Chapter 12: Changing and Protecting the Australian Constitution

Question 1

What is the High Court

Answer 1

• federal
• highest court of appeal
• has authority to hear cases arising under the Australian constitution

Question 2

Outline what sections 7 and 24 of the constitution entail

Answer 2

s7 - related to Senate
s24- related to H.O.R

both sections require the Commonwealth Houses to be directly chosen by the people, enshrining the system of ‘representative government’ into the Australian Constitution

Question 3

Define the system of representative government

Answer 3

a government which reflects the views and values of the majority of people who voted for it

Question 4

How was the implied freedom of political communication established?

Answer 4

Act prohibited political advertising.
High Court declared invalid.
Said that the system of representative government was enshrined in the Constitution, and in order to uphold this system, freedom to communicate about political issues was necessary. otherwise, people not informed when voting in election.

Question 5

Identify one case which interpreted sections 7 and 24 of the Australian Constitution

Answer 5

Lang v Australian Broadcasting Corporation (1997)

Question 6

Outline the key facts of the Lang v Australian Broadcasting Corporation (1997) case

Answer 6

NZ P.M. sued ABC news for suggesting that he was corrupt in his dealings as P.M.
High Court found that ABC was exercising FOPC, confirming and extending the freedom that had previously been established by High Court 1992.

Question 7

Explain the significance of the Lange case

Answer 7

• confirmed and extended FOPC
• established that FOPC is not limited to election period, but is an ongoing freedom - limiting it would deprive electors of the greater part of info. needed to make informed choice at election
• recognised that there are limits that parliament can place on FOPC by developing 2-stage test which affirmed the right but found that limitation can occur if law is compatible with principles of representative and responsible government. this test has since been expanded to 3 stages.

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Question 8

What is an example of a referendum where the Australian people protected the Australian Constitution?

Answer 8

The 1999 referendum on the republic (most recent referendum rejected)

Question 9

How did the Commonwealth come about to proposing a republic?

Answer 9

• Early 1990s PM Paul Keating expressed desire for republic in time for 100th Ann. of Fed.
• Coalition parties (John Howard) won 1996 election
• Established Constitutional Convention to debate proposed change
• Majority of attendants agreed on a proposal
• Proposal put to the people on 6 November 1999

Question 10

What was the proposed alteration in the 1999 referendum on the republic?

Answer 10

2 changes:

• Australia to become a republic
• Change preamble to Constitution

Question 11

Name the bills for the proposed change that were passed by Commonwealth in the 1999 referendum on the republic

Answer 11

Constitution Alteration (Establishment of Republic) Bill 1999 (Cth):

• president head of state
• mechanism for selecting president
• powers of president
• terms of office and power for removal of president
• removing monarchial references from constitution

Constitution Alteration (Preamble) Bill 1999 (Cth) 
- inserting new preamble into constitution

Question 12

What were the results of the 1999 referendum on the republic?

Answer 12

First Q (establishment of republic) rejected by 54.87% of voters nationally. Did not receive majority support in any state.

Second Q (insertion of preamble) rejected by 60.66% of voters nationally. Did not receive majority support in any state.

Victoria most willing to support referendum.

Question 13

Why did the referendum fail?

Answer 13

• traditionally cautious of constitutional change
• proposal of president being elected by parliament was unfamiliar/concerning - model seen as undemocratic bcos president not elected by the people
• voters divided on introduction of president; monarchists arguing that constitutional monarchy provides stable government=encouraged those in doubt to maintain status quo
• P.M urged ‘no’ vote to maintain ties to Britain; swayed some voters to vote ‘no’ (process can be confusing and ppl tend to look to political leads for guidance)

Question 14

Analyse how this referendum demonstrates the ability of the Australian people to protect the Constitution

Answer 14

POSITIVE:
- highlights importance of S128 in requiring that people support constitutional change which would have substantially changed how Aus. is governed - parliament alone cannot enact this change
- double majority provision allowed the people to have a final say on constitutional reform = upholding system of democracy
- majority of voters in every state & nationally could vote ‘no’, saying no to change and rejecting the referendum to preserve the Constitution in its existing form
NEGATIVE:
- reluctance towards change, lack of bipartisan support and lack of understanding of proposals, rather than merit of referendum may have prompted majority to reject it = ineffective process as true will of people may have been suppressed by complexity of process

Question 15

Which section of the constitution gives the High Court the Jurisdiction to hear and determine cases?

Answer 15

S75 gives high court jurisdiction to hear and determine cases involving disputes

• where commonwealth or person suing or being sued on behalf of the Cth is a party
• between states, or residents of different states, or between a state and a resident of another state

Question 16

Identify one high court case that had an impact on the division of law-making powers

Answer 16

the brislan case (1935)

Question 17

Outline key facts of the Brislan case

Answer 17

This 1935 case involved Dulcie Brislan who was prosecuted for not holding a license for their wireless set, and challenged the validity of the act (Wireless Telegraphy Act 1905 (Cth)) which required them to do so. Argued that a ‘wireless set’ was not mentioned in the Constitution and did not fit Section 51(v),

High Court held that broadcasting to a wireless set was a form of telephonic service, and fell under the ambit of “other like services” in Section 51(v) of the Constitution which gave the Commonwealth power to legislate on postal, telephonic, telegraphic and other like services.

Hence, the Commonwealth law considered valid and it had the power to impose and collect licence fees.

Question 18

What would have happened if the Wireless Telegraphy Act 1905 (Cth) was found to be invalid?

Answer 18

If law was declared ultra vires, the power to legislate in regards to a wireless set would become a residual area of law. It would then be up to the states to legislate in this area as the Commonwealth would be acting beyond its power.

Question 19

Outline the significance of the Brislan Case

Answer 19

• widened the scope of Section 51 (v)
• shift in division of law-making powers from states to Ch
• if any inconsistency between state & Clth law about broadcasting to wireless sets, Cth law would prevail - to the extent of the inconsistency - under Section 109
• extending fed. parliament’s power to include broadcasting to a wireless set = overall expansion in its power relating to electronic communication

Question 20

What is an international treaty?

Answer 20

A legally binding agreement between countries in which they undertake to follow the obligations set out in the agreement and include them in their local laws aka international convention
e.g. International Covenant on Civil and Political Rights (1980), The World Heritage Convention (1972)

Question 21

What is the external affairs power?

Answer 21

• Section 51 (xxix)
• Gives Commonwealth power to make laws relating to “external affairs”
• In many cases, High Court interpreted this as including the power to legislate to ratify international treaties; thus giving Cth ability to make laws in residual areas if an international treaty is involved; in case of inconsistency, S109 would find that Cth law prevails

Question 22

What kind of power, in terms of the separation of powers, is the exercised when entering into international treaties?
According to which Section of the Constitution?

Answer 22

the power to enter treaties is considered an executive power
S61

Question 23

What is ratification?

Answer 23

When parliament passes laws to adopt the rights/responsibilities set out in the treaty, confirming its approval of the international treaty signed by the government.

Question 24

Does the executive have the right to remove itself from the obligations under a treaty if it considers that the treaty no longer serves Australia’s interests?

Answer 24

Yes

Question 25

True or False

An international treaty is Australian Law

Answer 25

false

can only apply in Australia if the parliament passes a statute that includes the provisions set out in the treaty

Question 26

What is an international declaration?

Answer 26

A non-binding agreement between countries that sets out certain aspirations (hopes) of the parties to the agreement
e.g. Declaration of the Rights of Disabled Persons (1975)

Question 27

Can international declarations ultimately lead to a treaty being made?

Answer 27

Yes

Question 28

Can international declarations

Question 29

Outline the facts of the Tasmanian Dam Case

Answer 29

https://docs.google.com/presentation/d/1beiVq5HMEKg35i4wYP8BYA6GUCrJlI-dKf3TJn6YFoo/edit?usp=sharing

Tasmania sought a High Court declaration the Commonwealth’s World Heritage Properties Conservation Act 1983 (Cth) was invalid, arguing that law-making about environmental protection was outside the Commonwealth’s exclusive and concurrent law-making powers under the Constitution.
The High Court found the Commonwealth law to be valid, deciding the ‘external affairs’ power gives the Commonwealth the ability to enter international treaties and pass laws that give effect to those treaties.

Question 30

Outline the significance of the Tasmanian Dam Case

Answer 30

https://docs.google.com/presentation/d/1beiVq5HMEKg35i4wYP8BYA6GUCrJlI-dKf3TJn6YFoo/edit?usp=sharing

Question 31

Outline some of the limitations placed on the “external affairs” power

Answer 31

• cth cannot expand far beyond what is in the treaty in the process of enacting legislation whicg gives effect to an international obligation. that law must conform to the treaty and carry its provisions into effect.
• Bona fide agreement: treaty must be bona fide (genuine) - difficult to argue that signing of treaty is disingenuous
• cth limited by express rights in constitution. if legislation which ratifies treaty interferes with an express right, it is likely to be invalid

Question 32

Does the “external affairs” power apply to international declarations?

Answer 32

Likely that they do bcos:

• rulings in past cases suggest that international obligations don’t necessarily need to be specified in a treaty
• matters contained in declarations often then become obligations under treaties - so the terms set out in declarations can become part of domestic law which cth has power to pass