Characterisation in Federations: Six Countries Compared by Gregory Taylor

By Gregory Taylor

In this paintings Dr. Taylor surveys the federal international locations of the area and asks how they divide energy one of the constituent devices of the federation. In so doing, he considers not just the formal constitutional textual content, yet, way more importantly, the case legislation that has grown up round it because the Courts advance ways to examining provisions for the distribution of powers. this allows conclusions to be drawn in regards to the effectiveness of varied structural and interpretative methods to the distribution of powers inside of federations.

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21 R V. Crown Zellerbach Canada [1988] 1 SCR 401,432. , Constitutional Law, pp. 17-lOf. c. The residue 39 To this must be added, first, the subject of temperance legislation - a case on this provided the occasion for the enunciation of the test referred to above - although this is now a somewhat antiquated field of law and one with a very chequered history in Canadian constitutional law^^^ which would take too much time to recount here but which results in its being a less than firm basis for the construction of constitutional doctrine.

It is worth interrupting this quotation to make a few points that it throws up. First, as we shall see, the last species of legislative power identified by his Honour is very important in Germany and should be noted in advance of reaching the discussion of that country's doctrine. Secondly, we might also wonder why, if "defence" is a purpose, "taxation", at least, cannot also be - a view which would solve some of the problems just sketched in respect to the taxation power at least. Thirdly, his Honour does not mention powers over persons.

D. Characterisation (in the narrow sense) In the area of characterisation in the narrow sense, the text can explain the differences with Australian doctrine only partially. The first proposition on which Canadian characterisation doctrine rests, and which is connected with the existence of two lists, is that a law's predominant character - its "pith and substance" - is to be the basis of characterising it. This is to some extent a product of the two-list system because, if laws were regularly said to have more than one character as in Australia, there will be cases in which the various characters of a law will fall under both the federal and provincial lists.

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