¹ George, Bermann, ‘Taking Subsidiarity Seriously: Federalism in the European Community and the United States’ (1994) 94 Columbia Law Review 331, 348–66Google Scholar. Concerns about centralisation became especially prominent after the Single European Act of 1986 introduced decisions by qualified majority rather than unanimity. On the balance of decision-making rules in the EU, see Koen, Lenaerts, ‘Constitutionalism and the Many Faces of Federalism’ (1990) 38 American Journal of Comparative Law 205Google Scholar.

² For an example, see James, Allan and Nicholas, Aroney, ‘An Uncommon Court: How the High Court of Australia Has Undermined Australian Federalism’ (2008) 30 Sydney Law Review 245Google Scholar.

³ Several reports have argued that, subject to certain qualifications, the principle of subsidiarity ought to guide the reform of the Australian federal system. See, eg, Productivity Commission, Productive Reform in a Federal System, Roundtable Proceedings (2006); Neil, Warren, Benchmarking Australia's Intergovernmental Fiscal Arrangements: Final Report (New South Wales Government, 2006)Google Scholar; Business Council of Australia, Reshaping Australia's Federation — A New Contract for Federal-State Relations (2006).

⁴ These analogies are explored in Nicholas, Aroney, ‘Federal Constitutionalism/European Constitutionalism in Comparative Perspective', European Essay No 45 (The Federal Trust, 2009)Google Scholar, first published in Gert-Jan, Leenknegt (ed), Getuigend Staatsrecht: Liber Amicorum A K Koekkoek (Wolf Legal Publishing, 2005) 229Google Scholar.

⁵ For a qualified defence of comparative constitutional law, see Nicholas, Aroney, ‘Comparative Law in Australian Constitutional Jurisprudence’ (2007) 26 University of Queensland Law Journal 317Google Scholar.

⁶ Treaty on European Union, opened for signature 7 February 1992, [1992] OJ C 191/1 (entered into force 1 November 1993) ('TEU’) preamble. See, likewise, TEU art A. Earlier expressions of the principle of subsidiarity within Community treaties and other instruments are traced in Deborah, Cass, ‘The Word That Saves Maastricht? The Principle of Subsidiarity and the Division of Powers within the European Community’ (1992) 29 Common Market Law Review 1107Google Scholar.

⁷ TEU art G, inserting art 3b into the then Treaty Establishing the European Economic Community.

⁸ Indeed, the principle of subsidiarity applies only to the Community's concurrent powers, and not in relation to areas in which it has exclusive competence. On the disputed distinction between the Community's exclusive and concurrent powers, compare A G Toth, ‘A Legal Analysis of Subsidiarity’ and J, Steiner, ‘Subsidiarity under the Maastricht Treaty', in David, O'Keeffe and Patrick, Twomey (eds), Legal Issues of the Maastricht Treaty (Chancery Law Publishing, 1994) chs 3–4Google Scholar.

⁹ TEU (Consolidated Version, [2010] OJ C 83/13) art 5.

¹⁰ Note, in particular, the substitution of ‘Union’ for ‘Community', on which, see TEU (Consolidated Version, 2010) art 1. In this article, I will continue to refer to the European ‘Community’ (as distinct from the European ‘Union’) when discussing matters pertaining specifically to the Community and its governing institutions prior to the entry into force of the Lisbon Treaty in 2009. Since 1 December 2009, the Union has entirely replaced and succeeded the Community.

¹¹ CfTheodor, Schilling, ‘A New Dimension of Subsidiarity: Subsidiarity as a Rule and a Principle’ (1994) 14 Yearbook of European Law 203Google Scholar.

¹² See, eg, Anne, Twomey, ‘Reforming Australia's Federal System’ (2008) 36 Federal Law Review 57, 59–60Google Scholar; Andrew, Lynch and George, Williams, ‘Beyond a Federal Structure: Is a Constitutional Commitment to a Federal Relationship Possible?’ (2008) 31 University of New South Wales Law Journal 395, 399Google Scholar. See also the reports cited in footnote 3 above. Somewhat wider ranging discussions of the principle's possible application in Australia include Alan, Fenna, ‘The Division of Powers in Australian Federalism: Subsidiarity and the Single Market’ (2007) 2 Public Policy 175Google Scholar and Brian, Head, ‘Taking Subsidiarity Seriously: What Role for the States?’ in A J, Brown and J A, Bellamy (eds), Federalism and Regionalism in Australia: New Approaches, New Institutions? (ANU E Press, 2007) 155Google Scholar.

¹³ Twomey, above n 12, 59.

¹⁴ Warren, above n 3, 31.

¹⁵ Official Report of the National Australasian Convention Debates, Sydney (Acting Government Printer, 1891) 31–2. For a discussion, see Nicholas, Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution (Cambridge University Press, 2009)Google Scholar ch 10.

¹⁶ Gráinne de Búrca, ‘Reappraising Subsidiarity's Significance after Amsterdam’ (Harvard Jean Monnet Working Paper No 7/99, Harvard Law School, 2000) 13.

¹⁷ See Bermann, ‘Taking Subsidiarity Seriously', above n 1, 366.

¹⁸ Alan, Dashwood, ‘The Relationship between the Member States and the European Union/European Community’ (2004) 41(2) Common Market Law Review 355, 368Google Scholar. See also A G, Toth, ‘Is Subsidiarity Justiciable?’ (1994) 19 European Law Review 268Google Scholar.

¹⁹ On the sui generis character of the Community system of law, compare Neil, Walker, ‘Legal Theory and the European Union: A 25th Anniversary Essay’ (2005) 25 Oxford Journal of Legal Studies 581Google Scholar; Bruno, de Witte, ‘Rules of Change in International Law: How Special Is the European Community?’ (1994) 25 Netherlands Yearbook of International Law 299Google Scholar.

²⁰ De Búrca, ‘Reappraising Subsidiarity's Significance', above n 16, 23.

²¹ There is only a very limited literature in Australia discussing the question of the ‘political’ and ‘legal’ safeguards of federalism, to use the terms in which the question has been discussed in the United States. For references to the American and Australian literature, see Allan and Aroney, above n 2, nn 9, 75. See also Stephen, Gageler, ‘Foundations of Australian Federalism and the Role of Judicial Review’ (1987) 17 Federal Law Review 162Google Scholar; Nicholas, Aroney, ‘The Idea of a Federal Commonwealth’ in John, Stone (ed), Upholding the Australian Constitution, Volume 20: Proceedings of the Twentieth Conference of the Samuel Griffith Society (The Samuel Griffith Society, 2008) 1Google Scholar.

²² See Ian, Cooper, ‘The Watchdogs of Subsidiarity: National Parliaments and the Logic of Arguing in the European Union’ (2006) 44 Journal of Common Market Studies 281, 290Google Scholar.

²³ Protocol on the Application of the Principles of Subsidiarity and Proportionality [1997] OJ C 340/150, art 3. The Protocol built on earlier documents, such as the guidelines formulated by the European Council at Edinburgh in 1992 and the Inter-Institutional Agreement on Procedures for Implementing the Principle of Subsidiarity (1993). See Bermann, ‘Taking Subsidiarity Seriously', above n 1, 368–71.

²⁴ Ibid arts 4, 5.

²⁵ Ibid art 9.

²⁶ Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality [2010] OJ C 83/206, art 1.

²⁷ Ibid art 2.

²⁸ Ibid art 5.

²⁹ Jean-Victor, Louis, ‘The Lisbon Treaty: National Parliaments and the Principle of Subsidiarity’ (2008) 4 European Constitutional Law Review 429, 431Google Scholar.

³⁰ Consolidated Version of the Treaty on the European Union [2010] OJ C 83/13, art 12(b). See also Protocol (No 1) on the Role of National Parliaments in the European Union [2010] OJ C 83/203.

³¹ Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality art 6.

³² Ibid arts 4–7. The new Protocol also confirms that the European Court of Justice has jurisdiction where it is alleged that the principle of subsidiarity has been infringed, but adds that the Member States can initiate such challenges: art 8, referring to the Consolidated Version of the Treaty on the Functioning of the European Union [2010] OJ C 83/47 (‘TFEU’), art 263 (ex Treaty establishing the European Community [‘TEC’], art 230). See Louis, above n 29, 440–41.

³³ At so-called ‘yellow light’ or ‘orange light’ levels of intervention, depending on the strength of national parliamentary concern. See George, Bermann, ‘The Lisbon Treaty: The Irish “No”. National Parliaments and Subsidiarity: An Outsider's View’ (2008) 4 European Constitutional Law Review 453, 456Google Scholar.

³⁴ De Búrca, ‘Reappraising Subsidiarity's Significance', above n 16, 8.

³⁵ Giuseppe, Ciavarini Azzi, ‘Better Lawmaking: The Experience and the View of the European Commission’ (1998) 4 Columbia Journal of European Law 617, 620–22Google Scholar; Christian, Timmermans, ‘Subsidiarity and Transparency’ (1999) 22 Fordham International Law Journal S106, S109–S110Google Scholar.

³⁶ Stephen, Weatherill, ‘Competence Creep and Competence Control’ (2004) 23 Yearbook of European Law 1, 9–12Google Scholar.

³⁷ Ibid 12.

³⁸ Compare Cooper, above n 22; Louis, above n 29; Bermann, above n 33.

³⁹ Gareth Davies observed in 2006 that the Commission guidelines for applying subsidiarity leave the substantive consideration of national autonomy and national goals to nothing more than ‘political judgement': see Gareth, Davies, ‘Subsidiarity: The Wrong Idea, in the Wrong Place, and the Wrong Time’ (2006) 43 Common Market Law Review 63, 76–7Google Scholar. Compare the early discussion in Bermann, ‘Taking Subsidiarity Seriously', above n 1, 368–90.

⁴⁰ See Geoff, Anderson, ‘The Council of Australian Governments: A New Institution of Governance for Australia's Conditional Federalism’ (2008) 31 University of New South Wales Law Journal 493Google Scholar.

⁴¹ Paul McClintock, ‘The COAG Reform Council's Role within the New Commonwealth-State Financial Architecture’ (Paper presented at the Committee for Economic Development of Australia, Melbourne, 23 September 2008).

⁴² Anne, Twomey, ‘Commonwealth Coercion and Cooperation’ in John, Stone (ed), Upholding the Australian Constitution, Volume 20: Proceedings of the Twentieth Conference of the Samuel Griffith Society (The Samuel Griffith Society, 2008) 64, 72Google Scholar; Kenneth, Wiltshire, ‘Chariot Wheels Federalism’ in John, Stone (ed), Upholding the Australian Constitution, Volume 20: Proceedings of the Twentieth Conference of the Samuel Griffith Society (The Samuel Griffith Society, 2008) 74, 86Google Scholar. See also Nicholas, Aroney, ‘Reinvigorating Australian Federalism’ [2009] Supreme Court History Program Yearbook 75Google Scholar.

⁴³ See Fenna, above n 12, 188.

⁴⁴ Arthur, Gunlicks, ‘Reforming German Federalism', in Gabrielle, Appleby, Nicholas, Aroney and Thomas, John (eds), The Future of Australian Federalism (Cambridge University Press, forthcoming)Google Scholar.

⁴⁵ UK v Council (C-84/94) [1996] ECR I-5755.

⁴⁶ Ibid I-5808 [46].

⁴⁷ Ibid I-5808 [47].

⁴⁸ Germany v Parliament and Council (C-233/94) [1997] ECR I-2405; Netherlands v Parliament and Council (C-377/98) [2001] ECR I-7079.

⁴⁹ Germany v Parliament and Council (C-233/94) [1997] ECR I-2405, I-2452 [26].

⁵⁰ Ibid I-2453 [27].

⁵¹ Ibid.

⁵² Joseph Weiler aptly characterises the style as ‘cryptic’ ‘Cartesian’ and ‘authoritarian', with a ‘pretence of logical legal reasoning and inevitability of results': J H H, Weiler, ‘Epilogue: The Judicial Après Nice’ in Gráinne, de Búrca and J H H, Weiler (eds), The European Court of Justice (Oxford University Press, 2001) 215, 225Google Scholar.

⁵³ Netherlands v Parliament and Council (C-377/98) [2001] ECR I-7079, I-7159 [30].

⁵⁴ Ibid I-7159 [32].

⁵⁵ Ibid I-7159 [33].

⁵⁶ See also The Queen and Secretary of State for Health, ex parte British American Tobacco (Investments) and Imperial Tobacco (C-491/01) [2002] ECR I-11453, I-11605–6 [177]–[185] (where several Member State governments submitted that the directive complied with subsidiarity); Belgium v Commission (C-110/03) [2005] ECR I-2801, I-2853 [56]–[58]; Van den Bergh Foods v Commission (T-65/98) [2003] ECR II-4653, II-4735–6 [197]–[199]; Ayadi v Council (T-253/02) [2006] ECR II-2139, II-2183–5 [105]–[114]. Notably, the Court has frequently held, often against submissions by the Community institutions, that the Article in question does not confer an exclusive power and therefore the Community measure must comply with the principle of subsidiarity. In the Tobacco Advertising Case, the Court did not have to consider the subsidiarity argument because it found that the directive was not supported by a proper legal basis: Germany v Parliament and Council (C-376/98) [2000] ECR I-8419, I-8506 [9], I-8532 [118].

⁵⁷ Dashwood, above n 18, 368; Weatherill, above n 36, 15–17. See also Bermann, ‘Taking Subsidiarity Seriously', above n 1, 391, who argues that the Court ought to adopt a procedural, rather than a substantive, approach to its subsidiarity determinations.

⁵⁸ Reimer, von Borries and Malte, Hauschild, ‘Implementing the Subsidiarity Principle’ (1999) 5 Columbia Journal of European Law 369, 374Google Scholar ('The passing of a legal act by the Community legislator implies that the majority of the Council agrees that the act conforms to the subsidiarity principle, and the Court will have difficulty in overturning such an assessment’). For a less sanguine view of the Council, see Bermann, ‘Taking Subsidiarity Seriously', above n 1, 395–400, 453–4 ('a democratic deficit necessarily implies a federalism deficit as well’).

⁵⁹ De Búrca, ‘Reappraising Subsidiarity's Significance', above n 16, 24–30.

⁶⁰ Ernest, Young, ‘Protecting Member State Autonomy in the European Union: Some Cautionary Tales from American Federalism’ (2002) 77 New York University Law Review 1612, 1679Google Scholar. See, further, Joseph, Weiler, The Constitution of Europe (Cambridge University Press, 1999)Google Scholar ch 5: ‘The Least Dangerous Branch: A Retrospective and Prospective of the European Court of Justice in the Arena of Political Integration'.

⁶¹ Davies, above n 39, 67–72.

⁶² Cf Bermann, ‘Taking Subsidiarity Seriously', above n 1, 339–444.

⁶³ Nicholas, Emiliou, ‘Subsidiarity: An Effective Barrier Against “The Enterprises of Ambition“?’ (1992) 17 European Law Review 383, 384, 401Google Scholar.

⁶⁴ Davies, above n 39, 75. Davies later concludes, cynically, that subsidiarity ‘serves primarily as a masking principle, presenting a centralizing polity in a decentralizing light': at 77.

⁶⁵ Nicholas, Aroney, ‘Constitutional Choices in the Work Choices Case, or What Exactly is Wrong with the Reserved Powers Doctrine?’ (2008) 32 Melbourne University Law Review 1Google Scholar.

⁶⁶ De Búrca, ‘Reappraising Subsidiarity's Significance', above n 16, 36.

⁶⁷ Protocol on the Application of the Principles of Subsidiarity and Proportionality (1997) art 3.

⁶⁸ Ibid.

⁶⁹ De Búrca, ‘Reappraising Subsidiarity's Significance', above n 16, 37. See Fritz, Scharpf, Governing in Europe: Effective and Democratic? (Oxford University Press, 1999)Google Scholar ch 2 ('Negative and Positive Integration’).

⁷⁰ See especially, the High Court's recent decision in Betfair Pty Limited v Western Australia (2008) 234 CLR 418.

⁷¹ It is difficult to account for this change solely by reference to the fact that the Protocol envisages the subsidiarity-protecting proceedures as applying to legislative measures proposed, inter alia, by the Court: see Protocol on the Application of the Principles of Subsidiarity and Proportionality (2010) arts 3, 4, 6 and 7.

⁷² See de Búrca, ‘Reappraising Subsidiarity's Significance', above n 16, 37–41.

⁷³ Casagrande v Landeshauptstadt München (C-9/74) [1974] ECR 773, 779 [11]–[12] ('Casagrande’).

⁷⁴ Reina v Landeskredit Bank Baden-Württemberg (C-65/81) [1982] ECR 33 ('Reina’).

⁷⁵ Reina (C-65/81) [1982] ECR 33, 44–5 [14]–[15].

⁷⁶ Union Royale Belge des Sociétés de Football Association and others v Bosman (C-415/93) [1995] ECR I-4921, I-5603 [72]–[73].

⁷⁷ De Búrca, ‘Reappraising Subsidiarity's Significance', above n 16, 43. See further, the cases analysed in Gráinne, de Búrca, ‘The Principle of Subsidiarity and the Court of Justice as an Institutional Actor’ (1998) 36 Journal of Common Market Studies 217Google Scholar. For a similarly incisive assessment in relation to Irish abortion policy, see Gabriel, Moens, ‘The Subsidiarity Principle in European Community Law and the Irish Abortion Issue’ (2003) 9 Ius Gentium 35Google Scholar.

⁷⁸ For example, John, Temple Lang, ‘The Development of European Community Constitutional Law’ (1991) 25 International Lawyer 455Google Scholar, 460: ‘There is no residue of powers reserved to Member States’ (emphasis in original).

⁷⁹ Joseph, Weiler, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403Google Scholar, 2434–5. As Weiler explained, the Court's ‘truly radical and “creative” reading’ of the Community's ‘necessary and proper clause’ (then art 235 TEC, now art 352 TFEU) soon meant that it was ‘virtually impossible to find an activity which could not be brought within the “objectives of the Treaty“', so that ‘no core activity’ of the Member States could be regarded as ‘constitutionally immune’ from Community action: at 2445–6.

⁸⁰ Lenaerts, above n 1, 220.

⁸¹ See ibid 221; Moens, above n 77, 53–4.

⁸² Opinion Pursuant to Article 228 of the EC Treaty [1996] ECR I-01759, discussed in de Búrca, ‘The Principle of Subsidiarity', above n 77, 225–6. Finland argued that the principle of subsidiarity restricted the scope of the implied power in art 235 (now art 352 TFEU) to prevent accession by the Community. The Court held that a decision of such constitutional significance as accession to the ECHR must be decided by the Member States by way of formal amendment to the Treaty.

⁸³ Gráinne, de Búrca, ‘The Tobacco Advertising Saga: Political Aspirations and Constitutional Constraints’ in The ECJ's Tobacco Advertising Judgment (Centre for European Legal Studies Occasional Paper No 5, University of Cambridge, 2001) 7–9Google Scholar.

⁸⁴ Lenaerts, above n 1, 221, quoting Commission of the European Communities v Federal Republic of Germany (C-153/78) [1979] ECR 2555, 2564 [5]: the purpose of Article 36 of the Treaty is not to reserve certain matters to the exclusive jurisdiction of the Member States; it merely allows national legislation to derogate from the principle of the free movement of goods to the extent to which this is and remains justified in order to achieve the objectives set out in the article.

⁸⁵ See Weatherill, above n 36, 14.

⁸⁶ Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich (C-112/00) [2003] ECR I–5659 ('Schmidberger’).

⁸⁷ The Court said that the freedoms can be restricted for the kinds of reasons laid down in what was then art 36 TEC (now art 36 TFEU) or for other reasons relating to the ‘public interest': ibid I-5719 [78].

⁸⁸ Ibid I-5717 [71].

⁸⁹ Ibid I-5718 [76]. The Austrian authorities were also given a generous margin of appreciation in deciding at precisely what point to draw the line: at I-5720 [82].

⁹⁰ Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn (C-36/02) [2004] ECR I-9609 ('Omega’).

⁹¹ Ibid I-9652 [33].

⁹² Ibid.

⁹³ Ibid I-9653 [34].

⁹⁴ Ibid I-9654 [37].

⁹⁵ International Transport Workers’ Federation, Finnish Seamen's Union v Viking Line ABP, OÜ Viking Line Eesti (C-438/05) [2007] ECR I-10779; Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet avd 1, Byggettan, Svenska Elektrikerförbundet (C-341/05) [2007] ECR I-11767.

⁹⁶ Lenaerts, above n 1, 220.

⁹⁷ Bermann, ‘Taking Subsidiarity Seriously', above n 1, 454–5.

⁹⁸ Ibid 365–6.

⁹⁹ Dashwood, above n 18, 356.

¹⁰⁰ Recall the prominent place each of these principles is accorded in both versions of art 5 TEU: above nn 7, 9.

¹⁰¹ Eric, Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’ (1981) 75 American Journal of International Law 1Google Scholar; Lenaerts, above n 1; Weiler, above n 79. See also the analysis in Aroney, ‘Federal Constitutionalism/European Constitutionalism', above n 4.

¹⁰² De Witte, above n 19.

¹⁰³ Paul, Kirchhof, ‘The Balance of Powers between National and European Institutions’ (1999) 5 European Law Journal 225, 234Google Scholar.

¹⁰⁴ Maastrict Decision, Bundesverfassungsgericht [German Constitutional Court], 2 BvR 2159/92, 12 October 1993 reported in (1993) 89 BVerfGE 155. See also, more recently, the German Constitutional Court's decision in the Lisbon Treaty Case, 2 BvE 2/08 30 June 2009 reported in (2009) 123 BVerfGE 267, discussed in Cornelia Koch, ‘“Bis hierher sollst du kommen und nicht weiter“: The German Constitutional Court and the Boundaries of the European Integration Process', in Appleby, Aroney and John, above n 44.

¹⁰⁵ Kirchhof, above n 103, 230, citing Bundesverfassungsgericht [German Constitutional Court], 2 BvR 2159/92, 12 October 1993 reported in (1993) 89 BVerfGE 155, 190 (Kirchhof's paraphrase).

¹⁰⁶ See Nicholas, Aroney, ‘Towards Fundamental Change of the Australian Federal System: Popular Ratification of the State Constitutions’ in Paul, Kildea, Andrew, Lynch and George, Williams (eds), Tomorrow's Federation: Reforming Australian Government (Federation Press, forthcoming)Google Scholar.

¹⁰⁷ On Jacques Delors’ support for subsidiarity and his roots in Catholicism, see Michael Burgess, Federalism and European Union: The Building of Europe, 1950–2000 (Routledge, 2000) 230–2. In addition to Christian Democratic interest in subsidiarity as an important element of Catholic social teaching, other forces for subsidiarity included British Conservative politicians concerned about national sovereignty and German regions concerned to protect the competences of the Länder. See Kees, Van Kersbergen and Bertjan, Verbeek, ‘The Politics of Subsidiarity in the European Union’ (1994) 32 Journal of Common Market Studies 215Google Scholar.

¹⁰⁸ See Chantal, Millon-Delsol, L'État Subsidiaire: Ingérence et Non-ingérence de l'État (Presses Universitaires de France, 1992)Google Scholar; Nicholas, Aroney, ‘Subsidiarity, Federalism and the Best Constitution: Thomas Aquinas on City, Province and Empire’ (2007) 26 Law and Philosophy 161Google Scholar.

¹⁰⁹ Pius XI, Quadragesimo Anno: Encyclical Letter on Reconstruction of Social Order (15 May 1931) [79]–[80].

¹¹⁰ Despite the evidence that Catholic social philosophy was one of the prime inspirations of the European doctrine, there is resistance to the invocation of Catholic principles: von Borries and Hauschild, above n 58, 369–70; Davies, above n 39, 78–9.

¹¹¹ For a sympathetic discussion of Catholic ideas in the context of the European principle of subsidiarity, see N W Barber, ‘The Limited Modesty of Subsidiarity’ (2005) 11 European Law Journal 308.

¹¹² Russell, Hittinger, ‘Social Pluralism and Subsidiarity in Catholic Social Doctrine’ (2002) 16 Annales Theologici 385Google Scholar.

¹¹³ For example, Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188, 232 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).

¹¹⁴ Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

¹¹⁵ Australian Constitution ss 106, 107. See, generally, Nicholas, Aroney, ‘The Griffith Doctrine: Reservation and Immunity’ in Michael, White and Aladin, Rahemtula (eds), Queensland Judges on the High Court (Supreme Court of Queensland Library, 2003) 219Google Scholar.

¹¹⁶ Anne, Twomey, ‘Federal Limitations on the Legislative Power of the States and the Commonwealth to Bind One Another’ (2003) 31 Federal Law Review 507Google Scholar.

¹¹⁷ Constitution Act 1867 (Imp), 30 & 31 Vict, c 3, ss 91, 92.

¹¹⁸ See Nicholas, Aroney, ‘Formation, Representation and Amendment in Federal Constitutions’ (2006) 54 American Journal of Comparative Law 277, 291–8Google Scholar.

¹¹⁹ This has been recognised by several commentators. See, eg, Twomey, ‘Reforming Australia's Federal System', above n 12, 59–62.

¹²⁰ I say this conscious of the way in which this phrase has been interpreted in such cases as Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1; Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399; and Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1.

¹²¹ See Aroney, ‘Constitutional Choices in the Work Choices Case', above n 65. I have further argued that this could be made even more likely in Australia if, in addition, steps were taken by the states to have their constitutions popularly approved by their respective peoples, as this would give the state constitutions a normative legitimacy that they have not yet enjoyed, especially in the face of the more popular foundations of the federal Constitution. See Aroney, ‘Reinvigorating Australian Federalism', above n 42; Aroney, ‘Towards Fundamental Change', above n 106.

¹²² Bermann, ‘National Parliaments and Subsidiarity', above n 33, 454.