Practice Exam Questions AOS 2 Flashcards
Explain the difference between residual powers and exclusive powers using examples
Exclusive powers are law making powers that can only be exercised by the Commonwealth parliament and no other body. These are specific powers, listed in the Constitution, that are made exclusive to the Commonwealth. For example, the power to coin money is listed in s51(xii) and made exclusive by s115. Residual powers are those not mentioned in the Constitution at all. The Commonwealth has no power in these areas, thus they belong solely to the states. Criminal law and education are examples of residual powers. Which parliament legislates in the area is the main difference between these powers. A second difference is that exclusive powers are stated in the Constitution and residual powers are not.
‘It is very difficult to change the way law-making powers are divided between the State and Commonwealth Parliaments.’
Discuss the above statement and indicate the extent to which you agree with it, giving reasons for your answer. Include in your answer an explanation of how law-making powers are divided between State and Commonwealth Parliaments by the Commonwealth Constitution.
Explain the division of powers
Explain the three ways in which this can change
Explain impact of the three ways
Explain strengths and weaknesses of the three ways
Distinguish between exclusive and residual powers
Exclusive powers are a subset of specific powers and are established under sections 51 and 52 of the Constitution. These powers are only exercisable by the Commonwealth Parliament; no other parliament has power in these areas. Residual powers, on the other hand, are not stated in the Constitution and unlike exclusive powers rest solely with the states.
‘Section 109 of the Commonwealth Constitution acts as a restriction on the state parliaments.’ To what extent do you agree with this statement? Discuss.
I agree to some extent that section 109 acts a restriction on the state parliaments. Section 109 states that where a state law is inconsistent with a Commonwealth law, the Commonwealth law shall prevail and those parts of the state law which are deemed inconsistent will be considered invalid. OPINION AND EXPLANATION OF S109
Section 109 acts as a restriction because, should the state make a law that is inconsistent, and the Commonwealth challenges that law, then parts of the law may be deemed invalid. The state will therefore not be able to make laws in that particular area and thus section 109 restricts its law-making powers. It may also act as a restriction as the state may be reluctant to make laws in areas already governed by Commonwealth laws, with the risk that parts of its own laws will be declared invalid. EXPLAIN RESTRICTION
However, to some extent section 109 doesn’t act as a restriction on the states. The states are still free to make laws in areas of concurrent powers, as section 109 doesn’t act as a ‘bar’ to the state making laws. Also, the states are still free to make any laws they wish in relation to residual powers, as the Commonwealth has no law-making powers in residual areas. HOW IT ISNT A RESTRICTION
Describe one restriction that is imposed by the commonwealth constitution on the law making powers of the state parliaments.
One of the restrictions imposed by the states is that they are not allowed to raise or maintain any naval or military force. This is a restriction imposed by section 114 of the Constitution and is a power that remains exclusively with the Commonwealth.
Discuss the significance of two High Court cases that have interpreted the Commonwealth Constitution. In your answer, indicate the impact these cases have had on the law-making powers of the State and Commonwealth Parliaments. 4 marks
As this is only 2 marks per case, don’t bother explains the facts, just state case and explain impact
‘It is very difficult to change the way law-making powers are divided between the State and Commonwealth Parliaments.’
Discuss the above statement and indicate the extent to which you agree with it, giving reasons for your answer. Include in your answer an explanation of how law-making powers are divided between State and Commonwealth Parliaments by the Commonwealth Constitution.
Explain powers Explain opinion Explain 3 methods of changing the division of law making powers Explain effectiveness of each method Conclusion
Evaluate the process of changing the Constitution as outlined in Section 128.
Explain referendums
Two pros and two cons
Evaluate: Overall the process has some weaknesses but its strengths ensure that only the most important changes to the constitution are made.
Explain one way in which the commonwealth constitution restricts the commonwealths law making powers.
The Commonwealth Constitution restricts the Commonwealth Parliament from legislating in areas of residual power. Residual powers are those powers left with the states at the time of federation. The Constitution ensures that the States’ law-making powers are protected, and restricts the Commonwealth from acting in areas of State power.
Identify one method of changing the constitution and analyse its impact on the division of law making powers.
One method of changing constitutional power is through High Court interpretation.
The High Court can interpret the Constitution, but cannot change its actual words; therefore whilst it can change the balance of powers, it is limited to interpretation only (which can therefore be changed by way of a later High Court interpretation in a different case). EXPLAIN IMPACT
This method has been an effective means of changing the balance of lawmaking powers, however, it normally changes it in favour of the Commonwealth Parliament, therefore reducing state powers. Examples of this include the Brislan case in 1935 where s51(v) of the Constitution was interpreted increasing the legislative power of the Commonwealth Parliament, and the Hammond case, where again the powers of the Commonwealth increased in relation to customs, excise and bounties. EXPLAIN COMMONWEALTH EFFECTIVENESS EXAMPLES
However, whilst the High Court can and has changed the balance of powers, it is costly and time consuming to take a case to court, therefore it does not often happen. It also requires a case where there is a constitutional issue, and where a party has standing, that is, has the right to take the case to the High Court. That means that the High Court cannot just simply change the Constitution whenever it wants to; it has to wait for a case to come before them. As stated, this is often rare. EXPLAIN CONS
Provide one reasons why a state may refer its Law Making powers to the commonwealth
One reason why a state parliament may decide to refer its powers to the Commonwealth parliament is because it believes it is in the greater interests of Australia as a whole to have the same laws applied consistently across the country. For example, in 2003 the states referred powers to the Commonwealth Parliament to enable it to make laws regarding terrorist acts.
Using one successful referendum and one High Court case, analyse the impact of referendums and the High Court’s interpretation of the Commonwealth Constitution on the division of law-making powers.
INTRO High Court interpretation and referendums are two ways that the division of law-making powers can be shifted. Generally, referendums have had little impact on law-making powers, with only four referendums changing those powers. High Court interpretation is more frequent and has had a greater impact than referendums on the law-making powers.
EXPLAIN EFFECTIVENESS AND INTRODUCE EXAMPLE Section 128 of the Constitution sets out the referendum process, whereby the parliament and then the people vote on whether the wording of the Constitution will change. Once the people vote (which involves a vote by double majority), the referendum will go to the Governor-General for royal assent. Traditionally, referendums are very difficult to get through the public. The double majority requirements are difficult to achieve, and it is often seen that people are reluctant for change. Therefore, very few referendums have been successful and the process has therefore had very little impact on the division of law-making powers. Therefore, largely the Commonwealth and state powers have remained unimpeached by referendums, but for two relating to state debts, one relating to social services and one relating to Aboriginal Australians.
EXPLAIN EXAMPLE
REPEAT FOR HIGH COURT
Explain how referral of powers can have an impact on the division of law making powers
If the states refer or give their residual powers to the Commonwealth Parliament, it will mean that the states no longer have that power and the Commonwealth will be able to legislate in that area. This means that there will be a shift in the balance of power, and the Commonwealth will have more power and the state will have less.
Explain if a majority of voters in 3 states voted on passing a proposed law, would it be passed, 56% of all voters agreed to pass the law
A proposed law to alter the Commonwealth Constitution needs to satisfy the requirements set out in section 128 of the Constitution. Section 128 requires a proposed law, known as a referendum, to pass the double majority provision. No this referendum was not passed. The referendum process outlined in s128 of the Constitution stipulates that a referendum proposal must achieve the double majority provision. That is, a majority of all voters in Australia and a majority of voters in a majority of states (4 out of 6 states). In this referendum, the majority of Australian voters was achieved (56%) but it did not satisfy the majority of voters in a majority of states as 3 states voted against it. Thus, it was not passed as it did not satisfy the double majority provision.
Discuss the extent to which the High Court can change the Commonwealth Constitution.
To some extent, the High Court is able to change the Commonwealth Constitution.
The original jurisdiction of the High Court, as enshrined in the Constitution, is to deal with all matters arising under the Constitution or involving its interpretation. That means that matters which require an interpretation of the Constitution will be heard by the High Court.
There have been many examples where the High Court has in its exercise of its jurisdiction interpreted the Constitution, and because of that, changed its meaning. Examples include cases relating to the division of powers, such as the Brislan case, where the High Court expanded the meaning of s.51(v) giving more legislative power to the commonwealth. EXPLAIN INTERPRETATION AND EXAMPLE
However, the High Court can only ever interpret the Constitution and give it meaning, but cannot change its words. The only way the words of the Constitution can be changed is through the referendum process, which is provided for by section 128 of the Constitution.
CONS
Further, for the High Court to be able to add meaning to the Constitution, it must wait for a case to come before it. That is, the High Court cannot ‘react to’ a need for a constitutional issue to be clarified. A person must have standing to bring the case to the Court, and the Court can then deal with it.
Therefore, to some extent the High Court can change the Commonwealth Constitution through its interpretation, but its ability to do so is limited.
