Chapter 10 - Changing the Constitution Flashcards
Difference between formal and informal change?
Formal change is any change to the words of the Constitution, the only way of doing this is through a referendum.
Informal change is any change to the way the constitution operates.
What is involved in a referendum being passed?
The bill for the referendum must pass through both Houses or one House twice.
Bill is then put to the people as a yes/no question
Referendum must achieve double majority to succeed (majority of voters in majority of states and majority of voters nationally)
What are some of the factors behind a successful referendum?
Proposes minor changes - e.g. Retirement of Judges 1977
Doesn’t appear to be a Commonwealth power grab
Morally compelling - e.g. Aboriginals 1967
Broad political support
Lack of a ‘No’ Campaign - no party opposes the bill means no funds are raised for a campaign
What are some of the factors behind an unsuccessful referendum?
Apathy - People who don’t care about the result are more likely to vote no
Conservatism - No vote is a safe vote e.g. 1999 Republic vote
Distrust - If people distrust politicians intentions with the bill
What is an example of a successful referendum?
Aboriginals 1967. One of 8/44 referendums that have been passed.
Altered S51(xxvi) to allow Commonwealth to make laws for Aboriginal people, repealed S127, allowing them to count as the population
Bill had broad political support and 90% voter support - most ever
What are the methods of informal constitutional change?
High court interpretation, discovering an implied right, referral of powers, unchallenged legislation
What are two areas impacted by high court interpetation?
Balance of power: has expanded commonwealth financial and legislative power at the loss of the states
Rights: Prevented government from intruding on people’s rights and making them provide entitlements to people
What is an example of high court interpretation informally changing the Constitution?
Scientology Case 1983.
High Court gave a broader interpretation to religion as it didn’t have to be an established faith
What are examples of specified/explicit constitutional rights?
Section 116: prevents parliament from establishing an official religion
Section 117: prevents discrimination against a citizen based off their state of residence
Section 80: protects right to trial by jury in federal indictable cases
What is an example of the High Court discovering an implied right?
Australian Capital Television v Commonwealth
- High Court discovered the implied right to freedom of political communication through S7 and S24
- Used it to decide outcome of the case without changing the words of the constitution
What is an example of referral of powers informally changing the constitution?
State family law powers 1980s
- All states except WA referred family law powers so the Commonwealth could create the Family Court with S71
- Removed state barriers and kept the constitution relevant
What is unchallenged legislation?
Any law made by parliament that hasn’t been examined by the High Court.
A legal party must have standing to challenge a law, meaning it must have directly affected them
What is an example of unchallenged legislation?
CSIRO and the Science and Industry Research Act 1949
- Since it has had positive impacts on society and technology, no one has had the standing or reason to challenge it.
