High Court Review 2006: Australian Federalism—Implications of the WorkChoices Decision

This year's High Court Review focuses exclusively on the WorkChoices decision, in which the federal government's new industrial relations regime was upheld by the High Court as within the Commonwealth's powers under s. 51(xx) of the Constitution, the corporations power. The implications of the judgement are potentially momentous for Australian federalism. Thus, we begin with an overview of changes in Australian federalism over time, including its fortunes in the High Court of Australia. We then consider the WorkChoices decision itself, outlining the most important aspects of the decision. We argue that the decision is the most important High Court decision on the constitutional division of federal powers since 1983, especially in the context of the corporatisation of policy delivery in the past few decades. Moreover, it reinforces the dominance of an orthodoxy in constitutional interpretation, thus confirming the demise of ‘activist’ tendencies. Finally, the judgement demonstrates the Court's preparedness to confirm changes to the workings of Australian federalism that, the evidence suggests strongly, would not pass at referendum. However, this view of the centralist implications of the decision is mediated by a consideration of the workings of intergovernmental relations. An examination of the potential changes in this area reveals a more complicated outcome, one with important implications for the manner in which intergovernmental negotiations might be conducted in future.     

Alienated Outsider or Integrated Courtier? Edward Stafford,Third Duke of Buckingham, 1498–1521 and the Royal Court

Edward Stafford, third duke of Buckingham (d. 1521), is a key example in the historiographical interpretation of relations between crown and nobility as difficult and in conflict under the first two Tudor kings, not least because of his execution for treason in 1521. In particular, he has been seen as an outsider at the Tudor court, playing little role there except perhaps on great set-piece occasions. He was, in this interpretation, unable to adapt to the new role demanded of the nobility by the crown. Yet, drawing on the evidence of his extant and unpublished household accounts, Stafford can be seen to be very regularly at court under both Henry VII and Henry VIII, playing far more than just a ceremonial role, and it was only shortly before his execution that his relationship with Henry VIII soured. The duke's purposes in his attendance at court – service to the king, furtherance of his own business and leisure interests – can be teased out from the accounts, as can relationships with others at court. The study concludes by examining the extent to which the higher nobility expected to be at court and to be influential with the king in the period between 1485 and 1529. An appendix constructs a full itinerary for the duke for 1 April 1506 – 31 March 1507 from the evidence of a household account.     

Error or Appeal? Navigating Review Under the Supreme Court's Admiralty Jurisdiction, 1789–1800

Legal technicalities are boring only when they are no longer susceptible to argument. Ask any lawyer or litigant whose case depends on a question of procedure, practice, or jurisdiction.     

Louis XVI,the Court of the Tuileries,and the Corps Diplomatique 1789–91

The French Revolution sought to erect an edifice which would bridge the chasm between ancien regime realpolitik and a more idealistic vision of international relations based on natural law. The deputies of the Constituent Assembly, despite their noble intentions, failed to do so. They ended up hurtling into an all-too-familiar vortex, where appeals to natural law hid naked military aggression and strategic egocentrism. Whether this outcome was inevitable or contingent on circumstances continues to pose a dilemma for historical writing on the early Revolution. This article explores the question from the unmined perspective of the foreign Ambassadors resident in Paris during the French Revolution. It uses their unpublished despatches and French police reports to shed new light on the French Revolution's alienation from the international relations system of the ancien regime.     

The Bishop and the Queen; or,why did the Bishop of Carlisle crown Elizabeth I?

Elizabeth I is one of only a small group of English monarchs to not be crowned by the Archbishop of Canterbury at their coronation: instead, she was crowned by Owen Oglethorpe, the Bishop of Carlisle. The difficulty Elizabeth had finding a bishop to preside at her coronation is often repeated in the scholarship. An assessment of the English episcopacy at the time of the coronation, however, demonstrates that this ‘difficulty’ is overstated: there were at least ten other bishops who could have presided. This article suggests, then, that Elizabeth specifically chose Oglethorpe to preside at her coronation because of their familiarity with each other, and argues that in the absence of evidence to the contrary, Oglethorpe was not ‘coerced’ into presiding, nor was it a mere ‘accident’.     

Eco‐urbanism and the Eco‐city,or, Denying the Right to the City?

This paper critically analyses the construction of eco‐cities as technological fixes to concerns over climate change, Peak Oil, and other scenarios in the transition towards “green capitalism”. It argues for a critical engagement with new‐build eco‐city projects, first by highlighting the inequalities which mean that eco‐cities will not benefit those who will be most impacted by climate change: the citizens of the world's least wealthy states. Second, the paper investigates the foundation of eco‐city projects on notions of crisis and scarcity. Third, there is a need to critically interrogate the mechanisms through which new eco‐cities are built, including the land market, reclamation, dispossession and “green grabbing”. Lastly, a sustained focus is needed on the multiplication of workers’ geographies in and around these “emerald cities”, especially the ordinary urban spaces and lives of the temporary settlements housing the millions of workers who move from one new project to another.     

A Review of “Political Foundations of Judicial Supremacy: The Presidency,the Supreme Court,and Constitutional Leadership in U.S. History”

In 1974 David Mayhew proposed that incumbency was increasingly important in deciding elections to the House of Representatives. One cause of this increase, he speculated, might be more effective use of the resources of office by incumbents bent on improving their electoral position. These suggestions heavily influenced subsequent research on congressional elections, and helped shape the design of the 1978 national election survey by Michigan's Center for Political Studies. This essay surveys that line of research, except for the recent articles making use of the 1978 data or dealing specifically with campaigning, which will be treated in a sequel. Full length books, articles before Mayhew's, and unpublished papers are excluded, except for certain works of particular relevance.     

A Switzerland of the north? The Nationalistes and a bi‐national Canada*

Abstract. Nationalism is frequently associated with the break‐up of states. This article seeks to demonstrate that nationalism, through the guise of bi‐nationalism, can be compatible with the creation and maintenance of a multinational state. The political vision of the Nationalistes of Québec provides the focus. In the early twentieth century these individuals believed that Canada could emulate states such as Switzerland and Belgium, which were marked by a degree of power‐sharing. They sought the adoption of practices which have since become associated with the doctrine of ‘consociationalism’. The research suggests that these nationalists were conscious that federalism, on its own, is not sufficient to accommodate a significant national minority.     

Globalisation and the decline of national identity? An exploration across sixty‐three countries

The relationship between globalisation and national identity is puzzling. While some observers have found that globalisation reduces people's identification with their nation, others have reached the opposite conclusion. This article explores this conundrum by examining the relationship between globalisation and people's feelings towards national identity. Using data from the International Social Survey Program National Identity II ( 2003 ) and the World Values Survey ( 2005 ), it analyses these relations across sixty‐three countries. Employing a multilevel approach, it investigates how a country's level of globalisation is related to its public perceptions towards different dimensions of national identity. The results suggest that a country's level of globalisation is not related to national identification or nationalism but it is related negatively to patriotism, the willingness to fight for the country and ethnic conceptions of membership in the nation. An examination of alternative explanations indicates that globalisation has a distinct impact on national identity.     

Indigenous minorities of Siberia and Russian sociolinguistics of the 1920s: A life apart?

ABSTRACT

In the 1920s, two strong intellectual trends were simultaneously developing in Russia: the studies of languages and cultures of the indigenous population of Siberia and the Far North (led by Vladimir Bogoras, Leo Shternberg, and others), and sociolinguistic studies (led by Evgeniy Polivanov, Afanasiy Selischev, Rosaliya Shor, and others). Sociolinguistics as a new and fashionable branch of knowledge included many topics (sociolinguistic theory, social dialectology, influence of rapid social changes on language), but there never were attempts to study sociolinguistically the languages of indigenous “Northern” minorities. In 1929 Roman Jakobson and Nikolai Trubetskoy, who by that time were both living abroad, launched a project called “Languages of the USSR.” The project could have united the two trends, but it was soon terminated because of the Great Depression in the West and a sharp turn in Stalin's policy in 1929 when many Russian scholars were prosecuted, academia became split in a fight over who represented “the true Marxism”, and international collaboration became dangerous for Russian scholars. Another reason for the lack of interest in sociolinguistic studies of indigenous minority languages was the evolutionist paradigm of Siberianist cultural anthropology of the time. As a result, the Soviet language planning for Northern indigenous minority languages in the1930s and later did not sufficiently take into account the sociolinguistic aspect of the problem; this may be responsible for its many failures and inconsistencies.     

Constructing British Authority in Australasia: Charles Cooper and the Legal Status of Aborigines in the South Australian Supreme Court,c. 1840–60

In 1840 the South Australian judge Charles Cooper wrote an opinion in which he suggested that Aborigines who had not been in contact with British settlers were not within the jurisdiction of the Supreme Court. The resulting controversy led the Colonial Office to clarify its view on the subjecthood of Aborigines within the colony and the colonial courts' jurisdiction over all subjects in the colony. The criminal jurisdiction of the Supreme Court over Aborigines became politically important because it raised wider questions of imperial authority and colonial policy. By placing Cooper's views in a broader Australasian perspective, the formation of Colonial Office policy and the distinctions between legal categories that informed that policy may be better appreciated. Cooper continued to question the general application of Supreme Court jurisdiction to Aborigines into the late 1840s. This caused a clash with Lieutenant-Governor Robe, who felt that any weakness in the formal authority or jurisdiction of the courts threatened the ability of the government to implement effective policies.     

What is national self‐determination? Nationality and psychology during the apogee of nationalism*

Abstract. The idea of national self‐determination propounded at the 1919 peace conference centred in Paris marked a new era in international relations. In this article I re‐examine the history of the idea of national self‐determination in this period by situating it in the context of ‘the psychological turn’. I argue that national self‐determination came to serve as a popular philosophical basis for post‐war democracy among Entente liberals at a time when the Enlightenment equivalence between democracy and ‘self‐determination’ was under challenge from new scientific depictions of the unconscious and irrational, and the biologically determined self. The focus of my discussion is the psychological discourse that threaded through the versions of national self‐determination articulated by British and French intellectuals during World War I.     

Do nationalist parties shape or follow sub‐national identities? A panel analysis on the rise of the nationalist party in the Flemish Region of Belgium, 2006–11

In this article, we examine the steep and unprecedented rise of the New Flemish Alliance (N‐VA), a Flemish nationalist party in Belgium that succeeded in gaining almost thirty per cent of the vote in a couple of years. During this period, a panel survey among 3,025 late adolescents and young adults was conducted. Our analyses suggest that support for a sub‐nationalist ideology is far more successful in explaining a subsequent vote for the nationalist party than vice versa. In terms of supply and demand mechanisms, we find that N‐VA has managed to address a preexisting reservoir of Flemish nationalist voters (demand), rather than attributing to a development of a stronger Flemish identity among its followers (supply). We should therefore not overestimate the constructionist power of (sub‐)nationalist political elites for the development of (sub‐)nationalist identities.     

Migrating heritage? Recreating ancestral and new homeland heritage in the practices of immigrant minorities

ABSTRACT

This paper problematises the engagement with heritage of immigrants and their new-homeland-born children, bringing together heritage and migration studies. It discusses the use of ancestral heritage in group identity maintenance strategies, and sheds light on minorities’ participation in the heritage of the dominant population. The paper investigates how the ancestral heritage of immigrant minorities has adjusted to the circumstances of the new homeland, and how the elements of heritage of the dominant population were fitted within the festivity routines of minority families. Therefore, it attempts to grasp the transformations of heritage occurring as a consequence of adjusting heritage practices to the new settings. To do so, it employs a notion of ‘heritage in becoming’ that refers to the situational and processual character of recreating inherited practices within the circumstances of the present. The paper proves that the boundary between minority and majority culture in the heritage practices of individuals is blurred, discussing the transformations the traditional heritages of nations undergo under the influence of migration. The author attempts to answer the question of whether these new qualities can be accepted as part of a so-called multicultural heritage of nations.     

The acid test? Competing theses on the nationality – democracy nexus and the case of Switzerland†

ABSTRACT. This article deals with the connection between nationality and democracy and explores the role Switzerland plays in the scholarly debate on this question. It identifies three main theses – liberal‐nationalist, liberal‐multinationalist and liberal‐postnationalist – and shows that each of them uses the Swiss case to claim empirical support. It then analyses the connections between nationality and democracy in Switzerland and demonstrates that the country is neither multinational nor postnational, but is best characterised as a mononational state. These findings expose the fallacy of using Switzerland to claim support for either the multinational or the postnational thesis and call for a reconsideration of them. Additionally, they show that “civic nationalism” and “civic republicanism” can be conflated and that a predominantly civic nation is viable and sustainable and is not necessarily an ethnic nation in disguise. The Swiss case thus provides qualified empirical support for the liberal‐nationalist thesis.     

Genuine Renewal or Pyrrhic Victory? The Scale Politics of Trade Union Recognition in the UK

There is an ongoing debate within radical geography concerned with the trade union response to the hegemony of business interests apparent under neoliberal capitalism. In this paper, I contribute to this debate by exploring recent attempts to renew trade union organisation in the UK following decades of decline. I argue that, despite recent successes in stemming falling membership numbers and signing new recognition agreements, closer inspection reveals flaws in the renewal process that reflect the underlying nature of scale politics within the union movement itself. In particular, centralised strategies at the national level are failing to re‐energise local‐level union organisation leading to a rather hollow and pyrrhic renewal process. Drawing upon both macro‐level analysis and evidence from a particular industry case study, I suggest that unions rethink their organisational geographies and scalar relations if they wish to re‐connect with the grassroots and at a broader level remain a progressive force in the changing economic landscape.