Twomey, Anne --- "Reforming Australia's Federal System" [2008] FedLawRw 3; (2008) 36(1) Federal Law Review 57
[∗] Associate Professor in Law, University of Sydney.
[1] Council for the Australian Federation, Communiqué, 9 February 2007. Consideration of a constitutional convention has since been deferred, due to the change in Commonwealth Government, until other election promises concerning Commonwealth-State co-operation have been met.
[2] Business Council of Australia, Reshaping Australia's Federation — A New Contract for Federal-State Relations (2006) 24; Michael Chaney, 'Act Together or Kiss the Federation Goodbye', The Australian Financial Review (Sydney), 22 November 2006, 59; NSW Business Chamber, 2007 Australian Business Priorities: Fixing the Federation (September 2007).
[3] 'Local Government Association of Queensland, 'Councils Support Call for Constitutional Convention' (Press Release, 2006).
[4] Andrew Lynch, 'The Die is Cast and it is Time to Reshape Australian Federalism', The Sydney Morning Herald (Sydney), 15 November 2006, 13; George Williams, 'Expensive Way to Run a Country', The Australian (Sydney), 8 December 2006, 14; Dean Jaensch, 'Time to Rewrite the Constitution — Just Keep MPs Out', The Advertiser (Adelaide), 18 April 2007, 20.
[5] Steve Burrell, 'It's Time to Rethink the Economics of Federation', The Sydney Morning Herald (Sydney), 22 February 2007, 20; Editorial, 'States of Disarray: it's Time to Fix the Federation', The Sydney Morning Herald (Sydney), 10–11 March 2007, 36.
[6] Bob McMullan, 'After the War with the States is Over: Reform in a Post-Howard Era', (Speech delivered to CEDA, 6 September 2007).
[7] Matt Wade, 'States' Self-Interest Could Stymie Rudd's Reform Plans', The Sydney Morning Herald (Sydney), 26 November 2007, 3.
[8] Due to the difficulty in obtaining up to date English translations of some foreign Constitutions, some provisions referred to in this article may no longer be current. However, they remain useful examples.
[9] For a discussion of the economic and social benefits of federalism, see Anne Twomey and Glen Withers, 'Australia's Federal Future', (Federalist Paper No 1, Council for the Australian Federation, April 2007). See also Jonathan Pincus, 'Six Myths of Federal-State Financial Relations' (CEDA, Economic and Political Overview 2008, February 2008), with regard to the economic advantages of federalism.
[10] OECD, Economic Surveys: Australia (2006) 82.
[11] OECD, 'Fiscal Relations Across Government Levels', Economic Studies No 36 (2003) 161.
[12] Ibid 177. This is known as 'welfare-induced migration'.
[13] For a discussion of subsidiarity and its application see Jonathan Pincus, 'Productive Reform in a Federal System' Productivity Commission, Productive Reform in a Federal System — Roundtable Proceedings (2006) 27–9; Neil Warren, Benchmarking Australia's Intergovernmental Fiscal Arrangements (NSW Department of Treasury, 2006) 31–4; Business Council of Australia, above n 2, 23–6; and OECD, above n 11, 161, 174.
[14] Warren, above n 13, 34–5.
[15] Constitution of Switzerland art 42.
[16] Thomas Stauffer et al, 'Switzerland' in Ann Griffiths (ed), Handbook of Federal Countries 2005 (2005) 346. See also s 146 of the Constitution of South Africa for a different approach.
[17] OECD, above n 10, 81–3.
[18] National Commission of Audit, Report to the Commonwealth Government (1996) 52.
[19] Ibid 58–9.
[20] Constitutional Commission, Final Report of the Constitutional Commission (1988).
[21] Productivity Commission, above n 13.
[22] Business Council of Australia, above n 2.
[23] See, for example, Federal-State Relations Committee, Parliament of Victoria, Australian Federalism: The Role of the States (October 1998); Western Australia, Department of Treasury and Finance, Discussion Paper on Commonwealth-State Relations (April 2006); Warren, above n 13; Twomey and Withers, above n 9. The Queensland Government has initiated a report on overlaps and duplication, in order to support proposals for reform: Sean Parnell, 'Beattie to Audit Policy Overlap', The Australian (Sydney), 5 September 2007, 6.
[24] Bob Carr, 'Productivity Growth and Micro-economic Reform' (Speech delivered to CEDA, 27 February 2003) 5–6.
[25] Queensland, Parliamentary Debates, Legislative Assembly, 4 September 2007, 2915.
[26] John Wanna, 'Improving Federalism: Drivers of Change, Repair Options and Reform Scenarios' (2007) 66 Australian Journal of Public Administration 275, 277.
[27] OECD, above n 11; Giampaolo Arachi and Alberto Zanardi, 'Designing Intergovernmental Fiscal Relations: Some Insights from the Recent Italian Reform' (2004) 25 Fiscal Studies 325; Cesare Pinelli, 'The 1948 Italian Constitution and the 2006 Referendum: Food for Thought' (2006) 2 European Constitutional Law Review 329; Arthur Gunlicks, 'German Federalism Reform: Part One' (2007) 8 German Law Journal 111; René Rhinow, 'Swiss Reform and the Long Tradition of Federalism' (2002) 2(5) Federations 19; Thomas Milic, 'Switzerland' (2005) 44 European Journal of Political Research 1213; Brigid Hadfield, 'Devolution in the United Kingdom and the English and Welsh Questions' in Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution (5th ed, 2004) 237.
[28] Arachi and Zanardi, above n 27, 336.
[29] OECD, above n 11, 180.
[30] The areas of university admission and university degrees remain the subject of concurrent legislative power of the Federation, but the Länder may 'deviate' from such laws from August 2008: Rudolf Hrbek, 'The Reform of German Federalism: Part I' (2007) 3 European Constitutional Law Review 225, 236–8.
[31] Gunlicks, above n 27, 121,128; Hrbek, above n 30, 236–8.
[32] Gunlicks, above n 27, 112.
[33] Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1.
[34] New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1 ('Workchoices Case').
[35] Thomas v Mowbray [2007] HCA 33; (2007) 237 ALR 194 ('Thomas').
[36] For example, Commonwealth Constitution ss 90, 92, 114, 115.
[37] See the failure of referenda to expand Commonwealth power in 1911, 1913, 1919, 1926, 1937, 1944, 1946, 1948, 1951, 1973: House of Representatives Standing Committee on Legal and Constitutional Affairs, Commonwealth Parliament, Constitutional Change — Select Sources on Constitutional Change in Australia 1901–1997 (1997) 61–114.
[38] John McMillan, Gareth Evans and Haddon Storey, Australia's Constitution — Time for Change? (1983) 350.
[39] House of Representatives Standing Committee on Legal and Constitutional Affairs, above n 37, 108.
[40] Thomas Hueglin and Alan Fenna, Comparative Federalism — A Systematic Inquiry (2006) 319.
[41] OECD, above n 11, 161.
[42] Ibid 161–2. See also Pincus, above n 9, 44-5.
[43] OECD, above n 10, 77. Contrast Canada, where the federal government raises only 47% of tax nationwide: Hueglin and Fenna, above n 40, 325.
[44] Warren, above n 13, 51.
[45] Commonwealth Constitution s 90.
[46] South Australia v Commonwealth [1942] HCA 14; (1942) 65 CLR 373. See also Victoria and New South Wales v Commonwealth [1957] HCA 54; (1957) 99 CLR 575.
[47] A New Tax System (Commonwealth –State Financial Arrangements) Act 1999 (Cth) sch 2: Intergovernmental Agreement on the Reform of Commonwealth-State Financial Relations.
[48] Commonwealth funding to the States in 2005–6 was effectively 5.1% of GDP (6.5% of GDP less compensation for abolition of State taxes of 1.4%), which is less than the pre-GST position, and a three-decade low: Rory Robertson, 'Budget/Federalism Watch', Macquarie Bank Research Note, 15 May 2007; Rory Robertson, 'Why Canberra's Rolling in Cash' The Australian (Sydney) 6 July 2006, 25.
[49] Commonwealth Constitution s 94. See also John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (1901) 865; Sir William Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1910) 533. Section 94 was rendered largely ineffective by the High Court in New South Wales v Commonwealth [1908] HCA 68; (1908) 7 CLR 179.
[50] OECD, above n 11, 161–2 and 182; Arachi and Zanardi, above n 27, 336.
[51] OECD, above n 11, 167.
[52] Ibid 184.
[53] OECD, above n 10, 86. The Fraser Government's proposal for State piggy-back income taxes failed because the national rate of income tax was not reduced to make room for the States: Ross Garnaut and Vince Fitzgerald, Review of Commonwealth-State Funding — Final Report (2002) 30.
[54] Basic Law (Germany) art 106.
[55] Basic Law (Germany) art 106. See also Federal-State Relations Committee, Parliament of Victoria, Federalism and the Role of the States: Comparisons and Recommendations (May 1999) 226; Hrbek, above n 30, 229. The tax-sharing arrangement is currently under review in Germany.
[56] OECD, above n 10, 75.
[57] Such a proposal was canvassed in 1991 but was dropped when Paul Keating became Prime Minister: Federal-State Relations Committee, above n 23, 230.
[58] Peter Groenewegen, 'The Fiscal Crisis of Australian Federalism' in Allan Patience and Jeffrey Scott (eds), Australian Federalism: Future Tense (1983) 123, 138–40, 153–4; Federal-State Relations Committee, above n 23, 50–2.
[59] Note that the Commonwealth Parliament cannot abdicate its legislative power, so provisions such as s 11 of A New Tax System (Commonwealth-State Financial Arrangements) Act 1999 (Cth), which require the agreement of all States to a change in the GST base and rate, are not legally effective, although they might be politically effective.
[60] OECD, above n 11, 162, 194.
[61] Ibid 195.
[62] Hueglin and Fenna, above n 40, 335.
[63] Arachi and Zanardi, above n 27, 329.
[64] Ibid 337.
[65] This was achieved through the Hobart Declaration of 1989 and the Adelaide Declaration of 1999: The Future of Schooling in Australia, (Federalist Paper No 2, Council for the Australian Federation, April 2007)
[66] Ibid 2, 31. The Commonwealth and States have since agreed to the establishment of a National Curriculum Board as a co-operative measure to develop a national curriculum across key subjects by 2010: COAG, Communiqué, 20 December 2007.
[67] 'A Framework to Guide the Future Development of Specific Purpose Payments' (Discussion Paper, ALP Advisory Group on Federal-State Reform, 2007).
[68] Garnaut and Fitzgerald, above n 53, 70–5; Warren, above n 13; Productivity Commission, above n 13; Business Council of Australia, above n 2; Allen Consulting Group, Governments Working Together? Assessing Specific Purpose Payment Arrangements, Report to the Government of Victoria (2006); OECD, above n 10, 84–6; Twomey and Withers, above n 9; ALP Advisory Group on Federal-State Reform, above n 67; Wanna, above n 26.
[69] COAG has now agreed to this reform: COAG, Communiqué, 20 December 2007.
[70] R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd [1964] HCA 15; (1964) 113 CLR 207, 226.
[71] See, eg, Corporations (Commonwealth Powers) Act 2001 (NSW) ss 5–6.
[72] See, eg, Commonwealth Powers (Family Law — Children) Act 1986 (NSW) s 4.
[73] In Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, it was held by Brennan CJ and McHugh J at 355 and by Gaudron J at 368–9 that the power to enact a law includes the power to repeal it, but this was subject to 'manner and form restrictions', and it is unclear whether s 51(xxxvii) would be regarded as such. See also South Australia v Commonwealth [1942] HCA 14; (1942) 65 CLR 373 where Latham CJ noted at 416 that the Commonwealth Parliament 'cannot repeal an Act which it has no power to enact'.
[74] [2007] HCA 33; (2007) 237 ALR 194, 251 (Kirby J). See also Callinan J at 358–9 regarding the further concern that agreement to the amendment of references should not be delegated by a State to a majority of States.
[75] Constitution of India art 252(2).
[76] Constitution of Malaysia art 76(3).
[77] See, eg, Constitution of South Africa s 44(1)(a)(iii); Constitution of Spain art 150(1).
[78] Constitutional Commission, above n 20, Vol 2, 753–7.
[79] Commonwealth Constitution s 77(iii).
[80] See, eg, Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA).
[81] See, eg, Corporations Act 1989 (Cth) and Corporations (New South Wales) Act 1990 (NSW).
[82] Re Wakim; Ex parte McNally (1999) 198 CLR 511 ('Re Wakim').
[83] For a criticism of the Re Wakim judgments and the consequences of the case, see Dennis Rose, 'The Bizarre Destruction of Cross-Vesting' in Adrienne Stone and George Williams (eds), The High Court at the Crossroads (2000) 186; Jenny Lovric, 'Re Wakim: An Overview of the Fallout' (2000) 19 Australian Bar Review 237; George Williams, 'Cooperative Federalism and the Revival of the Corporations Law: Wakim and Beyond' (2002) 20 Company and Securities Law Journal 160; Graeme Hill, 'Revisiting Wakim and Hughes: The Distinct Demands of Federalism' (2002) 13 Public Law Review 205.
[84] Constitutional Commission, above n 20, Vol 1, 373.
[85] R v Duncan; Ex parte Australian Iron and Steel Pty Ltd [1983] HCA 29; (1983) 158 CLR 535. See also Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd [1939] HCA 27; (1939) 61 CLR 735, 774 (Starke J).
[86] R v Hughes (2000) 202 CLR 535, 553 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[87] R v Hughes (2000) 202 CLR 535, 553–4 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[88] Graeme Hill, 'R v Hughes and the Future of Co-operative Legislative Schemes' [2000] MelbULawRw 18; (2000) 24 Melbourne University Law Review 478; Alex de Costa, 'The Corporations Law and Cooperative Federalism after The Queen v Hughes' [2000] SydLawRw 21; (2000) 22 Sydney Law Review 451; Dennis Rose, 'Commonwealth-State Co-operative Schemes after Hughes: What Should be Done Now?' (2002) 76 Australian Law Journal 631.
[89] Williams, above n 83, 170.
[90] See, eg, Constitution of Austria art 11, 102; Basic Law (Germany) arts 83–5; Constitution of Switzerland art 46.
[91] Stauffer, above n 16, 346.
[92] Constitution of the Russian Federation art 78, 11(3). See also G Alan Tarr, 'Creating Federalism in Russia' (1999) 40 South Texas Law Review 689, 704–5.
[93] Constitution of India art 258, 258A.
[94] Constitution of Spain art 150(2).
[95] Siobhan Harty, 'Spain', in Ann Griffiths (ed), Handbook of Federal Countries 2005 (2005) 329.
[96] Constitution of Malaysia art 80(4).
[97] Constitution of Malaysia art 80(5).
[98] R v Barger [1908] HCA 43; (1908) 6 CLR 41.
[99] D'Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91.
[100] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 ('Engineers' Case').
[101] Geoffrey de Q Walker, 'The Seven Pillars of Centralism: Engineers' Case and Federalism' (2002) 76 Australian Law Journal 678; Julian Leeser, 'Work Choices: Did the States Run Dead?', in Upholding the Australian Constitution, Proceedings of the Samuel Griffith Society, (Vol 19, 2007) 1. See also criticism of the reasoning in Engineers in Geoffrey Sawer, Australian Federalism in the Courts (1967) 130; New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1, 305, 308 (Callinan J).
[102] Melbourne Corporation v Commonwealth [1947] HCA 26; (1947) 74 CLR 31, as reinterpreted in Austin v Commonwealth (2003) 215 CLR 185.
[103] Commonwealth v Cigamatic Pty Ltd [1962] HCA 40; (1962) 108 CLR 372, as reinterpreted in Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410.
[104] For criticisms, see Roderick P Meagher and William Gummow, 'Sir Owen Dixon's Heresy' (1980) 54 Australian Law Journal 25; John Doyle, '1947 Revisited: The Immunity of the Commonwealth from State Law' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 47; Anne Twomey, 'Federal Limitations on the Legislative Power of the States and the Commonwealth to Bind One Another' (2003) 31 Federal Law Review 507; Amelia Simpson, 'State Immunity from Commonwealth Laws: Austin v Commonwealth and Dilemmas of Doctrinal Design' [2004] UWALawRw 3; (2004) 32 University of Western Australia Law Review 44.
[105] See, eg, the interpretative provisions in the Scotland Act 1998 (UK) c 46, including sch 5, Pt II(3), which provides that an exception or illustration with respect to one reserved matter does not affect another reserved matter; s 126(3) which requires the courts to look to the 'purpose' of functions to see if they trespass on reserved matters; s 101(2) which requires Scottish laws to be read narrowly if necessary for them to be held to be within power.
[106] See the conflicting views on this issue in Workchoices Case [2006] HCA 52; (2006) 229 CLR 1.
[107] [1983] HCA 29; (1983) 158 CLR 535, 589 (Deane J).
[108] Re Wakim; Ex parte McNally (1999) 198 CLR 511, 556 (McHugh J).
[109] Williams, above n 83, 160; and Robert French, 'Cooperative Federalism: a Constitutional Reality or a Political Slogan?' (2005) 32(2) Brief 6.
[110] Peter Beattie, 'Commonwealth Must Take a Fresh Look at Federalism', The Australian (Sydney), 30 November 2006, 10.
[111] Basic Law (Germany) art 51.
[112] Constitution of South Africa ss 60–1.
[113] Constitution of South Africa s 65.
[114] Constitution of South Africa s 75.
[115] Constitution of Spain s 69
[116] Note that the nexus between the size of the Senate and the House of Representatives, imposed by s 24 of the Constitution, would probably have to be broken.
[117] Federal-State Relations Committee, above n 55, 220.
[118] Ibid 221.
[119] The Inter-State Commission first operated from 1913 to 1920. It was revived in 1983 but became defunct again in 1989. Michael Coper has suggested that its existence is related to the appearance of Halley's comet. See generally Michael Coper, 'The Second Coming of the Fourth Arm: The Role and Functions of the Inter-State Commission' (1989) 63 Australian Law Journal 731.
[120] The High Court neutered its adjudicative power in New South Wales v Commonwealth [1915] HCA 17; (1915) 20 CLR 54.
[121] Commonwealth Constitution s 128.
[122] Constitution of Brazil art 60.
[123] Constitution of Spain art 166, 87.
[124] Constitution of Russia art 134.
[125] Constitution of the United States art V.
[126] Constitutional Commission, above n 20, Vol 2, 856–872.
[127] Alaska (every 10 years), Connecticut (20 years), Hawaii (9 years), Illinois (20 years), Iowa (10 years), Maryland (20 years), Michigan (16 years), Missouri (20 years), Montana (20 years), New Hampshire (10 years), New York (20 years), Ohio (20 years), Oklahoma (20 years), and Rhode Island (10 years): The Book of the States (2005 ed, Vol 37) 15.
[128] Robert Williams, 'Are State Constitutional Conventions Things of the Past? The Increasing Role of the Constitutional Commission in State Constitutional Change' (1996) 1 Hofstra Law and Policy Symposium 1. Commissions are also used in Switzerland: Hanspeter Tschaeni, 'Constitutional Change in Swiss Cantons: An Assessment of a Recent Phenomenon' (1982) 12 Publius 113.
[129] Robert Williams, 'The Florida Constitution Revision Commission in Historic and National Context' (1998) 50 Florida Law Review 215; and Steven Uhlfelder, 'The Machinery of Revision' (1978) 6 Florida State University Law Review 575.
[130] McMillan, Evans and Storey, above n 38, 350.
[131] See, eg, Select Committee, Parliament of New South Wales, Appointment of Judges to the High Court of Australia (1975).
[132] Constitutional Commission, above n 20, Vol 1, 401.
[133] Max Spry, 'Executive and High Court Appointments', in Geoffrey Lindell and Robert Bennett (eds), Parliament: the Vision in Hindsight (2001) 439.
[134] See Sir Garfield Barwick, 'The State of the Australian Judicature' (1977) 51 Australian Law Journal 480; George Winterton, 'Appointment of Federal Judges in Australia' [1987] MelbULawRw 17; (1987) 16 Melbourne University Law Review 185; Michael Lavarch, Judicial Appointments — Procedure and Criteria (Discussion Paper, 1993); Sir Anthony Mason, 'The Appointment and Removal of Judges' in Helen Cunningham (ed), Fragile Bastion — Judicial Independence in the Nineties and Beyond (1997); Anthony Blackshield, 'The Appointment and Removal of Federal Judges' in Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System (2000) 437–41; Enid Campbell and HP Lee, The Australian Judiciary (2001) 83–6.
[135] Australian Law Reform Commission, Equality Before Law: Women's Equality, Report No 69, Part II, (1994) [9.41].
[136] Constitutional Reform Act 2005 (UK) c 4. Note that this Commission does not deal with appointments to appellate committee of the House of Lords, although the Lord Chancellor has now voluntarily agreed to use the same system to appoint judges to the House of Lords: United Kingdom, Parliamentary Debates, House of Commons, Vol 465, Col 11WS, 24 October 2007. Different systems also operate in Scotland and Northern Ireland.
[137] Simon Evans and John Williams, 'Appointing Australian Judges: A New Model' (Paper Presented at the JCA Colloquium, Canberra, 7–9 October 2006); Ronald Sackville, 'The Judicial Appointments Process in Australia: Towards Independence and Accountability' (2007) 16 Journal of Judicial Administration 125.
[138] James Crawford, Australian Courts of Law (3rd ed, 1993) 62. See also Michael Kirby, The Judges (1983) 22–3; Evans and Williams, above n 137, 32 regarding 'homosocial reproduction'.
[139] Mason, above n 134, 17; and Philip Ruddock, 'Selection and Appointment of Judges' (Lecture presented at the University of Sydney, Sydney, 2 May 2005) [67–9]. See also Campbell and Lee, above n 134, 84; Crawford, above n 138, 62.
[140] George Williams and Rachel Davis, 'Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia' [2003] MelbULawRw 32; (2003) 27 Melbourne University Law Review 819, 859–60; Sackville, above n 137, 137.
[141] See the description of the process in UK Secretary of State for Justice and Lord Chancellor, The Governance of Britain — Judicial Appointments, CM 7210, October 2007, 23–4.
[142] UK Secretary of State for Justice and Lord Chancellor, The Governance of Britain, CM 7170, July 2007, para 71.
[143] UK Secretary of State for Justice and Lord Chancellor, above n 141, 37–40.
[144] Winterton, above n 134, 193–8; Mason, above n 134, 8; Ruddock, above n 139, paras 46–52; and Evans and Williams, above n 137.
[145] Winterton, above n 134, 210; Mason, above n 134, 17; Williams and Davis, above n 140, 858–9; Sackville, above n 137, 137; Sir Gerard Brennan, 'The Selection of Judges for Commonwealth Courts' in Papers on Parliament: No 48 The Senate and Accountability (2008) 14–15.
[146] Evans and Williams, above n 137, 29. This is based on the model adopted for England and Wales. See also the South African model described in Spry, above n 133, 441–2. Note also Sir Garfield Barwick's proposal that the Executive should suggest the list and leave it for the Commission to decide on the appointment: Garfield Barwick, A Radical Tory (1995) 230.
[147] Winterton, above n 134, 209; and Evans and Williams, above n 137, 29.
[148] Such powers have not yet been used: Robert Hazell, 'Out of Court: Why Have the Courts Played No Role in Resolving Devolution Disputes in the United Kingdom? (2007) 37 Publius: The Journal of Federalism 578.
[149] See, eg, the serious difficulties that arose in dealing with the consequences of Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465, and the discussion in that case of prospective overruling.
[150] Business Council of Australia, above n 2.