Essay 2

Question 1

Define shared sovereignty

Answer 1

-Law making capability shared by states and commonwealth
-Commonwealth of Australia Consititution Act 1900 (UK) recognised States of Australia as a Nation State
-Originally states has significant power however since federation the Cth has gained power over the states according to the consititution
- Cth creates laws regarding the whole nation, e.g. defense, money, immigration and borders etc. Notably federal has more money, more legal power and favoured in vertical fiscal imbalance.
- States create law according to their jurisdiction of smaller issues, e.g. schools, hospitals, public transport

Question 2

Define constitution that divides law making powers

Answer 2

Constitution - the rules (e.g. law making power), structures(e.g. applying sect 109) and principles(e.g. rule of law, human rights) to which a nation is goverened by
Specific power
Exclusive power
Concurrent power
Residual power

Question 3

Specific power

Answer 3

All powers of the Cth parliament listed in section 51+52 of the constitution, mentioning laws are made ‘for the peace, order, and good government of the Commowealth in respect to the categories listed’

Question 4

Exclusive power

Answer 4

Power only given to the Cth parliament in section 51 according to the 39 heads of power and section 52. Powers exclusive as states are prohibited, e.g. section 115 - states cannot coin money therefore is exclusive to the cth

Question 5

Concurrent power

Answer 5

Powers shared with state and federal parliaments in section 51 e.g. health - federal run medicare states run hospitals

Question 6

Residual power

Answer 6

power residing with states after federation, none listed in constitution however section 106 and 107 allow the states to exist and have their own powers

Question 7

What is the role of the high court

Answer 7

-Was created in 1901 under section 71 to be the guardian of the consitution
-Interprets meaning of words in constitution
-Has the power to invalidate laws outside of the constitution, and on those conflicting with the protection of rights
-Original/appelate jurisdiction

Question 8

What is section 109

Answer 8

Provides high court with power to invalidate a state law’s ‘inconsistency’ with the commonwealth law.
-only the inconsistency will be invalid, other parts can stay
-e.g. marriage act 1961 cth and Marriage Equality (Same Sex) Act 2013 (ACT), the marriages under this law were also made invalid

Question 9

Examples of interpretation of the constitution (2)
need more detail on answers!

Answer 9

Koowarta case (1982)
Koowarta blocked from buying large amounts of land as an Aboriginal man by QLD. Argued this was illegal under Racial Discrimination Act 1975 (Cth) which was introduced to ratify the UN international convention on the Eliminating of All Forms of Racial Discrimination (1966) under S51(xxix) external affairs. QLD argued external affars cannot allow Cth to legislate on residual powers, and RD act was invalid under the constitution. High Court ruled in favour of Cth under the external affairs head of power and power shifted to cth on international treaties.

Question 10

What is a referendum

Answer 10

The method the constitution can be changed formally according to section 128 of the constitution needing a double majority by the voting public of the nation (50%+1) and majority of the states voting yes (4/6)
follows bill process until being passed, vote is held between 2 and 6 months of passing. Only 8 of 44 referendums passed

Question 11

Examples of referendums

Answer 11

1967 Referendum
To allow first nations people to be counted in the census, To allow cth to control Aboriginal Affairs (an ex residual power)
90.77% yes 6/6 states
Words in sect 51 xxvi ‘other than the aboriginal race in any state’ deleted
Section 127 deleted ‘Aborigies not to be counted in reckoning population’

1999 referendum for a republic failed 45.13% 0/6 states

Question 12

Strengths/weaknesses of referendums

Answer 12

S= Double majority, bill process
W= Smaller states have more power, can hold majority back, Double majority hard to understand for public (mistrust)

Question 13

What is referral of power

Answer 13

When states give their powers to the cth according to 51 xxxvii empowers the Australian Parliament to legislate on matters referred to it by any state.

Question 14

Examples of referred powers

Answer 14

Internal security after 9/11 and bali bombings, allowed the Criminal Code Amendment (terrorism) Act 2003 (cth) to be passed

Family court gained application to de facto couples as only marriage is outlined in the constitution (s51 xxi and xxii), all states referred this power to cth but WA

Question 15

Strengths/Weaknesses of referral of powers

Answer 15

Stability and consistency of nationwide laws

Unclear if states can reclaim referred powers

Question 16

High court judgements in favour of the Cth

Answer 16

High court decisions that enforce the constitution in favour of cth

Question 17

Examples of High court judgements in favour of the Cth

Answer 17

First Uniform Tax Case 1942 Sa v Cth
Cth wished to raise funds for war effort, believed it could do so under s51 ii
SA argued Cth could not legislate on tax and could not give grants with conditions attached, High court ruled Special Purpose Payments under S96 are valid and s109 ruled that a cth tax power invalidates the state equivalent
Roads Case (1926) Vic v Cth
Vic argued SPP cannot be applied to residual powers of states (roads), High court ruled that the Cth can use SPPs for whatever purpose they see fit, broadening cth financial power over the states

Question 18

Brislan notes (skip, hit perfect)

Answer 18

Brislan 1935 - cth v Brislan
Brislan argued the constitution did not give power to legislate over her wireless radio - Wireless telegraphy act 1905 cth
Cth argued wireless radio was an ‘other like service’ from S51(V) along with postal, telegraphic or telephonic. High court ruled in favour of Cth and legislating on wireless radios became a specific power, due to the interpretation of s51(V) therefore the states lost this residual power. Similar outcome in Jones 1965 but with tv instead of radio.