AOS 2 Detailed Responses Flashcards
Explain residual powers using examples
Residual powers are those powers left with the states at the time of federation and are not listed in the constitution. Areas of residual power include law enforcement, environment, public transport and health.
- S106 - The constitution of each state shall continue.. until altered
- S107 - Every power of the states shall continue unless exclusively given to the commonwealth or withdrawn from the states
Explain the restrictions on law making by state parliaments
The states are restricted from making laws in areas of exclusive power;
- S114 - The states are prohibited from raising a military force
- S115 - The states are prevented from coining money
The power of the states is also restricted by S109 (areas of concurrent powers). Federal legislation prevails over state law in inconsistent cases of law.
Explain specific powers using examples
Specific powers are those powers enumerated in the constitution and are the law making powers given to the commonwealth parliament in the commonwealth constitution. Most of these powers are set under S51 and are referred to as the ‘Heads of Power”.
- Exclusive powers are powers exclusive to the commonwealth, held by only the commonwealth parliament.
- S51(6) - naval and military
- S51(12) - coining money - Concurrent powers are lawmaking powers over which both state and commonwealth parliaments share jurisdiction. Many of the specific powers in S51 are concurrent. Section 109 states that if there’s an inconsistency between the commonwealth and state law making then under section 109, the commonwealth shall prevail and the state law declared invalid to the extent of the inconsistency.
- S51(I) - trade
- S51(2) - taxation
- S51(21) - marriage
Explain the restrictions on law making by commonwealth parliament
The commonwealth parliament is restricted from legislating in:
- S92 and S96 Free trade - the commonwealth cannot restrict free trade between states
- S99 Preference - the commonwealth cannot give preference to one state over another
- S116 Freedom of religion - this prevents the commonwealth parliament from legislating with respect to religion, thereby guaranteeing the freedom of religion
- S117 No discrimination - prevents the commonwealth from discriminating between states or its people
- S106 and S108 - restrict the commonwealth parliament from interfering with the states’ powers and laws
- The principle of separation of power also acts as a restriction on the commonwealth power. Under the separation of powers, the commonwealth parliament cannot exercise judicial power. This applies to state parliaments. Parliaments cannot do the things courts can do.
Explain the process of changing the commonwealth constitution under S128
- The parliament
A proposed change to the constitution must first be passed by commonwealth parliament. A bill is prepared and is written as a constitutional alteration bill and is introduced into parliament. It can be passed by both houses or one house twice. It must be passed by an absolute majority (over 50% of the house). If rejected by the second house twice after a period of three months, the Governor General may submit the proposed change to the people. - The constitution can only be changed after a successful referendum. The referendum has to be put to the people no less than six months after it has been passed by both houses or one house twice. The double majority provision states that a majority of voters in the whole of Australia must vote ‘yes’, AND a majority of voters in the states (4/6+) must vote ‘yes’ to the proposed change. This provision protects the smaller states from being dominated by the larger more populated states.
- The Governor General
If a proposed change receives a ‘yes’ vote from a majority of voters in a majority of states as well as a majority of electors, it is then presented to the Governor General for the Royal assent.
What are the factors affecting the likely success of referendum proposals
Since 1901 there have been 44 proposals for a change in the constitution and only 8 have been accepted.
- Double majority provision/ strict formula for change - the strict requirement means it’s not an easy task to amend the constitution in order to reflect the will of the voters. Majority of states is difficult to satisfy as only 5/44 referendums have received majority of states. Five extra referendums would have been successful if the majority of states requirement was removed
- Lack of bipartisan support - the proposed changes most likely to succeed are this that are supported by both houses and which cover issues the voting public can related to. If the opposition party is against the proposed changes, the information for both parties can be confusing. Both major political parties may be unable to resist temptation of trying to take political advantage in relation to any proposed changes, without proper consideration of the best outcome for advantage in relation to the constitution and the AUS system of government.
- Confusing information/ complexity of proposal - information is sent to all households outlining the reasons for and against the proposed change to the constitution. Members of political parties discuss the reasons for and against in the media. This can lead to information being very confusing. Confusion mean voters will vote against the proposal. Voters agree with some parts of the proposal but not others. In this instance they have no choice but to vote against the proposal.
How has a referendum changed the division of law making powers
There are three ways to change the division of law making between the states and the commonwealth:
1. Referendum
2. High court cases
3. Referral of power
The 1967 was the most successful referendum in AUS history receiving 92% support. The referendum was made up of two parts. Firstly the deletion of S127, the other was the deletion of a phrase from S51(xxvi). The referendum was on aboriginal people which changed the division of law making power through the deletion of the phrase “other than aboriginal’ from S51(xxvi). By deleting this phrase, it means that the commonwealth increases its power and could now make laws for aboriginal people, a power previously rested with the he states.
Explain the role of the high court in interpreting the constitution
The High Court was established under S71 of the Constitution and specified that it consist of a Chief Justice and at least two other judges. There are currently 7. S72 provides for independence of High Court Judges and the condition of their appointment. Also outlines the appellate jurisdiction of the HC. S75 and S76 give the High court original jurisdiction. S76 gives the Commonwealth parliament the power to establish the High court with the jurisdiction to hear disputes arising under the Constitution or involving its interpretation. The HC cannot change the wording of the Constitution but it can change the way in which words in the Constitution are interpreted.
Whenever the HC is called on to interpret any section or word, the interpretation adds meaning to the Constitution and can change the division of Law-Making powers b/w the state and C/W
In effect these provisions give the HC the power to interpret the C/W Constitution when there is doubt over its meaning and to resolve disputes b/w the C/W Govt and State Govt
These disputes generally concern which of the parliaments has the power to make a particular law and it is the task of the HC to rule in favor of either the States of C/W. HC can increase or decrease powers of the C/W and State Parliaments through interpretations of the Constitution
Explain the main roles of the high court in interpreting the constitution
- To act as a guardian of the constitution
- To keep the constitution up to date
- To act as a check and balance on any injustices
- To give meaning to the words of the constitution
Evaluate the strengths and weaknesses of the High Court
Strengths
- A matter can be dealt with when a case is brought before the court and an injustice can be rectified
- The HC justices are experts in constitutional law and are therefore they are suited to dealing with interpretations of the Constitution and disputes with regards to the Constitution. They do this by interpreting the words in the Constitution and applying it to the cases before the court.
- The HC can act as a check against any abuse of power by the States and C/W parliaments. Any legislation that contravenes the constitution can be declared invalid and unconstitutional. This means that injustices can be rectified, thereby acting as a guardian of the Constitution.
- The High Court can keep the Constitution up-to-date by interpreting the words in the Constitution
Weaknesses
- The HC cannot change the words in the Constitution
- The party bringing the case must have standing.
- The HC must wait for a relevant case to be brought before the courts before it can interpret the words in the Constitution. Thus proving to be a weakness as the HC cannot interpret the Constitution at its whim as there are everyday circumstances from which problems arise, however they are unable to be rectified as a case must be brought to the HC.
- It is expensive to take a case to the High Court
- The HC may be conservative in its interpretation of the Constitution and therefore changes in interpretations may not be made
- The decision in a case brought before the court may depend on the justices hearing the case. Some justices are more conservative than others in their decisions
What is the High Court?
The High Court is the federal court of Australia. It consists of six judges and a Chief Justice - judges must retire at the age of 70. Judges are appointed by the Governor General on the advice of the prime minister. The High Court has two major functions: to hear appeals and to interpret the constitution. The High Court cannot change the wording of the constitution, they can simply apply new meaning. The High Court is the only court that can change the meaning of the constitution.
Explain the significance of the Commonwealth of Australia and another V. The State of Tasmania and others in the interpretation of the constitution
In this case the HC was called on to interpret the words ‘external affairs’ in S51 (xx1x) of the Constitution. The C/W parliament passed the World Heritage properties Conservation act 1983 to prevent the excavation and clearing of the Gordon and Franklin rivers as this area was a World Heritage listed site. The State Govt of TAS argued that the Commonwealth Parliament passed law in an area of State responsibility and the laws were unconstitutional. The C/W argued it was under their power due to the ‘external affairs’.
The HC decided that all aspects of AUS relationships with other countries are included under the ‘external affairs power’ in the Constitution and bc the Franklin River area was covered by an international treaty, it came under the term ‘external affairs’.
As a result it was determined that there was an inconsistency b/w the World Heritage Properties Conservation Act 1983 and the Gordon River Hydro electric Power Development act 1982 under S109, the C/W act prevailed and the State act was declared invalid to the extent of the inconsistency.
This meant that the interpretation from the High Court broadened the external affairs area and the power to include law making in areas necessary to uphold obligations under law-making areas necessary to uphold obligations under international treaties. Thus the power was given to the C/W parliament in an area previously held by the States (an area of residual power). Thus the impact was an increase in the C/W parliament’s powers to legislate in area of ‘external affairs’ and a decrease in the States power. Therefore a shift in the DLMP.
