Evaluation of Australia's Constitutional System

Question 1

How many referendums have there been in Australia?

Answer 1

44

Question 2

What is a unitary system of government?

Answer 2

Where the states would have been abolished and replaced with a single, federal government

Question 3

What are some arguments supporting a federation model?

Answer 3

• Decentralises power
• Both federal and state governments have constitutional power to make laws to address the needs of their regions.
• Federal system is flexible
• Allows for a central defence force
• Allows the nation’s resources to be divided equally amongst all citizens

Question 4

How does a federation model decentralise power?

Answer 4

There are multiple parliaments making laws in their own jurisdictions. State parliaments can decentralise lawmaking power further by delegating to institutions like local government councils

Question 5

How is Australia’s federation model flexible?

Answer 5

Australia’s federal system can be altered via referendum if necessary. States have also shown a willingness to cooperate with the Federal government to help them achieve legislative agenda if they lack power to legislate in a particular area. Example-Cooperative agreements

Question 6

How does Australia’s federation model allow the nation’s resources to be divided equally?

Answer 6

by allowing the federal government to manage social security payments all citizens are eligible for the same payments regardless of where they live.

Question 7

What are some arguments against a federation model?

Answer 7

• Leads to fragmentation of laws
• States autonomy makes it difficult to create uniform laws nation-wide
• Results in disputes between governments which have to be settled by the High Court
• Proportional voting in senate results in higher numbers of independents and minor parties being elected to the chamber

Question 8

Why might Australia’s federation model lead to fragmentation of laws?

Answer 8

Each jurisdiction creates laws for their own needs. I.e. each state makes their own criminal laws (different penalties, creating inconsistencies).

Question 9

Why does Australia’s federation model mean that it is difficult to create uniform laws?

Answer 9

States autonomy makes it difficult to create uniform laws nation-wide. Sometimes the states are willing to work together and with the federal government. This is not always the case. Example- Murray-Darling River.

Question 10

Why are the disputes between governments about power sharing as a result of Australia’s federation model bad?

Answer 10

Disputes between governments concerning power sharing have to be settled by the High Court. These can create political and social instability until the dispute is resolved.

Question 11

Why is the proportional voting in the Senate an argument against Australia’s federation model?

Answer 11

The proportional voting in the Senate results in higher numbers of independents and minor parties being elected to the chamber. Government often has to negotiate and make concessions to pass laws. Whist there are arguments in favour of this, it means laws are significantly impacted by parties representing a minority of Australians.

Question 12

Why did the division of powers begin to change?

Answer 12

Initially the states and federal government operated quite independently of each other.
As the world changed it became necessary for laws to made at a national level- esp. with regards to International concerns, the environment and technology.
However, Commonwealth governments was constrained in achieving what it wanted to under the powers in Section 51 of the Constitution.
Over time the Federal government has made changes to acquire greater lawmaking powers (with and without the agreement of the states).
These changes have transferred additional powers to the states.

Question 13

What are the 3 ways in which the Federal government has made changes to acquire greater lawmaking powers?

Answer 13

• Supported by the states
• Through Federal government initiatives
• High Court Interpretation of the Constitution

Question 14

How do state supported changes to the division of powers occur?

Answer 14

Referral of Power
Section 51 (xxxvii) allows Federal Government to take any power willingly referred by the States.
Any laws made by Commonwealth only apply to the States who transferred this power
States generally are reluctant to hand over power.

Question 15

What are some examples of state supported changes to the transfer of powers?

Answer 15

Example- ex-nuptial children
Example-corporations power (In 2,000 each State referred their ‘Corporations power’ so the Federal government could enact the Corporations Act, to create national uniform legislation concerning the creation and regulation of companies.

Question 16

Why are there often inconsistencies to be decided by the High Court?

Answer 16

Often when there is an inconsistency to be decided by the High Court it is because the Commonwealth uses a power for the 1st time.
Example family law
Prior to federation indiv. States made laws re. marriage and divorce.
These laws remained valid after federation.
In 1959, the Commonwealth passed the Matrimonial Causes Act to create uniform legislation regarding divorce. With this federal law, state laws had to be repealed.

Question 17

What are the 3 alterations that have occurred to the division of powers as a result of referendums?

Answer 17

Section 106 A (in 1926)-National Debt Power
Allows the Commonwealth to control borrowing of public money.
-Section 51 (xxiiiA) (in 1946) –Social Security Power
Gives the Commonwealth increased power to provide Social Security payments
-Section 51 (in 1967) –The Race Power
Allowed Indigenous Affairs to become a specific power of the Commonwealth.
In these cases the States did not object to the transfer of power.

Question 18

What is an example of a bill the Senate has voted for which has removed powers from the states and given them to the Commonwealth?

Answer 18

Example- Uniform Tax Legislation
1942- Federal Parliament passed the Uniform (Income) Tax Agreement Bill- removing the power of the States to collect income tax from their citizens.
Even though it was not in the interests of the states, members of the Senate approved the bill and passed it into law on the advice of their parties, putting party discipline ahead of state interest

Question 19

What section of the constitution outlines the grants power or tied grants?

Answer 19

Section 96- Commonwealth Parliament has the ability to give money to the states under any condition it deems appropriate.

Question 20

How does the Commonwealth use the Grants power or ‘tied grants’?

Answer 20

The Commonwealth uses this power to pressure the states into adopting particular projects, or adopting the Commonwealth agenda.
These are effective as 35-40% of states income comes from the federal government.

Question 21

What is an example of the Commonwealth using the grants power or tied grants?

Answer 21

Example- Education
Education is a state residual power.
The main way the Federal government can exert power over this is through tied grants.
2004-under the Howard government education funding was tied to the following policies:
Compulsory physical exercise sessions in primary schools
All schools had to have a functioning flag pole to display the Australian flag.
Schools who failed to comply risked losing funding.

Question 22

What is an example of federal legislation that has been challenged for being ultra vires?

Answer 22

Examples of legislation that has been challenged
Williams v Commonwealth (1) & (2)
The Federal government made legislation without a valid power. This was successfully challenged by an individual.
The Federal government was funding school chaplains for their National School Chaplaincy Program. They engaged a private organisation to undertake work in QLD. A parent, Mr Williams challenged this arrangement in the High Court.
He argued that this arrangement could not be entered into under Section 61, and was prohibited by Section 116 .
High Court found against the Federal Government, who had to make new arrangements. This lead to Williams v Commonwealth (2) where the High Court against the government second time.

Question 23

What does Section 76 of the Constitution say in regards to the High Court and the Constitution?

Answer 23

High Court is the ‘Guardian of the Constitution’- they interpret the wording of the Constitution.

Question 24

What are the 3 categories that examples where the High Court has awarded more power to the Commonwealth at the expense of the states fall under?

Answer 24

Financial dominance of the Commonwealth
Use of the external affairs power
General Commonwealth powers

Question 25

What is an example of Financial Dominance of the Commonwealth?

Answer 25

1926 Federal Roads Case, the 1942 first uniform tax case and the 1997-Tobacco Excise case

Question 26

What was the 1926 Federal Roads case?

Answer 26

Dispute re section 96- the ‘grants power’
Vic claimed the federal govt did not have authority to allocate grants to states with requirements for spending outside their heads of power.
In this case the federal govt granted Vic funding for roads, but specified how the money was to be spent (they nominated roads to be upgraded).
High Court held that the Federal Roads Act 1926 (Cth) was a valid exercise of power.
Gave the Commonwealth broad powers infringing on residual powers of the states through grants.

Question 27

What was the 1942 first uniform tax case?

Answer 27

Pre WWII both the states and the Commonwealth raised money through taxation.
During WWII the federal govt. passed laws allowing them to collect the majority of taxes across Aust, to fund the war effort.
These laws stated that states would be ineligible for federal funding if they continued to collect their own taxes.
This effectively stopped the states from collecting income taxes.
SA challenged this legislation (South Australia v Commonwealth 1942) arguing the legislation was invalid.
Full Bench of the High Court held this was a valid use of the Commonwealth’s taxation power.
States have never had this power reinstated, and continue to be heavily reliant on GST revenue and ‘pseudo taxes’ i.e. The Emergency Services Levy and Land Tax.

Question 28

What was the 1997 Tobacco Excise case?

Answer 28

Ha v NSW 1997 High Court held that the NSW govt couldn’t put a franchise tax on cigarettes, as this was effectively an income tax, and was an exclusive of the Commonwealth.
This further reduced the types of taxes the states could raise.
A significant portion of current Commonwealth grants to states are linked to specific government programs.

Question 29

What is the external affairs power?

Answer 29

Section 51 (xxix) –Federal govt has power to create legislate regarding ‘external affairs.
On several occasions the High Court has ruled that the federal govt. can create legislation with regards to areas outside their heads of power, if they are in response to an international treaty signed by the Australian govt.
Two cases that we have previously discussed are:
Koowarta v Bjelke-Petersen 1982
Commonwealth v Tasmania 1983 (Tasmanian Dams Case)

Question 30

What are some examples of cases where the High Court has ruled with respect to the external affairs power?

Answer 30

On several occasions the High Court has ruled that the federal govt. can create legislation with regards to areas outside their heads of power, if they are in response to an international treaty signed by the Australian govt.
- Koowarta v Bjelke-Petersen 1982
- Commonwealth v Tasmania 1983 (Tasmanian Dams Case)
- Victoria v the Commonwealth 1996 (Industrial Relations Act)

Question 31

What was the Victoria v the Commonwealth 1996 (Industrial Relations Act)?

Answer 31

Commonwealth parliament created legislation related directly to provisions in the International Covenant on Economic, Social and Cultural Rights, and the ability of workers to protest.
The significance of this case comes from the judgement affirming the decisions of the jurisdiction in Koowarta & Tasmanian Dams case.
The decision affirms that,
“…where… the Executive ratifies a convention which calls for action affecting powers and relationships governed by domestic legal order, legislation is needed to implement the Convention.”

Question 32

What are some arguments for saying that the High Court has too much power?

Answer 32

High Court justices are appointed not elected, are not held democratically accountable.
Parliament alone doesn’t have legal authority to overrule the High Court’s interpretation of the Constitution (High Court has sovereignty in this respect).
Justices of the High Court are not bound by their own precedents- can be unpredictable and result in inconsistencies.
No higher court, decisions can’t be appealed.
Due to judicial independence a judge can only be dismissed for proved misbehaviour or incapacity (not bad decisions).
Referendums insufficient to supervise judicial decisions as the process is slow, expensive and often unsuccessful.

Question 33

What are some arguments for saying that the high court does not have enough power?

Answer 33

Created based on the outline in the Constitution which was democratically approved via referendum in each colony (no changes to High Court’s powers via referendum since then).
If public not happy with a High Court decision can overrule by changing the Constitution via a referendum.
High Court judges are subject to the Rule of Law and same standards of conduct of other judges- preventing an abuse of power.
Government can scrutinise candidates before their appointment.
Parliament can remove justices if proved misbehaviour or incapacity.
High Court judges need to be appointed under protections and principles of judicial independence, to ensure federal govt is held to account.