Ch. 3 - Sac study

Question 1

What is federation?

Answer 1

a union of sovereign states that gave one power to a central authority to form one nation

Question 2

what are residual powers? plus 2 examples

Answer 2

those law making powers left to the states at the time of federation. They are not set out in the constitution and CP cannot make laws in these areas. eg. education, health

Question 3

what are specific powers? + 2 examples

Answer 3

those law-making powers of the CP specifically set out in the constitution. these specific powers can be exclusive powers or concurrent powers. Set out mainly S51 eg. coining money, marriage

Question 4

What are exclusive powers? plus 2 examples

Answer 4

those powers in the constitution that are exclusive to the CP. The States cannot make laws in these areas. eg. coining money, customs

Question 5

What are concurrent powers? plus 2 examples

Answer 5

those powers in the constitution that are shared by the CP and one or more SP, S09. eg. taxation, marriage

Question 6

What was the impact of S109?

Answer 6

States that if a section of Commonwealth law and state law are in conflict, then the Commonwealth law prevails over the state law, and the inconsistent state law will be declared invalid to the extent of the inconsistency

Question 7

What are 2 restrictions on commonwealth law making powers?

Answer 7

• commonwealth cannot legislate on areas of residual powers. Residual powers were left to the states at the time of federation.
• Commonwealth cannot make laws that infringe entrenched rights. One entrenched right is freedom of religion. This prevents the CW from legislating with respect to religion, thereby guaranteeing freedom of religion

Question 8

what is a referendum?

Answer 8

a vote of the people in which an entire electorate is asked to accept or reject a proposal to change the wording in the constitution

Question 9

what section gives a mechanism for changing the constitution?

Answer 9

S128 sets out the procedure for changing the constitution by a referendum (double majority provision)

Question 10

how many successful referendums have there been?

Answer 10

8 out of 44

Question 11

What are 3 factors affecting the likely success of a referendum?

Answer 11

timing, confusing information, double majority

Question 12

What is timing? (factors affecting success of referendum) 3

Answer 12

• to reduce expenses, often held at same time as gen. election
• voters likely to be more concerned party to vote for, rather than referendum question
• this takes away focus from referendum and voters being conservative tend to vote no

Question 13

What is confusing information? (factors affecting success of referendum) 3

Answer 13

• info sent to all households outlining reasons for proposed change to Con.
• this can lead to info being very confusing
• sometimes voters agree with some parts but not others and have no choice but to vote no

Question 14

What is a Bill of rights?

Answer 14

A document that sets out individual democratic and human rights

Question 15

What is the Constitution?

Answer 15

A set of rules or principles guiding the way the nation is governed.

Question 16

When did the Constitution come into action?

Answer 16

The Commonwealth of Australia Constitution Act 1900 (UK) came into force on jan 1 1901

Question 17

What is double majority provision?

Answer 17

states that a majority of voters in the whole of Aus must vote ‘yes’ (50+1) and the majority of the voters in the majority of the states must vote ‘yes’ (4/6)

Question 18

What is double majority? (factors affecting likely success of referendum) 3

Answer 18

• strict requirement means not easy to amend the C in order to reflect the will of voters
• approval of maj. of states is difficult to satisfy
• 13 out of 44 referendum proposals have received maj. of voters support, but 5 of these did not satisfy maj. of states

Question 19

What’s the role of the HC in interpreting the Constitution?

Answer 19

S76 states that the HC is the only court with the power to interpret the wording in the Constitution. The HC’s role is to act as a guardian of the Constitution, to keep the Constitution up to date, to act as a check and balance and to give meaning to the words

Question 20

what are 3 strengths of the HC interpretations as a means of changing the law-making powers?

Answer 20

a matter can be dealt with when a case is brought before the HC and an injustice can be rectified

HC can keep the C relevant and up to date by interpreting the words

HC can act as a check against any abuse of power by SP and CP

Question 21

what are 3 weaknesses of HC interpretations as a means of changing law making powers?

Answer 21

HC cannot change words in the constitution, only interpret meaning of them

party brining case must have standing

HC must wait for relevant case to be brought before it can interpret words

Question 22

Why may the states refer their residual law making powers to the CP?

Answer 22

usually occurs when the states find there is an area that needs to be uniform across the country, for example anti terrorism laws

Question 23

What is an example of the states referring residual power to the CP? (3)

Answer 23

• power to leg. in relation to custody battles for children within marriage was with commonwealth, ex-nuptial children were not
• some states recognised inconsistency & gave power to resolve custody disputes involving ex-nuptial children to Com
• increased the CP law-making power and decreased states

Question 24

what is the process to refer powers to the Commonwealth? (2)

Answer 24

SP pass an act giving their law making power to the C

C passes an act accepting this power from each state that has referred its power

Question 25

What is an example of the impact of S109? (4)

Answer 25

• Under the Vic law single or les patients could not access IVF
• Under Commonwealth law, it was unlawful to deny IVF services to single or lesbian patients.
• Dr. McBain didn’t know which law to follow, Leesa Meldrum was a person of standing.
• On basis of S109 the Commonwealth provision should prevail, making the Vic law invalid.

Question 26

What are 3 strengths of referring powers as a means of changing law making powers?

Answer 26

• quite easy to achieve as state and cw parliaments only need to pass an act referring power
• allows states to refer powers that are best left to the com., for example terrorism, to ensure a unified approach to an area of law
• States can decide which law making powers are to be referred

Question 27

what are 3 weaknesses of referring powers as a means of changing law making powers?

Answer 27

• states are generally reluctant to hand over power
• not clear if referred powers are exclusive to the Commonwealth, or held concurrently, or whether states can get referred powers back
• states can agree to pass uniform laws without losing their law making powers

Question 28

what is the role of the Constitution?

Answer 28

The constitution sets out the structure and powers of the commonwealth parliament

Question 29

What are 2 successful referendums that changed the division of law making powers from the states to the CW?

Answer 29

• Indigenous people 1967

- Social services 1946

Question 30

what were the two qns put to the people in the 1967 referendum?

Answer 30

• whether indigenous people should be included in the federal census
• whether the federal government should be allowed to make policies in respect to them

Question 31

What are 3 strengths of a referendum as a means of changing law making power? (CPP)

Answer 31

• compulsory vote: values of community as whole are more likely to be represented in a ref. because voting is compulsory
• protection of smaller states: double maj provision protects smaller states from being dominated by larger states because majority ‘yes’ vote is necessary in maj. of states
• protection of constitution: lengthy process of changing C protects C from changes being proposed that have not been thoroughly considered and do not have overwhelming support

Question 32

What are 3 weaknesses of a referendum as a means of changing law making power? (LDC)

Answer 32

• lack of understanding: people may find ref. proposals difficult to understand and therefore vote no

double majority - difficult to achieve. 13 of 44 ref. proposals received support from maj. of voters, 5 of these did not satisfy maj. of voters in maj. of states provision

costly: very costly to put referendum to the people. the cost of the 1999 referendum was over $66 mil dollars

Question 33

What is the first step in a referendum?

Answer 33

bill for an act to amend the constitution is drafted. must pass both houses or one house twice if governor general allows it

Question 34

what is the 2nd step in a referendum?

Answer 34

if the bill is passed, every enrolled person must vote in the referendum (y or n vote)

Question 35

what is the 3rd step in a referendum?

Answer 35

if receives double maj. it’s presented to the governor general for royal assent

Question 36

what happens if the referendum does not receive a double majority?

Answer 36

if majority vote no, the change cannot take place

Question 37

what is the final step in a referendum?

Answer 37

the constitution is amended after receiving royal assent

Question 38

what was the effect of the 1967 referendum?

Answer 38

gave the CP power to legislate for Indigenous people and include them in national censuses. This amendment and altered S51 of the Constitution and it is now a concurrent power

Question 39

What is division of powers?

Answer 39

the way in which powers are divided between the commonwealth and the states

Question 40

What are 2 restrictions on law making powers of the states?

Answer 40

• The states cannot make laws in areas of exclusive powers, eg. coining money
• Restricted by S109 in areas of concurrent powers

Question 41

what is referral of power?

Answer 41

The giving or returning of a law-making power from a state to the Commonwealth Parliament.