Making Sense of S 96 : Tied Grants, Contextualism and the Limits of Federal Fiscal Power

This paper continues a wider debate about the interpretation and operationalisation of s 96 of the Australian Constitution. That debate began in this journal over 30 years ago with the critical analysis of the orthodox interpretation of the section by Cheryl Saunders. Despite this, and recent political controversies about the use of s 96 by the Commonwealth, there is yet to be a direct constitutional assault on the orthodox interpretation of the provision. However, there has been increasing incidental consideration of the section as a result of greater scrutiny on the financial provisions of ch IV of the Australian Constitution. This jurisprudence significantly advances our understanding of the role and function of s 96 and assists us to resolve many of the outstanding questions first raised here. This paper will explore that jurisprudence and suggest an approach to the section that ensures it can operate within the constitutional system of federal fiscalism, rather than outside of it