AOS 2- Ch 3 Flashcards
Constitution
A set of rules declaring the nature,munitions and limits of government
What is the role of the constitution?
To determine the powers and duties of the government and to guarantee certain rights to the people in the country.
What are residual powers?
Law-making powers left with the states at the time of federation and not listed in the constitution.
What are some areas of residual power?
~Law enforcement ~Environment ~Public Transport ~Education ~Health
What sections of the Constitution refer to residual powers?
S106 & S107
What are Specific Powers?
Powers set out in the Constitution and given to the Commonwealth Parliament.
What section of the Constitution are most specific powers mentioned?
S51
What are the two types of Specific powers?
Exclusive and Concurrent
What are Exclusive Powers?
Powers that can only be exercised by the Commonwealth Parliament.
What are some areas of Exclusive Powers?
~Customs
~Naval and military forces
~Coining money
~Naturalisation and aliens
What are Concurrent Powers?
Powers which both the commonwealth and state parliaments share jurisdiction.
What are some areas of Concurrent power?
~Trade
~Taxation (Stamp duty, GST)
~Marriage
What is the impact of S109?
~Mechanism to resolve conflict between state and commonwealth laws.
~Commonwealth law prevails.
What are the restrictions on the law-making powers of the state parliaments?
~ Cannot make laws in areas of exclusive power.
~ Power is restricted under S109 if there is a conflict
~Lack of power during a referendum
What are the restrictions on the law-making powers of the Commonwealth Parliament?
~Cannot make laws in areas of residual power.
~Cannot combine all 3 powers (separation of powers)
~Cannot override High Court interpretation of the Constitution.
~Cannot change wording of constitution without referendum under S128.
What is a referendum?
A compulsory vote on a proposed change to the wording of the commonwealth constitution.
What is the process of a referendum?
- Constitutional Alteration Bill is introduced and passed by Commonwealth Parliament.
- A referendum is put to the people 2-6 months after.
- AEC sends information to all households.
- A double majority provision is achieved.
- Governor-general provides Royal Assent.
- Constitution is changed.
What are the factors affecting the likely success of a referendum?
~Timing ~Double majority ~Lack of bipartisan support ~Confusing information ~Voter conservatism ~Opposition in the community ~Erosion of states' rights is present ~High cost
What are the strengths of a referendum?
~Protection of smaller states achieved through double majority provision.
~Lengthy process protects constitution
~Community views represented through compulsory vote
~Achieves a change in the division of law-making
What are the weaknesses of a referendum?
~Double majority is difficult to achieve.
~Voter conservatism can negatively impact changes that have merit.
~Bipartisan support or lack of can influence voters.
~Expensive
~Lack of state power
What was the outcome of the Constitution Alteration (Aboriginals) Bill 1967?
~ ‘other than the aboriginal race in any state’ removed from S51(xxvi)
~S127 repealed
~Area of residual power became a concurrent power
What is the role of the High Court in relation to the Constitution?
- Act as a guardian of the constitution.
- Keeping constitution up to date.
- Act as a check & balance.
- Give meaning to the words and apply it to everyday situations.
What section of the Constitution gives the High Court jurisdiction to interpret the constitution?
S76
What are the strengths of the High Court in interpreting the constitution?
~Injustice can be rectified
~Justices are experts in constitutional law
~Acts as a check against abuse of power
~Keeps the constitution relevant
What are the weaknesses of the High Court interpreting the constitution?
~High Court cannot change the wording.
~Case must be brought to court for constitution to be interpreted.
~Party bringing case must have standing.
~Expensive
~May be conservative and no change may result.
What section of the constitution allows the states to refer their power to the commonwealth?
S51(xxxvii)
What is the process of referring power?
- States agree to hand over powers
- State parliaments pass an act to refer powers
- Commonwealth parliament passes an Act accepting powers from the states.
What are the areas of uncertainty when it comes to referring power?
~Whether a referral can be revoked.
~Is the power made exclusive or concurrent.
What are the strengths of referring powers?
~States can thoroughly discuss the issue before referring the power.
~Laws can be made to benefit the whole country.
~Uniform laws
What are the weaknesses of referring powers?
~Centralises law-making powers and reduces powers of the states.
~Powers may have been better with the states in retrospect.
