Outcome 2 Unit 3

Question 1

Specific powers

Answer 1

Are explicitly stated in the Constitution and outlined in section 51 and 52 of the Constitution. Specific powers can be either exclusive to the Commonwealth or held concurrently with states. S.51 trade, commerce and taxation

Question 2

Exclusive Powers

Answer 2

exercised by the commonwealth. They are exclusive through their nature and through the restrictions placed on the states. All powers in section 52 are exclusive. S.52 coinage and military forces

Question 3

Concurrent powers

Answer 3

Are specific law making powers listed in section 51 of the Constitution that may be exercised by both come up and state parliament.
E.g. Marriage and divorce

Question 4

Residual powers

Answer 4

Areas of law making power that are not listed in the constitution, hence they remain with the state.
E.g. Criminal law, public transport

Question 5

The constitution

Answer 5

A set of rules or principles according to which state is government. The Constitution divides the lawmaking powers between, parliament and state parliament

Question 6

Section 109

Answer 6

Section 109 of the Constitution states that when there is an inconsistency between the state and commonwealth laws, the Commonwealth will prevail and the inconsistent part becomes invalid

Question 7

Restrictions on the lawmaking powers of states and commonwealth parliament

Answer 7

State restrictions: I state shall not raise or maintain any naval or military forces (s.114)
a state shall not coin money [S.115]
Commonwealth restrictions: The Commonwealth shall not give preference to one state over another. (S.99)
The commode cannot restrict free trade between the states (s.92)

Question 8

Referendum section 128

Answer 8

Section 128 of the Constitution sets out the process of a referendum

Question 9

Referendum process

Answer 9

Section 128 of the Constitution outlines the referendum process. This process begins with the constitutional alteration bill. The bill must be pasted through both houses gaining the majority support. The bill is then turned into a question or questions which are put out to the community to vote on. The vote must reflect the double majority provision, that is the proposal must be passed by majority of voters in each state and territory and passed by majority of states four out of six. Once this has been successful, it must be delivered for royal assent and once Royal assent has been granted, change will occur

Question 10

Successful referendums

Answer 10

The 1967 referendum saw her changing the Aus constitution to omit the words from section 51 of the Constitution on making laws on any race other than aboriginal race in any state. The words ‘other than the aboriginal rights in any state’ were deleted, thus changing the aus Constitution giving power to the commonwealth as a specific and concurrent with the state of residual

Question 11

The division of law making between state and commonwealth

Answer 11

The principle that law making powers should be divided between the federal government and the states are expressed in the Sterling Constitution.

Question 12

Strengths of referral process

Answer 12

Encourages Commonwealth and state parliaments to work together.
Quick and flexible as opposed to a referendum

Question 13

Weakness of referral process

Answer 13

Relies on state and commonwealth work together cooperatively. Commonwealth can refuse to accept power referred to it by states.

Question 14

High court interpretation

Answer 14

High court is set up by the Constitution, through the constitution the high court have the power to hear and interpret disputes arising from constitutional matters through section 75 and 76.
High court applies meaning to the text of the Constitution and cannotalso the written words. Decisions cannot be overturned by Parliament.

Question 15

R vs. Brisian 1935

Answer 15

Charged with learning I wireless device without a license. When the Constitution was written on the Commonwealth had pallet to make laws about ‘Postal, telegraphic and other like services’ Brisian decided to challenge the commonwealths ability to charge him.
Result: high court interpreted ‘like services’ to include wireless and the Charges still applied and commonwealth law making power increase.

Question 16

Tasmanian dam 1983

Answer 16

The Tasmanian government planned to build a dam in an area of natural and cultural significance. Protests forced the commonwealth gov to step in and stop the process. Tad gov challenged it and took commonwealth to high court.
Result: the high court found in favour of commonwealth due to the fact that external affairs gave commonwealth power to make law s.75

Question 17

Separation of powers

Answer 17

The judicial,legislative and executive functions that allow lawmaking powers to be exercised by different bodies, so that no one body has absolute control.

Question 18

Representative government

Answer 18

Government is elected by the people to represent the views in parliament, and act on their behalf

Question 19

Responsible government

Answer 19

Acts fairly and responsibly, and is accountable to the people and Parliament for its actions

Question 20

Express rights

Answer 20

Entrenched in the constitution and can only be changed by referendum.
I) the acquisition of property on just terms
II) trial by jury
III) freedom of interstate trade and commerce
IV) freedom of religion
V) freedom of interstate discrimination

Question 21

Implied rights

Answer 21

Not explicitly stated but have been found by the high court to be suggested. E.g. Freedom of political communication- implied rights to freedom of speech and communication on matters concerning politics.

Question 22

High court protection of rights

Answer 22

Roach v. Electoral commissioner 2007
Vicki lee roach, 6 years imprisonment, questioned amendment of the electoral act.
Prohibited all prisoners from voting in federal elections
She said the act limited the operation of responsible and representative.
4:2 majority
Recognized the right to vote is necessary for representative
Roach couldn’t vote cause she comminuted three of fences and served longer than three years
Reflection of structural protection

Question 23

Referral of powers eg

Answer 23

Ex nuptial Children- s.51 gives commonwealth power to make laws in marriage and divorce, but doesn’t apply to defacto. Refered power to family court ex nuptial children are to be seen as married couple children
Defacto relationship property disputes- commonwealth defacto act 2004 extended referred power in relation to defacto including financial matters arising from the breakdown. Commonwealth hasn’t accepted th power in relation to same sex

Question 24

Rights of aus protection

Answer 24

Strength: effective as rights are entrenched and cannot be changed unless by referendum. High court interpretation allows a level of consistency.
Weakness: difficulty of the referendum procedure. High court must wait until a case with relevant issues is brought to them before it can declare invalidity.

Question 25

Aus v. Canada

Answer 25

Similarities- expressed rights are entrenched and can only be changed by referendum. Courts interpret and enforce rights.

Differences- Canadian charter has a far more extensive list of expressed rights. Parliament can override some Canadian rights.

Question 26

Section 52 *

Answer 26

Australian Capital Territory
Matters relating to control of public service
Other matters declared by the constitution to be within the exclusive power of the commonwealth.