Outcome 2 Unit 3 Flashcards
Specific powers
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
Exclusive Powers
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
Concurrent powers
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
Residual powers
Areas of law making power that are not listed in the constitution, hence they remain with the state.
E.g. Criminal law, public transport
The constitution
A set of rules or principles according to which state is government. The Constitution divides the lawmaking powers between, parliament and state parliament
Section 109
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
Restrictions on the lawmaking powers of states and commonwealth parliament
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)
Referendum section 128
Section 128 of the Constitution sets out the process of a referendum
Referendum process
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
Successful referendums
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
The division of law making between state and commonwealth
The principle that law making powers should be divided between the federal government and the states are expressed in the Sterling Constitution.
Strengths of referral process
Encourages Commonwealth and state parliaments to work together.
Quick and flexible as opposed to a referendum
Weakness of referral process
Relies on state and commonwealth work together cooperatively. Commonwealth can refuse to accept power referred to it by states.
High court interpretation
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.
R vs. Brisian 1935
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.
Tasmanian dam 1983
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
Separation of powers
The judicial,legislative and executive functions that allow lawmaking powers to be exercised by different bodies, so that no one body has absolute control.
Representative government
Government is elected by the people to represent the views in parliament, and act on their behalf
Responsible government
Acts fairly and responsibly, and is accountable to the people and Parliament for its actions
Express rights
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
Implied rights
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.
High court protection of rights
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
Referral of powers eg
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
Rights of aus protection
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.
Aus v. Canada
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.
Section 52 *
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.
