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LEGAL STUDIES UNIT 3 > Chapter 3- The Constitution > Flashcards

Chapter 3- The Constitution Flashcards

1
Q

❓❓❓define and give an example of specific powers

A

-powers which were given to the commonwealth parliament st the time of federation
-made up of exclusive and concurrent powers
-aka 39 heads of power
E.g. Taxation, immigration

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2
Q

❓❓❓define and give an example of exclusive powers

A

-powers where only the commonwealth parliament may legislate in
E.g. Defence, immigration

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3
Q

❓❓❓define and give an example of concurrent powers

A

-areas of law in which both the state and the commonwealth parliament may legislate in
E.g. Taxation, marriage

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4
Q

❓❓❓what is the importance of Section 109

A

-with regards to concurrent powers (e.g. Taxation) if a state law conflicts with a commonwealth law in an area of concurrent power, then under Section 109 of the constitution, the commonwealth parliament’s law will prevail and the state law will become invalid to the extent of the consistency

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5
Q

❓❓❓ give two examples of restrictions state parliaments

A
  • raising military forces (s.114): states are prohibited from raising naval and military forces
  • coining money (s.115): states are prevented from coining money
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6
Q

❓❓❓give two examples of restrictions on commonwealth parliament

A
  • rights of residents (s.117): prevents the residents of a state being discriminated against
  • freedom of religion (s.116): prevents commonwealth parliament from legislating in respect to religion, thereby guaranteeing freedom of religion
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7
Q

❓❓❓what is S.51 of the constitution?

A

-lists specific powers or the commonwealth parliament

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8
Q

❓❓❓what is S.128 of the constitution?

A

-sets out the referendum process

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9
Q

❓❓❓what is a referendum?

A

-a compulsory vote on a proposed change to the wording of the commonwealth constitution

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10
Q

❓❓❓name three ways the division of power can be changed

A
  • referendum
  • referral of power
  • high court interpretation
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11
Q

❓❓❓what is the main requirement needed for a referendum to be successful?

A

-a double majority

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12
Q

❓❓❓define ‘double majority’

A

-where a majority of voters in Australia, as well as a majority of voters in a majority of states, must vote ‘yes’ to the proposed change

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13
Q

❓❓❓what is a strength of the double majority requirement?

A

-it protects smaller states from being dominated by larger p, more populated states

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14
Q

❓❓❓what are the three stages of the referendum process?

A
  • the parliament
  • the people
  • the Governor General
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15
Q

❓❓❓describe the parliament stage of the referendum process

A
  • a Constitution Amendment Bill proposing the change is drafted
  • bill must pass through both Houses of Parliament with an absolute majority
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16
Q

❓❓❓describe the people stage of the referendum process

A
  • within 2 to 6 months after the bill is passed by parliament, the Governor General must put the proposed change to the people of the Australian electoral to vote ‘yes’ or ‘no’.
  • must be passed by a double majority (majority of vote in Australia as well as the majority of voters in a majority of states must vote ‘yes’
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17
Q

❓❓❓describe the Governor General stage of the referendum process

A
  • Governor General must grant royal assent

- once Royal assent is granted, the wording of the constitution can be changed

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18
Q

❓❓❓name three factors affecting the likely success of a referendum

A
  • timing and cost
  • voter conservatism
  • lack of bipartisan support
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19
Q

❓❓❓explain timing and cost (factors affecting the likely success of a referendum)

A
  • very expensive
  • when held at the same time as an election it takes focus away from referendum, and generates less interest because people are more interested in election
  • e.g. 1999 republic referendum cost $6million
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20
Q

❓❓❓explain Voter Conservatism (factors affecting the likely success of a referendum)

A
  • voters may prefer constitution as it is
  • proposals of major changes are less likely to be successful (e.g. 1999 republic referendum)
  • proposals which affect a small group in society are more likely to succeed (e.g. Retirement age of judges to change to 70)
  • ‘no’ vote may be cast to maintain the status quo
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21
Q

❓❓❓explain Lack of Bipartisan Support (factors affecting the likely success of a referendum)

A
  • proposed changes are more likely to succeed if they have the support of both major political parties. If the proposal for a change is supported by ONE part, it may gain support of ONLY that party
  • voters generally vote according to their political preferences and the advice of their political party, and may be suspicious of a proposal supported by the opposing party, therefore voting ‘no’
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22
Q

❓❓❓name five strengths of referendums

A
  • the people can have their say
  • protection of smaller states
  • compulsory vote
  • one house can vote for a change twice for a referendum to be put to the people
  • protection of the constitution
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23
Q

❓❓❓explain ‘the people can have their say’ (strengths of referendums)

A

-the constitution can only be changed if a majority of electors in Australia and a majority of electors in a majority of states agree to the change

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24
Q

❓❓❓explain ‘protection of smaller states’ (strengths of referendums)

A

-the double majority protects smaller states from being dominated by larger states because it is necessary to have a majority ‘yes’ vote in a majority of states

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25
Q

❓❓❓explain ‘compulsory vote’ (strengths of referendums)

A

-views of the majority as a whole are more likely to be represented in a referendum because voting is compulsory

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26
Q

❓❓❓explain ‘one house can vote for a change twice for a referendum to be out to the people’ (strengths of referendums)

A

-a change to the constitution can be put to the people even if an opposition-strong senate doesn’t agree to it

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27
Q

❓❓❓explain ‘protection of the constitution’ (strengths of referendums)

A

-the lengthy process protects the constitution from the changes being proposed that have not been thoroughly considered and do not have overwhelming support

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28
Q

❓❓❓name five weaknesses of referendums

A
  • distrust and lack of understanding
  • double majority
  • bipartisan support
  • states have a lack of power
  • costly
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29
Q

❓❓❓explain ‘distrust and a lack of understanding’ (weaknesses of referendums)

A

-people may see referendums as giving politicians more poet and will therefore tend to vote ‘no’

30
Q

❓❓❓explain ‘double majority’ (weaknesses of referendums)

A
  • very difficult to achieve
  • e.g. 13/44 referendum proposals received support of the majorities of Australian voters, but 5 didn’t satisfy the majority of voters in a majority of states provision
31
Q

❓❓❓explain ‘bipartisan support’ (weaknesses of referendums)

A
  • support in only one party

- voters generally vote according to their political preferences and advice of their political party

32
Q

❓❓❓explain ‘states have a lack of power’ (weaknesses of referendums)

A

-the only action the states can take k stop the movement of power as a result of a referendum is to lobby strongly against the referendum and encourage the voters in their state to vote ‘no’

33
Q

❓❓❓explain ‘costly’ (weaknesses of referendums)

A
  • very expensive to put a referendum to the people

- e.g. 1999 republic referendum Cody $66 million

34
Q

❓❓❓what two things did the 1967 referendum propose?

A
  • to include aboriginal people in the census

- to allow the federal government to make laws for aboriginal people

35
Q

❓❓❓1967 referendum:
What percentage of voters voted in favour?
How many states voted ‘yes’?
What was the Victorian ‘yes’ vote?
Who had the largest ‘no’ vote? What percentage?

A
  • 90.8% of voters voted in favour
  • 6/6 states voted in favour
  • Victoria had a 94.68% ‘yes’ vote
  • WA had the largest no vote, with 19.05%
36
Q

❓❓❓how did the 1967 referendum change the division of power?

A
  • commonwealth powers expanded
  • the commonwealth government could now become more involved in dealing with the needs of indigenous people and implement major reforms, as the referendum successfully amended the constitution to allow the commonwealth parliament to legislate in an area that was previously a residual power
37
Q

❓❓❓what two sections of the constitution were affected due to the 1967 referendum?

A
  • S.51 (xxvi)

- S.127

38
Q

❓❓❓how was S.51 (xxvi) of the constitution affected due to the 1967 referendum?

A
  • the words “other than the aboriginal race in any state” were crossed off
  • originally “the people of any race, other than the aboriginal race in any state, for whom it is deemed necessary to make special laws”
39
Q

❓❓❓how was S.127 of the constitution affected as a result of the 1967 referendum?

A

-it was completely crossed off

40
Q

❓❓❓what was the 1967 referendum bill entitled?

A
  • “Constitution Alteration (Aboriginals) Bill 1967”
41
Q

Shy saw

Salt

A

Da

42
Q

❓❓❓what two questions were put to the people in the 1967 referendum?

A
  • whether indigenous people should be included in the federal census
  • whether the federal government should be allowed to make policies in respect to indigenous people
43
Q

❓❓❓what is referral of power?

A

-the voluntary giving of a law-making power from a state to the commonwealth parliament

44
Q

❓❓❓what section of the constitution states that the commonwealth parliament can make laws in an rare a referred to it by the states?

A

-S.51 (xxxvii)

45
Q

❓❓❓when may referral of power occur?

A

-may occur when states find there is an area of law-making that would be better under commonwealth jurisdiction because the law needs to be uniforms across the country

46
Q

❓❓❓how does the division of power change as a result of referral of power?

A

-there is a change between the states and commonwealth, in favour of the commonwealth

47
Q

❓❓❓what is the process of referral of power?

A
  • state agrees to hand over an area of power to commonwealth
  • state passes an act giving law making power to commonwealth
  • commonwealth parliament passes an act accepting power from the state that has referred power
48
Q

❓❓❓what are three strengths of referral of power?

A
  • states are able to discuss the issue thoroughly and decide which law-making powers are to be referred to commonwealth parliament
  • commonwealth is able to make laws for the benefit of the whole country in areas not originally given to the states under commonwealth constitution
  • it makes it easier to pass one law that affects the whole country
49
Q

❓❓❓what are three weaknesses of referral of power?

A
  • states may find that it would have been better for them to keep control of an area of power
  • state can agree to pass uniform laws without losing law-making powers
  • it’s another way of centralising law-making powers to states
50
Q

☀️☀️☀️REFERRAL OF POWER

A
  • quicker than referendum or high court interpretation
  • cheaper than referendum or high court interpretation
  • doesn’t need to be standing because no case is being brought to court
  • not as complicated as referendum
51
Q

❓❓❓explain the facts of Anti-Terrorism Laws

A
  • s.51 (vi) gives commonwealth power to legislate on military matters of national security
  • the power to make laws about internal security (criminal law) is a residual power

-after the 2001 terrorist attacks in America, Australia was concerned about similar attacks, and in 2003 all states referred limited power to the commonwealth to make uniform anti-terrorism laws for the whole country

52
Q

❓❓❓the Victorian Act referring power to commonwealth was entitled…
(Anti-Terrorism Laws)

A
  • “Terrorism (Commonwealth Powers) Act 2003”
53
Q

❓❓❓the commonwealth act implementing this referral of power was entitled…
(Anti-Terrorism Laws)

A
  • “Criminal Code Amendment (Terrorism) Act 2003”
54
Q

❓❓❓why was power referred? (Anti-Terrorism Laws)

A

-power was referred because of a concern about internal security from terrorists and all states wanted uniform laws protecting the whole of Australia

55
Q

❓❓❓what was the impact on the division of powers?

A
  • the constitution didn’t change

- commonwealth powers expanded to allow them to make anti-terrorism laws

56
Q

❓❓❓what does a High Court Interpretation do?

A

-changes the way the words of the constitution are interpreted
(interpretation adds meaning)

57
Q

❓❓❓what are four roles of the High Court?

A
  • to act as guardian of the constitution
  • to keep the constitution up to date
  • to act as a check and balance
  • to give meaning to the constitution and apply it to everyday situations
58
Q

❓❓❓explain ‘act as guardian of constitution’ (roles of high court)

A

-ensures the constitution remains relevant to the Australian people

59
Q

❓❓❓explain ‘keeps constitution up to date’ (roles of high court)

A

-the need for the high court to interpret words within the constitution arises from changes that occur in society p, such as changes in attitude and technology, and changes in community standards

60
Q

❓❓❓explain ‘act as a check and balance’ (roles of high court)

A

-individuals, groups, and state and commonwealth bodies can bring a matter to the high court for a ruling to be made on whether or not a new law is constitutional

61
Q

❓❓❓explain ‘to give meaning to constitution and apply it to everyday situations’ (roles of high court)

A

-high court must listen to the facts of a case and decides if an Act that has been passed is unconstitutional

62
Q

❓❓❓what are the facts of The Tasmanian Dam Case 1983?

A
  • in 1983 the Tasmanian government wanted to build a dam to generate hydro-electricity, but conservationists opposed because it destroys wilderness areas and sites of aboriginal significance
  • the commonwealth parliament passed “The World Heritage Properties Conservation Act (1983) (Cth)” to place area on World Heritage list to protect it
  • Tasmanian government claimed the law was ultra fires
  • commonwealth argued that under ‘external affairs’ powers, it was obliged to pass laws to uphold any treaties Australia was signatory to
  • high court decided in favour of commonwealth and found that Australia has an obligation to uphold UNESCO treaty, protecting areas of cultural and heritage significance
63
Q

❓❓❓what section of the constitution was affected in The Tasmanian Dam Case 1983?

A

-S.51 (xxix) - external affairs

64
Q

❓❓❓what was the outcome of the Tasmanian Dam case 1983?

A
  • the high court decided that S.51 (xxix) ‘external affairs’ power gave commonwealth parliament power to make laws to fulfil Australia’s obligation under international treaties
  • therefore act was valid and the commonwealth was able to stop Tasmania from building the dam
65
Q

❓❓❓how did The Tasmanian Dam Case 1983 change the division of power?

A
  • the broad interpretation of S.51 (xxix) ‘external affairs’ power expanded law-making powers of commonwealth parliament into areas traditionally held to be a residual power of the states
  • therefore loss of power for the states
66
Q

❓❓❓what are the facts of The Brislan Case 1935?

A
  • Mrs. Brislan charged under ‘Wireless Telegraphy Act 1905 (Cth)’ with having wireless without having a licence, as it was required by the Act
  • she claimed the constitution didn’t give parliament power to legislate on wireless as it wasn’t mentioned in the constitution
67
Q

❓❓❓what section of the constitution was affected as a result of The Brislan Case 1935?

A

-S.51 (v) - postal, telegraphic and other like services

68
Q

❓❓❓what was the outcome of The Brislan Case 1935?

A
  • high court found that wireless sets were another communication device under S.51 (v) - ‘postal, telegraphic and other like services’ (wide interpretation)
  • interpretation made legislating for wirelesses a power of federal government
  • therefore act was valid
69
Q

❓❓❓how did The Brislan Case 1935 change the division of power?

A
  • the high courts interpretation of the act expand legislative powers of the commonwealth parliament
  • didn’t shift a power from the states to commonwealth parliament (states didn’t lose a power)
  • brought the section up to date with current needs of Australia
70
Q

❓❓❓what are four strengths of high court interpretation?

A
  • a matter can be dealt with when a case is brought to court, and an injustice can be rectified
  • the high court can act as a check against any abuse of power by the state or commonwealth parliaments
  • the high court can keep the constitution up to date by interpreting the words on the constitution
  • high court justices are experts in constitutional law, and are therefore very suited to interpreting the words in the constitution and applying the constitution to the court case
71
Q

❓❓❓what are four weaknesses of high court interpretation?

A
  • the high court cannot change the words in the constitution
  • the high court must wait for a relevant case to be brought in the courts before it can interpret the words in the constitution
  • the party bringing the case to court must have standing
  • it is expensive to bring a Case to the high court
72
Q

❓❓❓define and give an example of residual powers

A

-powers that are left with the states at the time of federation
-only exercised by state parliament
E.g. Public transport, education

LEGAL STUDIES UNIT 3 (4 decks)

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