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Yr 12 Politics and Law > CHAPTER 9 > Flashcards

CHAPTER 9 Flashcards

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1
Q

What does section 52 do?

A
  • Power over the commonwealth public service

- site of commonwealth seat of government (ACT)

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2
Q

What does section 115 do?

A

Prohibits states issuing own currency, coining and printing money

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3
Q

What does section 90 include?

A

Customs and excise taxes

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4
Q

What does section 51 include?

A

-Includes concurrent heads of power
Eg. s51(is) taxation
- includes some powers which are exclusive by nature
Eg. s51(vi): defence

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5
Q

What does s109 do?

A

S109 invalidates states laws that conflict within commonwealth laws, to the extent of inconsistency.

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6
Q

Define concurrent powers?

A

Powers granted by the Constitution to the Commonwealth and State Parliaments. They are shared powers. Predominantly in s52

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7
Q

Define residual powers?

A

All government powers not specified or enumerated in the constitution. They are exercised by the states. (s107)Eg. Transport.
, health

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8
Q

What is s51(ii)

A

Taxation power

  • broad concurrent power
  • states also can raise taxes under this power ( excluding Elise, customs and duties)
  • income tax is controlled by commonwealth
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9
Q

What is s90

A

Customs, duties and excise powers

  • charges on goods crossing a border, or taxes or applied goods
  • exclusive to federal government
  • multiple HC challenges over what taxes can be included Eg. Ha vs Hammond 1997
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10
Q

What is s96?

A

The grants power

  • a mechanism to allow the commonwealth to transfer surplus revenue to the states
  • the commonwealth may pass a law granting the states money
  • untied grants: states can spend however it sees fit ( general purpose payments)
  • tied grants : allow commonwealth attach conditions and dictate how they spend it.( specific purpose payments)
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11
Q

Define specific purpose payments?

A

Monetary grants that are given to States and Territories by the Commonwealth under section 96 which must be used on the terms and conditions laid down by the Commonwealth. Tied grants.

Eg.assets recycling scheme (ended in 2016) cmth encouraged states to sell state owned infrastructure and get money to use in and create new infrastructure.

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12
Q

Define general purpose payments?

A

Grants made from the Commonwealth to the States under s96 of the Constitution. No condition are attached and it is up to the states to sped as they think fit. Eg. GST

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13
Q

What is s87 do?

A
  • ‘ the Braddon blot’
  • another mechanism to transfer monies from commonwealth to states
  • requires commonwealth to pay 75% of surplus from s90 revenue collected (excise)
  • ten year time limit from federalism (is now a SPENT section)
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14
Q

What is s94 do?

A
  • extensive residual powers require the states to be able to fund expensive public services ( roads, prisons, housing, police, transport etc.)
  • s94 requires commonwealth to distribute its surplus revenue to the states in a manner ‘it deemed fair’
  • parliament responded by putting money into trust funds to cover future spending which meant that there was no money left over for the states
  • now a REDUNDANT section
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15
Q

Issue with tied grants?

A
  • impacts state sovereignty

- allows federal government to interfere

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16
Q

What does s92 do?

A
  • trade between states is to be ‘ absolutely free’

- guarantees that no state can make laws which give them a trade advantage or disadvantages trade with another state.

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17
Q

Define vertical fiscal imbalance?

A
  • the imbalance in taxing powers and spending obligations between the two levels of government within a federation.
  • in Australia the commonwealth collects more revenue than it needs and states much less than they need.
  • the VFI forces states to accept grants, often tied grants to meet their spending obligations
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18
Q

What sections preserve state sovereignty?

A
  • s107
  • 108?
  • s106?
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19
Q

Define financial powers?

A

The power to levy taxes and raise and spend money. These include the power to make conditional grants to the States (s96).

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20
Q

Define federalism?

A

Divided sovereignty in which power of the states is divided between one central government and two or more regional governments. Each sovereign within their own territories and over their own people

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21
Q

Define federal balance of power?

A

The balance of legislative and financial powers between the central and regional governments within a federation

22
Q

Define federal continuum?

A

Describes relative power of one level of gov compared to another. Central government can either be dominant, equivalent or weak compared to the regional governments.

23
Q

Define coercive federalism?

A

A federal system in which the central level of government possesses and exercises significantly more power than the regional governments. Australian federalism can be coercive when the Commonwealth uses its legislative and financial powers to direct state policy in areas of residual power.

24
Q

Define cooperative federalism?

A

A federal system in which the two levels of government work together to achieve outcomes. It requires strong institutions of federalism where the two levels come together to cooperate.

25
Q

Define coordinate federalism?

A

A federal system in which the two levels of government work independently within their own spheres of power. It requires only weak institutions of federalism where the two levels come together to coordinate their relatively autonomous operations.

26
Q

How does change in federal BOP occur?

A
  • formally: changing words of constitution
    S128 referendums = formal vote by the ppl of Aus to change the words of the c

-informally: changing the way the constitution works
HC interpretations of the words and sections can change meaning

Cooperation between states and cmth through COAG and unchallenged legislation

Coercion of the states through the cmth financial powers

27
Q

What does chapter 5 of the c do?

A

Chapter 5 of the C preserves the states, state constitutions, and their law making powers .

28
Q

What does s106 do?

A
  • preserves the state constitutions
29
Q

What does s108 do?

A
  • preserves the states laws
30
Q

What sections of the constitution favour the cmth over the states causing VFI?

A

S90, 96, 87

  • constitution design favours cmth
  • sections which were suppose to protect state revenue now redundant or spent (s87,s94)
  • HC has decided constitutional causes (concerning above sections are other sections like s94) in favour of the cmth
  • VFI creates need for transfer of money from the cmth to states
31
Q

What are the institutions of Australian federalism

A

The Constitution, The Commonwealth Grants Commission, COAG and The High Court

32
Q

Cooperative and coordinate federalism rely on the links between…..

A

THE INSTITUTIONS OF AUSTRALIAN FEDERALISM

33
Q

What is changing the federal BOP?

A
  • VFI
  • referral of powers
  • COAG
  • evolving HC interpretations
34
Q

Define exclusive by nature?

A

Concurrent powers which are appropriate only for the Commonwealth to exercise despite the Constitution not making them exclusive. Eg. s52 defence power

35
Q

Define coag?

A

Council of Australian Governments. Includes the PM, State Premiers, Territory Chief Ministers and President of Local Government Administration.

36
Q

Define horizontal fiscal equalisation

A

The requirement that the Commonwealth Parliament use its financial powers to equalise the standard of public service delivery in each State. It requires that some poorer States receive high per capita grants from the Commonwealth than other wealthier States.

37
Q

What is unchallenged legislation?

A

Unconstitutional laws that go unchallenged in the High Court. Until struck down by the High Court they remain active law. Statutes passed by the Commonwealth Parliament can be unconstitutional because the Parliament lacks a head of power within the constitution granting the power to make the law.

38
Q

What is s51 (xxxvii)

A

Referral of powers. Allows individual States to pass residual powers to the Commonwealth.

39
Q

Example of referral of power?

A

In 2003 states referred power to make laws regarding to counter terrorism to the commonwealth parliament

40
Q

Advantages of referring power?

A
  • cmth can legislate on matters more appropriately covered by national law
  • cmth can can act without referendum
  • cmth can pass legislation rather than relying on states to pass uniform legislation which can be delayed or amended due to political particularlies in each state
41
Q

Types of referrals?

A

General-when referred cmth can make any law it deems fit within that area. Unlimited reference

Text based- state writes exact words of an act they wish to have passed once enacted cmth can only alter or amend as set out in the conditions of the referral.

42
Q

How has the HC changed BOP in favour of states?

A

AD HC CASES AND PHASES

43
Q

Why does the cmth have financial dominance?

A
  • weak and limited provisions for state financial independence in constitutions were weak
    Eg. S87, S94, s96 grants power = VFI
  • high court interpretations
    Eg. Uniform tax cases 1942 and 1957
  • COAG
    Eg. Gst distribution being discussed in coag with states like TAS and TAS refusing to a redistribution which prevents other states increasing their states from increasing their share which could decrease their reliance on federal tied grants
44
Q

How is Australia Cooperative?

A
  • coag
    Intergovernmental agreements
    Gun laws
    Discussions they have
  • referral of powers
    Family law
    Counter Terrorism
45
Q

How is Australia coercive?

A

VFI

grants Power - Tied grants (specific purpose payments - NSCP, incentives payments- assets recycling scheme)

46
Q

What can states do to influence the cmth or balance of power?

A
  • referral of power s51 (xxxvii)
  • through coag states can refuse to follow the directions of the PM
  • they can refuse tied grants ( labour gov refused the assets recycling scheme)
  • /
47
Q

Doctrine of reserved powers

A

A doctrine of interpretation during the intentionalist phase of the High Court. It meant that when the High Court interpreted concurrent powers it did so in a narrow sense which preserved the powers of the States. Evident in Perterwald’s Case 1904.

48
Q

Doctrine of implied immunities of state instrumentalities

A

A doctrine of interpretation during the intentionalist phase of the High Court. It meant that, because the constitution was designed to create a federation, then it also implied that states powers should be preserved and therefore immune from Commonwealth interference in State’s residual powers. Evident in Railway Servants Case 1906

49
Q

Define covering the field?

A

The High Court accepted that when legislating under a s51 concurrent ‘head of power’ the Commonwealth could specify within the wording of an Act that its law is ‘intended to be the only law’ in that field. s109 would then deem any State law, under that head of power, invalid. Thus increasing Commonwealth legislative power.

50
Q

Define division of powers?

A

division of powers refers to the separation or allocation of law making powers to Commonwealth and the States. Powers are divided into exclusive, concurrent and residual

Yr 12 Politics and Law (13 decks)

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