Constitutional change

Question 1

Referendums

Answer 1

Set out in section 128, change the wording of the Constitution, haven’t caused a wide-ranging change, has little impact on shift of power from States to the Commonwealth

Question 2

Referendum process

Answer 2

Directly involves citizens (direct democracy)

Question 3

Successful referendums (4)

Answer 3

1967- Altered section 51 (xxvi) and removed section 127 allowing for the Commonwealth to make laws concerning Aboriginal and Torres Strait Islander people and allowed them to be counted in the census, 1977- Altered section 15 ensuring that casual senate vacancies were filled by someone of the same party, 1977- Altered section 128 allowing for Territories to be counted in the national vote for referendums, 1977- Altered section 72 enforcing that judges must retire at the age of 70

Question 4

Successful referendum criteria (5)

Answer 4

Minor change, Bipartisan support, Simple question, Benefits the States of the People, Reflects commonly held values

Question 5

Failing referendum criteria and example

Answer 5

Major change, Partisan division, Complex division, Benefits the Commonwealth of government, Controversial in nature, Example- 1999 referendum to make Australia a republic

Question 6

High court decisions

Answer 6

Section 76, Don’t change the words of the constitution, Can alter the balance of power between the States and Commonwealth, Most important method of changing the constitution due to the difficulty of passing a referendum, Have mainly extended the Commonwealths financial powers, Have protected the States and extended other powers such as the external affairs power and the corporations power

Question 7

High Court phases

Answer 7

Intentionalist, legalist (literalist), neutral, activist

Question 8

Phase 1- intentionalist

Answer 8

1903-1920, Narrow view of the constitutions provisions, Judgements restricted the Commonwealths powers rather than enlarging them, Cases- railway servants, Peterwald’s

Question 9

Phase 2- legalist (literalist)

Answer 9

1920-1942, Doctrine of legalism- interpretation referred to the plain meaning of the words without consideration of outside sources and implications, Cases- engineers, Uniform tax

Question 10

Phase 3- neutral

Answer 10

1943-1983, Maintained principle of broad interpretations, No major extensions of federal power where made, Give and take between State and federal power, Cases- Uniform tax (1957), communist party

Question 11

Phase 4- activist

Answer 11

1983-1996, Emphasis of interpretation was placed upon application of the constitution in contemporary society, Significant expansion of Commonwealth powers, Cases- Koowarta, Tasmanian Dams, Mabo

Question 12

Impact of the high court

Answer 12

Most significant agent of informal constitutional change, Altered the federal balance of power in favour of the Commonwealth, Discovery of implied rights, Vertical fiscal imbalance

Question 13

Referral powers

Answer 13

Allows states to transfer matters under their responsibility to the Commonwealth (s51 xxxvii), Both concurrent and residual powers can be referred however reverse transfer is not allowed, Must be voluntary and initiated by States, Not all states have to refer a power (E.g WA hasn’t referred family law, all states referred criminal law after September 11

Question 14

Impact of referral powers

Answer 14

Involve minor matters (little significance), Can only be initiated by the States, States want to preserve coordinate federalism as was the intent of the founding fathers

Question 15

Unchallenged legislation

Answer 15

Commonwealth can pass laws that are outside its constitutional powers (Act ultra vires) however nothing can be done unless it is brought to the High Court by the States, Eg- legislation to create the Commonwealth Scientific and Industrial Research Organisation (CSIRO) in 1941, caused changes by adding another head of power to Commonwealth, however modernises the constitution (CSIRO couldn’t have been envisioned in 1901)

Question 16

Formal constitutional change

Answer 16

Change in the words

Question 17

Informal constitutional change

Answer 17

Change in operation (meaning)

Question 18

Democratic majority

Answer 18

Majority of voters in Australia nationally

Question 19

Federal majority

Answer 19

Majority of voters in a majority of States (4/6)- doesn’t include Territories

Question 20

Successful referendums statistic

Answer 20

8 referendums have succeeded out of 44 proposed questions put to the polls on 19 occasions

Question 21

Double majority

Answer 21

Democratic and federal majority is needed for a referendum to pass which protects the states, Eg 5 times a democratic majority was won but not a federal majority

Question 22

Implied right to freedom of political communication

Answer 22

ACTV (1992)- High court ruled that the right to freedom of political communication was essential for a representative government system and it was protected in the constitution as a representative democracy, parliament is directly elected by the people (s7 and s24), implies that electors should be able to hear the arguments of there would be representative so they can cast an informed vote, Legally enforceable but up to interpretation by the high court (only High Court as still constitutional), Clubb and Preston (2019)- show this right can be restricted through the establishment of ‘safe access zone’

Question 23

Ultra vires

Answer 23

“Beyond power”, when the Commonwealth acts beyond their scope of power

Question 24

Criteria for a law to be lawful

Answer 24

Law should use a head of power in the constitution or must try to avoid being challenged by the High Court

Question 25

Locus standi

Answer 25

Right to bring action or appear in court, having standing. Party must have a connection to the dispute

Question 26

Section 128

Answer 26

A proposed law is passed in both houses (parliament) with an absolute majority, between 2-6 months after passing it must be submitted to vote by each States and Territories electors. If in the majority of the States, and the overall majority of Australia approves (double majority), it goes to the Governor General for royal assent

Question 27

Why have previous referendums succeeded (give an example)

Answer 27

1967 referendum was seen as the ‘right thing to do’, had broad support and didn’t generate a strong no campaign, posed two simple questions and had bipartisan support

Question 28

Why have previous referendums failed (give an example)

Answer 28

1999 referendum for Australia to become a republic, major change, didn’t have bipartisan support (PM didn’t support), complex and controversial question, gave the Commonwealth power

Question 29

Purpose of the Voice to Parliament Referendum

Answer 29

Addition of section 129 that enshrines a First Nations voice in parliament that gives advice to the Parliament and Government. Also gives Parliament the power to legislate regarding its composition, functions, power and procedures

Question 30

Why is the Voice to Parliament Referendum likely to succeed?

Answer 30

Benefits the States of the People, Reflects commonly held values

Question 31

Why is the Voice to Parliament Referendum likely to fail?

Answer 31

Seen as a major change by many Australians, Doesn’t have bipartisan support, Seemingly simple question however little is explained about how the Voice would function, misinformation/uninformed voters

Question 32

Example of a High Court case restricting legislative power

Answer 32

Tasmanian Dams (1983), Built off the establishment of the use of the external affairs power (s51 xxix), Allowed the Commonwealth to prevent construction on the dam using the World Heritage Act which was authorized under external affairs power

Question 33

Example of the High Court impacting financial powers

Answer 33

Uniform Tax case (1942), ruled that the Commonwealth could levy income tax, enhanced VFI

Question 34

Impact of unchallenged legislation

Answer 34

Small as if there was an intrusion on the States residual powers it would be challenged