxation legislation, see Moran Pty Ltd v Deputy Federal Commissioner of Taxation (1940) 63 CLR 338.

23 R v Duncan; Ex parte Australian Iron and Steel Pty Ltd., (1983) 158 CLR 535 at 589 per Deane J.

24 (1999) 163 ALR 270.

25 Ibid at 280 per Gleeson CJ, 288-289 per McHugh J, 304-305 per Gummow and Hayne JJ.

26 For example, Whincop, M, “Trading Places: Thoughts on Federal and State Jurisdiction in Corporate Law after Re Wakim” (1999) 17 Companies and Securities LllW Journal 489Google Scholar; Rose, D, “The Bizarre Destruction of Cross-vesting” (1999) 11 Aus Jo Corp LllW 1Google Scholar.

27 Whether the analysis has significance for other common law federations as well depends in part on the constitutional framework and institutional structures of each. In South Africa, for example, the National Council of Provinces is modelled more closely on the German federation than any other; the Constitution of South Africa also makes specific provision for co-operation. In Canada, the Minister of Inter-governmental Affairs has argued that features of the Canadian federation make inter-governmental relations of “great importance” in contradistinction to federations elsewhere: S Dion “Governmental Interdependence in Canada”, a paper presented to a Canadian Study of Parliament Group Conference, June 11, 2000.

28 Dixon, Owen “The Common Law as the Ultimate Constitutional Foundation” in Owen Dixon Jesting Pilate (1965) at 203Google Scholar.

29 Loughlin, M, “The State, the Crown and the Law” in M Sunkin and S Payne (eds), The Nature of the Crawn (1999) 33 at 43Google Scholar.

30 Ibid.

31 Ibid at 47.

32 Re Wakim (1999) 163 ALR 270 at 302 per Gummow and Hayne JJ. Their reasons were adopted by Gleeson CJ (at 276) and Gaudron J (at 281).

33 Fleiner, T, “Federalism and Society during the 19th century” in J Kramer and H-P Schneider (eds), Federalism and Civil Societies (1999) 69 at 73Google Scholar.

34 Australian Constitution, s 51.

35 Australian Constitution, s 61.

36 Australian Constitution, ss 75 and 76.

37 Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 82 per Dixon J.

38 Constitution, s 73.

39 Constitution, s 77 (iii).

40 (1999) 163 ALR 270.

41 Kable v DPP for New South Wales (1996) 189 CLR 51 at 112 per McHugh J; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562-566; Lipohar v The Queen [1999] HCA 65 at [43-44] per Gaudron, Gummow and Hayne JJ.

42 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 269 per Dixon CJ, McTieman, Fullagar and Kitto JJ.

43 Judiciary Act 1903 (Cth), s 39.

44 Family Court Act 1975 (Cth); Federal Court of Australia Act 1976 (Cth); now, Federal Magistrates Act 1999 (Cth).

45 Judiciary Act, s 38(e); Administrative Decisions Oudicial Review) Act 1977 (Cth), s 9; Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), ss 6 and 3(c),(e); Federal Magistrates (Consequential Amendments) Act 1999 (Cth).

46 Advisory Committee to the Constitutional Commission, Australian Judicial System (1987) at 38.

47 Section Sl(xxxiii), (xxxiv),(xxxvii) and (xxxviii); ss 77 (iii), 105A and 120.

48 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 566-567.

49 Compare R v Hughes [2000] HCA 22 at [53] per Kirby J, referring to co-operation as an “elemental feature of the federal system of government”.

50 Saunders, C, “Accountability and Access in Intergovernmental Affairs: A Legal Perspective” in M Wood, C Williams and C Sharman, Governing Federations (1989) at 123Google Scholar.

51 Saunders, C, “Intergovernmental Relations: National and Supranational” in P Carroll and M Painter (eds), Microeconomic Reform and Federalism (1995) at 52Google Scholar.

52 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 at 6, 8, 9 and 26.

53 R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; FAI Insurances Ltd v Winneke (1982) 151 CLR 342.

54 South Australia v O'Shea (1987) 163 CLR 378; Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274.

55 Although, see the suggestion by Deane Jin R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 587: “It is competent for the legislature to constitute or to authorize the constitution of an entity of a type unknown to the common law.”

56 Sankey v Whitlam (1978) 142 CLR 1; Freedom of Information Act 1982 (Cth), s 33A. For discussion about the release of Australian Transport Advisory Council documents, see Cyclists Rights Action Group v Department of Transport (1994) 35 ALD 187; compare Re Cyclists Rights Action Group and the Department of Transport [1995] WAIC mr 16 (20 June 1995).

57 For example, Administrative Decisions Gudicial Review) Act 1977 (Cth), s 3.

58 Re Wakim; Ex parte McNally (1999) 163 ALR 270.

59 Constitution, s 75(v).

60 Constitution, s 76(ii).

61 Re Wakim; Ex parte McNally (1999) 163 ALR 270; Saunders, C, “In the Shadow of Wakim” (1999) 17 Companies and Securities Law Journal 507-517Google Scholar.

62 Re Cram; ex parte NSW Colliery Proprietors' Association (1987) 163 CLR 117 at 128.

63 Administrative Review Council, Administrative Review and Funding Programs (Report No 37 1994).

64 Environment Protection and Biodiversity Conservation Act 1999 (Cth).

65 The Commonwealth was necessarily a party once New Zealand became involved: Trans Tasman Mutual Recognition Act 1997 (Cth).

66 Mutual Recognition Act 1992 (Cth).

67 Mutual Recognition (New South Wales) Act 1992; Mutual Recognition (Queensland) Act 1992.

68 Intergovernmental Agreement on Mutual Recognition 1992. Although the terms of the Agreement affect the operation of the legislation, the Agreement is not scheduled in the legislation, an all-too familiar treatment of agreements of this kind.

69 Mutual Recognition (South Australia) Act 1993; Mutual Recognition (Tasmania) Act 1993; Mutual Recognition (Victoria) Act 1993; Mutual Recognition (Western Australia) Act 1995.

70 Mutual Recognition (New South Wales) Act, s 4; Mutual Recognition (Queensland) Act, s 5.

71 Victoria, South Australia and Western Australia. Victoria and South Australia also limited their adoption to a fixed period of years: see now Victoria (Mutual Recognition) Act 1998.

72 Mutual Recognition Act 1992 (Cth), s 34.

73 Mutual Recognition Act 1992 (Cth), s 31.

74 Mutual Recognition Act 1992 (Cth), ss 30, 32.

75 Saunders, C, “The Interchange of Powers Proposal, Part I” (1978) 52 ALJ 187Google Scholar.

76 Constitution Alteration (Interchange of Powers) Act 1984 (Cth).

77 Compare the argument that only a specific Bill may be referred: R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Ainvays Pty Ltd (1964) 113 CLR 207. The argument was dismissed: at 225.

78 Graham v Paterson (1950) 81 CLR 1 at 19, 22 and 24-25; R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Ainvays Pty Ltd (1964) 113 CLR 207; Airlines of New South Wales Pty Ltd v New South Wales (1964) 113 CLR 1 at 38 and 53.

79 Sometimes also described as schemes for the application or adoption of laws: Western Australian Legislative Assembly, Standing Committee on Uniform Legislation and Intergovernmental Agreements, Report of Activities 1996-1999 at 57.

80 In particular, Acts Interpretation legislation. For example, Road Transport Reform (Vehicles and Traffic) Act 1993 (Cth), s 14 importing the Acts Interpretation Act of the Commonwealth. mechanism itself. Usually, the enacting jurisdiction is the Commonwealth.

81 The Financial Institutions Code 1992 and the Australian Financial Institutions Commission Act were enacted by Queensland. See also the Gas Pipelines Access Law, enacted by South Australia as schedules 1 and 2 to the Gas Pipelines Access (South Australia) Act 1997 (SA).

82 Corporations Act 1989 (Cth), s 5; Agricultural and Veterinary Chemicals Act 1994 (Cth), s 3; Road Transport Reform (Vehicles and Traffic) Act 1993 (Cth), ss 2 and 13; Road Transport Reform (Dangerous Goods) Act 1995 (Cth), s 4; Road Transport Reform (Heavy Vehicles Regulation) Act 1997 (Cth), s 2.

83 Reference to these was made in a speech by Chief Minister Rosemary Follett to an ANU Public Policy Seminar “How the ACT makes Public Policy”, 21 September 1992. Query whether the position of the ACT is improved or worsened by the prescription in the Road Transport Reform (Dangerous Goods) Act 1995 (Cth) that it was to be “taken to be a law made by the ACT Legislative Assembly” which that Assembly, however, could not amend: s4.

84 Gas Pipelines Access Act (Cth) 1998

85 Including the Australian Competition and Consumer Commission and the Australian Competition Tribunal. See, for example, Gas Pipelines Access (South Australia) Act 1997 (SA), s 13.

86 The financial institutions scheme, for example, provided for the creation of both the Australian Financial Institutions Commission and an Appeals Tribunal. The gas pipelines access arrangements provide for the conferral of scheme authority on Ministers, the ACCC, the NCC and the Australian Competition Tribunal.

87 R v Lydon; ex parte Cessnock Collieries Ltd (1960) 103 CLR 15 at 20.

88 Australian Iron and Steel Ltd v Dobb (1958) 98 CLR 586; R v Lydon; Ex parte Cessnock Collieries Ltd (1960) 103 CLR 15; R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535; Re Cram; Ex parte NSW Colliery Proprietors' Association (1987) 163 CLR 117; Joint Coal Board v Cameron (1988) 24 FCR 204.

89 Coal Industry Act 1946 (Cth); Coal Industry Act 1946 (NSW); R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 554 per Gibbs CJ.

90 Coal Industry Act 1946 (Cth), s 32; Coal Industry Act 1946 (NSW), s 38.

91 Constitution, s 51(i) and (xxxv), respectively.

92 R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535.

93 Ibid at 553 per Gibbs CJ.

94 As they were in this case, at least by the evident intention in the Commonwealth Act that the Tribunal should exercise State powers.

95 (1983) 158 CLR 535 at 553 per Gibbs CJ.

96 Re Cram; Ex parte NSW Colliery Proprietors' Association (1987) 163 CLR 117.

97 Ibid at 131.

98 R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 583 per Brennan J and at 593 per Deane J.

99 For example, Australian Securities Commission Act 1989 (Cth), Agricultural and Veterinary Chemicals (Administration) Act 1992 (Cth), National Road Transport Commission Act 1991 (Cth), Gas Pipelines Access (Commonwealth) Act 1998 (Cth).

100 Some agencies including, most obviously, the Australian Securities and Investment Commission, can be supported in large part by a range of Commonwealth powers. See also R v Hughes [2000] HCA 22 at [40] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

101 For example, the Road Transport Commission Act 1991 (Cth), s 8 and the Agricultural and Veterinary Chemicals (Administration) Act 1992 (Cth). The possibility of reliance on the nationhood power is raised by the remarks of Mason J in Duncan (1983) 158 CLR 535 at 560.

102 Agricultural and Veterinary Chemicals Act 1992 (Cth), s 7(2), Australian Securities Commission Act 1989 (Cth), s 11(7). But cf the different formulation for the conferral of functions on the ACCC for the gas pipelines access arrangements, which provide that the Commission “may perform” conferred functions but 11must not” do so in a way that is contrary to competition principles: Gas Pipelines Access (Commonwealth) Act 1998 (Cth), schedule 1, cl 25.

103 (1999) 163 ALR 270.

104 In Re Wakim Gummow and Hayne JJ held that Commonwealth conferral was necessary for the exercise of jurisdiction by federal courts, for reasons that pertained specifically to courts: ibid at (108]. An analogous argument might be developed for other agencies. Equally, however, their position could be distinguished. In Duncan, Mason J identified the relevant consideration as “intention rather than capacity” but saw, at least in that context, no significant distinction between a section that expressed intention as opposed to one that positively conferred power: (1983) 158 CLR 535 at 564.

105 R v Hughes (2000] HCA 22 at (31] and (34]; cf at (124] per Kirby J.

106 Ibid at (35]; cf at (108] per Kirby J.

107 Ibid at (31] where the majority refers to the use of the incidental power to permit Commonwealth officers to hold appointments. The majority leaves open the possibility that the imposition of a duty was a “constitutional imperative”: at [34].

108 Ibid at [42]; at [115] per Kirby J.

109 Ibid at [39].

110 R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 583 per Brennan J and at 593 per Deane J.

111 In Joint Coal Board v Cameron (1988) 24 FCR 204 Davies J canvassed the application of a range of accountability mechanisms to the Joint Coal Board. See also Senate Standing Committee for Constitutional and Legal Affairs, The Role of Parliament in relation to the National Companies and Securities Commission (Parliamentary Paper 113, 1987).

112 Re Wakim; Ex parte McNally (1999) 163 ALR 270.

113 The Formal Agreement was signed on 22 December 1978. The scheme was superseded by the present corporations scheme in 1990.

114 The Commonwealth Acts were the Companies Act 1981, the Companies (Acquisition of Shares) Act 1980 and the Securities Industry Act 1980. The scheme is described in The Broken Hill Proprietary Co Ltd v National Companies and Securities Commission (1986) 160 CLR 492.

115 Clause 32(1) of the Agreement provided that the Commission was to have “responsibility for the entire area of policy and administration with respect to company law and the regulation of the securities industry”.

116 National Companies and Securities Commission (State Provisions) Acts, s 4(1).

117 Administrative Remedies Agreement 1982. The text is reproduced in C Saunders, “The Co-operative Companies and Securities Scheme” Information Paper 4, Intergovernmental Relations in Victoria Program, The University of Melbourne, 1982, Appendix B.

118 C Saunders, ibid at 29.

119 Formal Agreement 1978, cl 38.

120 Senate Standing Committee for Constitutional and Legal Affairs, The Role of Parliament in relation to the National Companies and Securities Commission (Parliamentary Paper 113, 1987).

121 New South Wales v Commonwealth (1990) 169 CLR 482.

122 Alice Springs Agreement 1990, setting out the heads of agreement: Commonwealth Parliamentary Debates, Senate, 11 December 1990, at 5380. See now the Corporations Agreement 1997 to which reference was made in R v Hughes [2000] HCA 22 at [61] by Kirby J.

123 Now the Australian Securities and Investment Commission.

124 Lionel Bowen, Commonwealth Parliamentary Debates, House of Representatives, 8 November 1990, at 3665.

125 Corporations Act 1989 (Cth), s 37.

126 For example, Corporations Act (South Australia), s 35.

127 Pancontinental Mining Ltd v Australian Securities Commission (1994) 124 ALR 471.

128 Allan v National Companies and Securities Commission No WAG 251986.

129 Schedule l(m).

130 The Broken Hill Proprietary Co Ltd v National Companies and Securities Commission (1986) 160 CLR492.

131 Boys v Australian Securities Commission (1997) 24 ACSR 1. Cf Avamure Pty Ltd v Fletcher Jones and Staff (1996) 22 ACR 256, Enterprise Sheet Metal Pty Ltd (in liq) v Queensland Steel and Sheet Pty Ltd (1995] 1 Qd R 511.

132 Bond v Sulan (1990) 98 ALR 121; Hong Kong Bank of Australia Ltd v Australian Securities Commission (1992) 108 ALR 70; Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 112 CLR 463; Attorney-General v Oates [1999] HCA 35. Cf Kirby Jin R v Hughes [2000] HCA 22 at [121].

133 Joint Coal Board v Cameron (1988) 24 FCR 204. For a different context, and an issue of yet another kind, see Harris v Bryce (1993) 113 ALR 726.

134 Pancontinental Mining Ltd v Burns (1994) 124 ALR 471 at 480 per von Doussa J.

135 Boys v Australian Securities Commission (1997) 24 ACSR 1.

136 Re Cram; Ex parte New South Wales Colliery Proprietors' Association (1987) 163 CLR 117 at 128.

137 See authorities cited above n 132.

138 Joint Coal Board v Cameron (1988) 90 ALR 208 at 211 per Davies J.

139 In the case of co-operation in the coal industry, at leasts 51(i) and (xxxv): R v Hughes [2000] HCA 22 at [46].

140 In Hughes Kirby J observed that it would be impossible to uphold the validity of the law under challenge in that case “based on no more than the operation of the Corporations Act in the Australian Capital Territory and matters incidental thereto”: ibid at [112].

141 (1983) 158 CLR 535 at 560.

142 Lehmbruch, G, “Institutional Linkages and Policy Networks in the Federal System of West Germany” (1989) 19 Publius 221 at 226Google Scholar; Renzsch, W, “German Federalism in Historical Perspective: Federalism as a substitute for a National State” (1989) 19 Publius 17 at 18-20Google Scholar.

143 W Renzsch, ibid at 18 and 20-22. On this period in Germany generally, see Van Caenegem, RC, An Historical Introduction to Western Constitutional Law (1995) at 224-229CrossRefGoogle Scholar.

144 E Sieyes, Qu'est ce que le Tiers Etat? Paris, PUF, “Quadrige” 1989, cited in Zoller, Elizabeth, Droit constitutionnel, Paris, PUF. (2nd ed 1999) at 41-43Google Scholar.

145 Kelsen, H, General Theory of Law and State (1961)Google Scholar.

146 G Lehmbruch, above n 142 at 223. See generally Kelly, J M, A Short History of Western Legal Theory (1992) chs 7-9Google Scholar. For a discussion of the influence of Rousseau, see F Allison, J W, A Continental Distinction in the Common Law (1996) at 50-52Google Scholar.

147 RC Van Caenegem, above n 143 at 126.

148 Kisker, G, “The West German Federal Constitutional Court as Guardian of the Federal System” (1989) 19 Publius 35 at 48Google Scholar.

149 Heun, W, “The Evolution of Federalism” in C Starck (ed), Studies in German Constitutionalism (1995) 168 at 172Google Scholar.

150 See also in relation to Austria, Ohlinger, T, “Unity of the Legal System or Legal Pluralism: the Stufenbau Doctrine in Present Day Europe” in A Jyranki (ed), National Constitutions in the Era of Integration (1999) at 163Google Scholar. In relation to Switzerland, see Fleiner, T, Theorie General de l'Etat (1986) at 213Google Scholar.

151 Merryman, J H, “The Public Law-Private Law Distinction in European and United States Law” in J H Merryman, The Loneliness of the Comparative Lawyer (1999) 76 at 83Google Scholar.

152 Ibid.

153 RC Van Caenegem, above n 143 at 128 ff.

154 In particular, with the creation of a Constitutional Court and the range of specialist court hierarchies.

155 Article 73. The Laender may be empowered to legislate on these: Article 71.

156 Articles 72, 74 and 74A.

157 W Heun, above n 149 at 176.

158 Article 83. In practice, 80% of the administration is carried out by local governments: W Heun, above n 149 at 178.

159 Articles 87-90.

160 Ibid. See the more general Article 87(3), however, making the creation of new federal agencies possible, subject to the agreement of the Bundesrat.

161 “... one looks in vain for a federal building in the Land capitals”: Wehling, H-G, “The Bundesrat” (1989) 19 Publius 53 at 58Google Scholar.

162 Federal Constitution of Austria, articles 11 and 12.

163 Federal Constitution of Switzerland, article 46.

164 In relation to the vertical separation of powers in continental federations generally, see T Fleiner, above n 150 at 221.

165 Foster, N, The German Legal System and Laws (2nd ed 1996) at 38Google Scholar.

166 Ibid at 44; Basic Law, article 95. For comparative statistics on the volume of jurisdiction at each level, see J Massot et Girardot, T, Le Conseil d' Etat (1999) at 56Google Scholar. For the comparable situation in Austria, see Heller, K, An Outline of Austrian Constitutional Law (1983) at 57-61Google Scholar.

167 For administrative law: Verwaltungsgerichte and Oberverwaltungsgerichte.

168 Basic Law, article 95.

169 N Foster, above n 165 at 39.

170 See Administrative Courts Act.

171 W Heun, above n 149 at 179.

172 Ibid at 172.

173 G Kisker, above n 148 at 47-49.

174 Iid at 49.

175 W Heun, above n 149 at 172.

176 G Kisker, above n 148 at 46 referring to the “spirit of confrontation that tends to go with dual federalism”.

177 Ibid at 37: “The fear that Land courts might abuse their jurisdiction in cases involving federal questions... is alien to German judicial thinking.”

178 Ibid at 176.

179 Article 79(3).

180 Article 50.

181 Article 51.

182 H-G Wehling, above n 161 at 58.

183 Articles 105(3) and 106.

184 H-G Wehling, above n 161 at 57 quoting Schindler, P, “Deutscher Bundestag 1949-1987: Parlaments und Wahlstatistik” Zeitschrift Ju.er Parllamentsfragen 18 (1987) at 200Google Scholar.

185 Basic Law, article 54.

186 Basic Law, article 95. See also the involvement of the Bundesrat in the appointment of judges to the Federal Constitutional Court: article 94.

187 High Court of Australia Act 1979 (Cth), s 6.

188 W Heun, above n 149 at 186.

189 Ibid at187.

190 Article 91b.

191 Article 104a.

192 Another principle, concerning equality, has some effect on the distribution of federal grants and on decision-making rules in inter-governmental bodies: W Heun, above n 149 at 174.

193 G Kisker, above n 148 at 40.

194 Article 44.

195 W Heun, above n 149 at 175.

196 Article 20.

197 Currie, DP, Constitution of the Federal Republic of Germany (1994) at 77Google Scholar.

198 G Kisker, above n 148 at 40.

199 D P Currie, above n 197 at 78-80.

200 92 BverfGE 203 (1995), translation by J Kokott.

201 R v Hughes at [2000] HCA 22 at [46]

202 In Germany, as everywhere else, there are challenges to traditional public law principles &om corporatisation and privatisation: Goetz, K and Cullen, P, “The Basic Law after Unification: Continued Centrality or Declining Force” in K Goetz and P Cullen (eds), Constitutional Policy in United Germany (1995) 1 at 27-29Google Scholar.

203 Administrative Courts Act, Administrative Procedure Act, Enforcement of Administrative Judgements Act: N Foster, above n 165 at 136.

204 N Foster, above n 165 at 45.

205 Article 19(4).

206 Article 28(1); Michalowski, S and Woode, L, German Constitutional Law (1999) at 25-26Google Scholar.

207 Scotland Act 1998.

208 Government of Wales Act 1998.

209 Northern Ireland Act 1998.

210 Scotland Act 1998, s 29(2)(a).

211 House of Commons Library, “Devolution and Concordats”, Research Paper 99/84 (1999) at 10.

212 Scotland Act 1998, s 54(2) and (3).

213 Section 63. An example is the administration of European Structural Funds: House of Commons Library, above n 211 at 12.

214 Section 56. An example is the provision of road safety information and training: House of Commons Library, above n 211 at 11.

215 Scotland Act, s 1.

216 Section 44.

217 House of Commons Library, above n 211 at 12.

218 Cf the limited definition of the “Scottish administration” in Scotland Act 1998, s 126.

219 Quoted in House of Commons Library, above n 211 at 12.

220 Ibid.

221 The Constitution of the Republic of South Africa, s 41(1)(h)(vi) (obligation to avoid “legal proceedings against one another”); Constitution of the Federal Republic of Switzerland, article 44(3) (resolution of disputes through negotiation or mediation).

222 For example, Scotland Act 1998, s 29.

223 Memorandum of Understanding between the United Kingdom Government, Scottish Ministers and the Cabinet of the National Assembly for Wales, 1999, para 13.

224 Scotland Act 1998, s 31.

225 Section 33.

226 Cmd 4444, paras 22, 25 and 26.

227 Scotland Act 1998, s 103.

228 House of Commons Library, above n 211 at 24-25.

229 Memorandum of Understanding, para 23.

230 Agreement on the Joint Ministerial Committee, para A1.3.

231 Ibid, para A1.4.

232 Established under the British Irish Agreement.

233 Lord Falconer of Thoroton, then Solicitor-General, JL Deb April 1998 vol 588 21 c1132, quoted in House of Commons Library, above n 211 at 22.

234 For example, under the Scotland Act 1998, ss 56 and 63.

235 See generally, C M G Himsworth, “Judicial Review in Scotland” and Maguire, P, “The Procedure for Judicial Review in Northern Ireland” in B Hadfield (ed), Judicial Review: A Thematic Approach (1995) at 288,370Google Scholar, respectively.