U4 AOS1 - THE PEOPLE AND THE AUSTRALIAN CONSTITUTION

Question 1

what is the house of reps (Cth)?

Answer 1

This is the lower house in the c’wealth parliament. 151 members with 3 year terms represent 151 electoral divisions. Political party/coalition that achieves the majority of elected members becomes the government, and the leader of the party becomes Prime Minister. The PM then appoints government ministers to look after certain areas eg. defence, education etc.

Question 2

what are three roles of the HoR (cth) in law making?

Answer 2

1. Initiate, debate, and vote upon proposed laws: The House of Reps main function is to introduce new laws (bills) (these are actually introduced by the gov, although any member may introduce a proposed law), debate upon them and ultimately vote upon them (decide if they should proceed to the upper house and potentially become law).
2. Represent the people: as members of the house of reps are democratically elected to represent the people of their electorates, the laws introduced and passed should uphold the interests, views, and values of the people.
3. control gov expenditure: all legislation that raises government revenue through taxation and spends government money through budget must be introduced in the lower house and can only be amended in the lower house, so the HoR is in charge of government expenditure. The Senate can’t initiate or amend, only reject.

Question 3

what is the senate (cth)?

Answer 3

The upper house. Consists of 76 elected members with 6 year terms and each state elects 12 representatives, 2 from each mainland territory. The Senate is elected by proportional representation where candidates are elected by obtaining a predetermined quota of the total votes.

Question 4

what are three roles of the senate in law making?

Answer 4

1. Act as a house of review: senate reviews the bills that have been passed in the HoR and can therefore preclude bills that are too radical or inappropriate from being passed.
2. Represent the states: Section 7 of the constitution provides that the Senate has equal representation of each state, irrespective of size, and therefore ensures that the interests of the states are represented and protected.
3. Initiate and pass bills: can introduce new bills or pass bills that have been passed in the lower house. May either pass a bill with or without amendments or reject it. However most bills are initiated in the HoR and the senate cannot initiate and amend money bills, including the budget.

Question 5

what is the legislative assembly (vic parliament)?

Answer 5

lower house. 88 members and Victoria divided into 88 districts with 4 year terms. Party that wins the majority of seats forms a state government with the leader of the government known as Premier. Party with next highest number of elected members becomes the opposition with shadow ministers responsible for keeping a check on the activities and responsibilities of corresponding minister

Question 6

what are three roles of the legislative assembly (vic)?

Answer 6

Initiate and pass bills: LA can introduce proposed bills, debate over these and ultimately vote upon whether or not they will proceed to the upper house and potentially become law. Usually introduced by the government and reflective of party agenda.
Determine the government: political party or coalition which holds the majority of seats in the LA will form the government. Thus, the gov will have a fair influence in law making and be able to defeat opposition bills rather easily.
Represent the people: members of the LA are elected to represent the interests of the people. Their actions in law making should reflect the views and values of the people.

Question 7

what is the legislative council (vic)?

Answer 7

upper house. Comprised of 40 members. Victoria is divided into 8 regions and 5 members elected for each region. Fixed 4 year term.

Question 8

what are three roles of the legislative council?

Answer 8

1. Act as a house of review: reviews legislation that has been passed in the LA by scrutinising, debating, or, on occasion, amending or rejecting legislation. Thus, it acts as an important check to ensure the parliament represents the people.
2. Examine bills through its committees: the LC has a number of committees that debate the proposed laws at length and recommend to the house whether bills should be supported as part of the legislative process.
3. Initiate and pass bills: can introduce Bills and debate and vote upon them. Cannot initiate or amend money bills.

Question 9

what is the crown?

Answer 9

The crown is represented in AUstralia by the governor general, and in the 6 states by governors. Governor general is appointed by the queen on the advice of the PM and the governors of each state are appointed by the Queen on premiers advice.

Question 10

what are three roles of the crown in law making?

Answer 10

1. Granting royal assent: Responsible for approving bills before they become law (royal assent). The governor general has the power to withhold royal assent in some circumstances, however this rarely occurs.
2. Appointing the executive council: Governors and the governor general are responsible for appointing the EXecutive council which comprises the leader of the government (PM at federal level, Premier at state level) as well as senior ministers. The role of the executive council is to give advice on gov matters as well as approve secondary legislation (rules made by secondary authorities like councils and gov departments).
3. Issuing royal commissions of inquiry: through the functions of the commonwealth and vic executive councils, the crown initiates royal commissions of inquiry which can have a substantial impact on law making. Royal commissions are comprehensive investigations into matters of public importance eg. the royal commissions intoo institutional responses to child sexual abuse.

Question 11

what are exclusive powers?

Answer 11

Are those law making powers outlined in the constitution and given to the commonwealth parliament, which can only be exercised by the commonwealth parliament. There are three ways a power can become exclusive.

Question 12

what are thre three ways that a power is exclusive?

Answer 12

1. First is if it’s stated in section 52 of the constitution - in this section all powers are exclusive. For example, making laws on matters related to any department of the public service that is under the control of the Executive Government of the commonwealth.
2. Secondly, if the constitution prohibits states from using the power. For example, section 51 gives the commonwealth power to make laws relating to naval and military forces, and section 114 withdraws it from the states.
3. Finally, powers can be exclusive by nature ie. areas of law making that directly impact the whole of australia so it makes sense for them to be exclusive to the commonwealth due to their nature. For example, section 51, the power to make laws regarding naturalisation (becoming an australian citizen).

Question 13

what are concurrent powers?

Answer 13

Law making powers that both the commonwealth and state parliaments share. This means that both commonwealth and state parliaments can make laws in these areas.

Question 14

example of a concurrent power?

Answer 14

Most law making powers are concurrent in nature.
Protected in section 51. For example, the power to make laws about taxation is given to the commonwealth parliament, but states can also make laws about taxes.

Question 15

what is a residual power?

Answer 15

Residual powers are law making powers left with the states at the time of federation and are not listed in the constitution.

Generally, an area of law making power is automatically residual (ie. held by the state) unless it is explicitly outlined in the constitution as a power of the commonwealth.

Specific sections of the constitution protect the continuing power of the states to create law in areas that were not given to the commonwealth. Eg. section 106, 107, and 108.

Question 16

what are examples of residual powers?

Answer 16

Examples of residual powers are areas of law making such as criminal law, road laws, education, and public transport.

Question 17

what does section 109 say?

Answer 17

‘When a law of the State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall to the extent of the inconsistency, be invalid’.

Question 18

what is the purpose of section 109?

Answer 18

designed to help resolve conflicts and inconsistencies between state and Commonwealth laws. State law provisions that are inconsistent with the Commonwealth law will be invalid and unenforceable as the Commonwealth law will prevail to the extent of the inconsistency between the two pieces of legislation.

Question 19

what are four ways in which section 109 is significant?

Answer 19

1. Provides a means of resolving inconsistencies between state and commonwealth laws, which can arise in areas of law-making that are concurrent. Means that the state parliament, in passing laws in areas of concurrent powers, must recognise that its powers are constrained where a commonwealth law already exists.
2. Imposes a consistent approach to the way that conflict between state and Commonwealth laws will be dealt with. No doubt that Commonwealth law will prevail as courts are bound by operation of section 109.
3. If at some time in the future the Commonwealth law is abrogated or changed, and the state law continues to be in existence, then the state law will be in force and have effect.
4. Cannot be used to invalidate a state law made in the area of residual powers.

Question 20

what are four limitations of section 109?

Answer 20

1. Does not automatically operate so states are denied the power to pass an inconsistent law, as the law must be challenged in order to be declared invalid which means the court must determine whether the two laws are inconsistent, which involves the costs, time, and inconvenience of going to court.
2. Doesn’t invalidate entire state legislation, only those parts of the legislation that are inconsistent with the Commonwealth law
3. Invalidity isn’t based on which law is better or more morally correct, but rather which ever belongs to the commonwealth, which may cause problems.
4. Means that the idea of concurrent powers is somewhat artificial, as state and commonwealth don’t really share the power to make laws if the commonwealth laws will always prevail.

Question 21

what four sections of the constitution establish the bicameral parliament structure?

Answer 21

Section 1 of the constitution requires that legislative power of the commonwealth shall consist of the Queen, the Senate, and a House of Representatives.

Section 7 requires the senate to be composed of an equal number of elected members from each state, which are to be chosen by the people for a term of six years.

Section 24 requires the HoR to be composed of members chosen by the people

Section 8 says HoR lasts 3 years.

Question 22

what are four strengths of the bicameral structure?

Answer 22

1. The bicameral structure means that laws are thoroughly scrutinised as they must be passed by two houses rather than just one. In turn, this means that laws have been heavily debated and discussed before being passed and the review process also identifies errors and omissions in bills.
2. If there is a significant number of minor parties and independents in the Senate, the upper house is likely to review bills passed through the lower house with more care so there is immense discussion and amendments to bills to satisfy those parties/independents, thus increasing checks on parliament.
3. If the government of the day holds a slim majority or there is a hung parliament, there is likely to be considerable debate in the lower house as members in the lower house must work together to develop legislation that takes into account a broad number of views, so laws are more likely to satisfy more people.
4. Requirement for a bicameral parliament is specifically stated in the Constitution. As such, the only way the structure could be changed is through a referendum process, which acts as a check on parliament as it cannot pass legislation to alter the structure of parliament itself.

Question 23

what are five limitations of the bicameral structure?

Answer 23

1. However, when the government has a clear majority in both the upper and lower house, it is possible that the senate merely becomes a ‘rubber stamp’ and approves bills without much scrutiny and debate as the senators are simply voting in accordance with their parties wishes.
2. However, the recent increase in the number of minor parties and independents in the Senate may mean law-making is stalled or ineffective. This may happen if several amendments need to be made and laws need to be ‘watered down’ to satisfy the minors/independents and secure their approval, thereby making laws less effective.
3. However, if the government does hold a clear majority in the lower house, then negotiations and discussions are unlikely to occur, meaning there is minimal check on the government in the lower house as the members will likely vote in accordance to the wishes of their party rather than scrutinise the content of the legislation.
4. However, because the lower house is usually controlled by the government, and members of parliament typically vote according to their parties views, laws will generally only be passed if the government supports it which can minimise checks on law making as it means laws that are supported by the majority of people, but not the government’s policies, are unlikely to be passed.
5. In reality, some senators vote according to political party wishes and not according to
   the interests of their state, not protecting it as designed.

Question 24

what is the separation of powers?

Answer 24

The Australian Constitution establishes three separate powers in our parliamentary system that must operate independently of each other. The purpose is to ensure that no one body has absolute power over the functions of political and legal systems.

Question 25

what are executive powers?

Answer 25

Executive power: is the power to administer laws and manage the business of government. At a commonwealth level this resides with the governor general. Eg. make bodies like police, vic roads etc. which enforce laws. - Section 61

Question 26

what are legislative powers?

Answer 26

Legislative power: is the power to make and amend laws. This resides with the Commonwealth parliament. - Section 1

Question 27

what are judicial powers?

Answer 27

Judicial power: is the power to apply/interpret the law. This is vested in the High Court and other federal courts. - S 71

Question 28

why is there an overlap between executive and legislative powers?

Answer 28

Although in theory they are separate, the cabinet (AKA the executive council which is appointed by the governor general), ie. the PM and senior ministers who exercise executive power, also sit in parliament and formulate and vote on proposed laws so there is an overlap between executive and legislative arms of the government.

ie. executive council, who admnister laws, are also in parliament and can propose law.

Question 29

what are four strengths of the separation of powers

Answer 29

1. The separation of powers allows for the executive to be scrutinised by the legislature, so there are checks and balances because the legislature as the law making body can refuse to pass government legislation that is considered inappropriate.
2. The judiciary is independent of the parliament and government i.e. courts are independent of political influence, which means judges won’t be susceptible to outside power which safeguards citizens from misuse of political power or corruption in the resolution of disputes and judges can interpret and apply the law which they themselves have not made. Particularly vital where the Commonwealth is a party in a case before the court. As such, the body which applies laws is not related to the body that makes them.
3. Despite the overlap between executive and legislative powers, there are still checks between them. Ministers are subject to scrutiny during question time, and it is the role of the opposition to examine policies and bills and expose flaws.
4. The principle of separation of powers is entrenched in the constitution and to abolish it would require a referendum which is a difficult outcome to achieve.

Question 30

what are four limitations of the separation of powers?

Answer 30

1. However, in reality, the body that executes the executive powers is also involved in legislative power so there is some crossover. As such, this can decrease the ability of the separation of powers principle to act as a check on each of the powers because in practice the power to administer law is carried out by the Cabinet.
2. However, judges are appointed by the executive which may be perceived as the executive influencing the composition of the benches of superior courts. That is, the government can choose which judges they want to hear cases.
3. However, when the government controls the senate, there is far less scrutiny applied to proposed laws and therefore the exercise of legislative power, particularly given the legislative power and the executive power are in reality combined. Lower house may pass bills which receive a ‘rubber stamp’, no scrutiny on the relationship between the executive and legislative.
4. However, separation of powers in the constitution only applies at a federal level (although there is still separation at a state level.)

Question 31

what are the five express rights?

Answer 31

The right to freedom of religion - section 116

The right to free interstate trade and commerce - Section 92

The right to receive ‘just terms’ when property is acquired by the commonwealth - section 51 (xxxi)

The right to a trial by jury for indictable commonwealth offences - section 80

The right not to be discriminated against on the basis of state - section 117

Question 32

what are four strengths of express rights?

Answer 32

1. They impose limits on parliament on making laws in certain areas. Eg. Section 116 prohibits the commonwealth from making laws that restrict free exercise of religion.
2. Anyone who believes that a law infringes on their rights is able to challenge it in the High Court, which can in turn declare the law invalid and thus allows for a judicial check on parliament.
3. Express rights cannot be removed or changed by the commonwealth parliament (unless there is a referendum) so it acts as a check on parliament in law making as it ensures that express rights remain constant over time.
4. The high court can act quickly in declaring a law ultra vires if a person brings court action meaning there is an ability to challenge commonwealth laws that are made beyond their power.

Question 33

what are four limitations of express rights?

Answer 33

1. However, they can only be changed through a referendum so there is limited ability for rights to be added to the constitution to provide further checks on law making.
2. However, the cost of initiating a case in the high court is very costly so some may be unable to afford such action, which could result in parliament making laws which infringe peoples express rights not being challenged.
3. However, the rights protected are limited in scope. For instance, many rights only apply to commonwealth and not state parliaments and some rights are narrow, such as trial by jury. Eg. a state law that abolished juries in cases under state law wouldn’t be breaching the constitution.
4. However, the protection of rights does not prevent the commonwealth parliament from passing the law, ie. it has to actually be challenged first, so to some extent, it doesn’t significantly restrict their law making powers.

Question 34

what two sections of the constitution establish the High Court?

Answer 34

Section 71 of the constitution establishes the High Court, and Section 76 gives the parliament power to provide the High Court with jurisdiction to hear disputes arising under the Constitution involving its interpretation.

Question 35

what are three roles of the High Court?

Answer 35

1. Acts as a guardian of the constitution: the High Court explains what the constitution means and decies how it should be interpreted. By interpreting the words it has an influence on how the constitution is applied, ensuring that it is relevant to the Australian people.
2. Acts as a check on any abuse of power: Anyone has the ability to argue that a parliament has made a law that is beyond its power by bringing it to the High Court. The High Court can then declare said law ultra vires - beyond their legal power so that unconstitutional provisions within a legislation are removed or changed.
3. Give meaning to words: When a case is brought to the High Court, it gives meaning to the words in the Constitution by deciding what it means to the case before it. It must then consider the case and decide whether a law is unconstitutional, thus it confirms or denies the right of the lawmaker to make the law. In the past, High Court’s interpretation has shifted the division of law-making powers and found implied rights within the Constitution

Question 36

what are four strengths of the High Court?

Answer 36

1. The establishment of the high court and its role in interpreting the constitution allows the High Court to invalidate and nullify a law passed by a commonwealth or state parliament which did not have the constitutional law making power to enact.
2. The parliaments do not have the authority to abrogate decisions made by the High Court. This ensures that any decisions made regarding the protection of the Constitution is concrete; they cannot be changed or overridden by the parliament if it doesn’t suit the gov’s legislative agenda.
3. Judges in the High Court are independent of the executive and the legislature meaning decisions made regarding interpretation are based on legal principles rather than political pressure.
4. Judges in the High Court are very experienced and have access to a wide range of readily available legal resources, meaning that proper and appropriate decisions are made so its checks on parliament are adequate and astute.

Question 37

what are four limitations of the High Court?

Answer 37

1. However, it can only interpret the constitution, and thereby check upon the laws of the commonwealth, when a relevant case is brought before it by a party with standing. Such cases are often too expensive and complicated for the ordinary person.
2. Decision of the High Court may depend on the composition of the High Court justices. Some are more conservative in their approach to interpreting the Constitution. Less likely to overrule
3. However, they can only rule on the facts of the case that is brought before them and cannot create general principles of law outside of the immediate case.
4. Role of the High Court in interpreting the Constitution is limited by the fact that litigation is expensive, which potentially reduces the volume of cases that can be heard. Standing, costs and time involved can deter valid claims allowing plmt to continue to legislate ultra vires.

Question 38

what are the three steps in a referendum?

Answer 38

Outlined in section 128

1. A bill must be created and passed in both the Senate and the House of Representatives. The Australian Electoral Commission must then send info to every household explaining the proposed changes.
2. The proposed change must fulfil the double majority provision. Ie. there must be a majority of voters in the whole of Australia AND a majority of voters in a majority of states.
3. If the proposed change meets the double majority provision it must then be granted royal assent by the governor general

Question 39

what are four strengths of the double majority referendum requirement?

Answer 39

1. It allows the Australian public to refuse to support a proposed change to the wording of the constitution if it is not deemed appropriate. In this way, the Commonwealth is not able to increase/exert its power in an arbitrary and unrestrained manner.
2. Requirement is strict and has proven difficult to achieve. The need for a majority of states gives the people the right to determine whether a change to the wording is to be made.
3. The double majority means that smaller states such as Tasmania and South Australia are protected so that larger states alone do not dictate the outcome of the referendum.
4. Vote is compulsory which means all eligible voters will be required to vote ‘yes’ or ‘no’ to the proposal. Removes the power from the Commonwealth parliament to decide whether the Constitution should be changed and gives the power to all eligible voters in Australia. Means the public has autonomy and different voices considered.

Question 40

what are four limitations of the double majority referendum requirement?

Answer 40

1. The public may not understand the complexities and nuances of the proposal or may vote ‘no’ in fear of the changes that may occur. Also, there is a general mistrust of politicians so this reluctance to allow for change might see a lack of needed reform.
2. Double majority provision is difficult to achieve, which means that changes to the Constitution – even valid ones- have been limited to those where there is overwhelming public support, or which are non-controversial in nature. May mean that even if a change is necessary it doesn’t happen.
3. However, it is a very time consuming and costly check on the parliament as it takes a significant amount of time and money to be effected.
4. No member of the public has authority to initiate. Increases power the Commonwealth has over proposals to change its own powers and restrictions as needs to be introduced via a Constitution Alteration Bill. Can only allow Australians to protect the Constitution when the Commonwealth Parliament seeks to change the Constitution, which is not often.

Question 41

what is section 7 and 24?

Answer 41

7 - Sets out matters related to the Senate. Says that the senate shall be composed of members from each State, directly chosen by the people via voting. There shall be six senators for each original state. They shall be chosen for terms of 6 years.

24 - Sets out matters related to the House of Representatives. Says the HoR shall be composed of members directly chosen by the people of the Commonwealth and the number of members shall be twice as many as the number of senators

Both sections require the Commonwealth houses of parliament to be directly chosen by the people. This enshrined in the Constitution a system of representative government, that is, a government which reflects the views and values of the majority of people who voted for it. High Court has interpreted these words from constitution to form the basis of an implied freedom of political freedom.

Question 42

what are the facts of Roach V Electoral commissioner [2007]

Answer 42

In 2006, the commonwealth parliament passed the
Electoral and Referendum Amendment Act 2006 (Cth),
which banned all convicted and sentenced prisoners from voting in elections.
Under the previous Act made in 2004 prisoners serving sentences longer than 3 years were banned from voting, so the 2006 Act extended this ban so that no sentenced prisoners could vote.
Vicki Lee Roach, who was serving a 6 year sentence, challenged the constitutional validity of both Acts in the High Court.

Question 43

what was the High Courts decision in the Roach v Electoral Commissioner case?

Answer 43

The High Court established that the 2006 Act was inconsistent with the representative democracy established in the constitution because Sections 7 and 24 require the parliament to be chosen ‘directly by the people’, thereby enshrining the Australian people with the right to vote. However, they also ruled that the right to vote could be removed for serious criminal misconduct (such as when an individual is convicted of treason or is serving a sentence over 3 years), so the 2004 Act was declared valid.

Question 44

what was the significance of Roach v Electoral Commissioner?

Answer 44

the High Court has interpreted that Sections 7 and 24 do not allow for unreasonable restrictions on the ability of people to choose the members of parliament. Any limitation must be for appropriate reasons.

Set precedent for future cases and has been confirmed by other cases since such as Rowe V Electoral Commissioner [2010]

In this way, the Roach case determined that Sections 7 and 24 limit the powers of the Commonwealth parliament which was found to be unable to make laws which restrict the right to vote (except in those circumstances outlined by the High Court).

However, it is important to note that the previous Commonwealth legislation which prohibited prisoners serving sentences over 3 years was deemed to be valid, and therefore Roach remained unable to vote. The reason behind this can be linked to the idea that members of the HoR serve for 3 year terms, so any individual in prison longer than 3 years, is not directly affected.

Question 45

what were the facts of the 1967 referendum?

Answer 45

Until 1967, the constitution denied the Commonwealth power to legislate for Indigenous people in the states or to include them in national censuses.
Section 51 (xxvi) said that the parliament has the power to make laws with respect to “the people of any race, other than the Aboriginal race in any State” and Section 127 said that Indigenous Australians were not to be counted in determining the numbers of the population.
Many people thought these were unfair, and a barrier to effective policy making.
In 1967, it was proposed to remove the barriers facing Aboriginal people from the constitution, and the PM at the time, Harold Holt, held a referendum on whether the Commonwealth Parliament should have powers in respect to Indigenous people.
It was proposed under the Constitution Alteration (Aboriginals) Bill 1967 (Cth). Previously legislation for Aboriginal people was residual.

Question 46

what was the result of the 1967 referendum?

Answer 46

The question asked was whether Indigenous people should be included in the national census and whether the Cth Parliament should be allowed to create laws with respect to Indigenous people, meaning the power to make laws with regard to Indigenous Australians would become a concurrent power.

90.77% of voters were in favour of this change, and there was a majority in all 6 states, thus reflecting a general community view that it was time to make amends. This altered Section 51 (xxvi) and deleted Section 127.

Question 47

what was the significance of the 1967 referendum?

Answer 47

The amendment allowed the Commonwealth parliament to move into an area that it was previously denied under the constitution.

Highlights the power of the people to decide whether key changes in the wording of the Constitution are to be made, especially those that relate to social and human rights issues. The overwhelming support across all states for the proposal, as well as the national vote, highlighted the importance of the referendum process in being able to allow the views and values of the public to be reflected in Constitutional change.

The Commonwealth was able to direct government spending towards Indigenous affairs, such as health and education programs. Could expand their role and implement major, necessary reforms. Eventually led to the passing of the Native Title Act 1993 (Cth) which allowed indigenous people to claim land rights. Thus, paved the way for changes in the way Indigenous people were treated.

Question 48

what were the facts of R v Brislan [1935]

Answer 48

The commonwealth had passed the
Wireless Telegraphy Act 1905 (Cth)
which required all owners of wireless sets (radios) to hold a license. The defendant was charged for having a wireless set without a license as per this Act. The defendant then challenged the validity of the Act, arguing that the Constitution did not give the Commonwealth Parliament the power to legislate, with regards to wireless sets.

Question 49

what section of the constitution was involved in R v Brislan?

Answer 49

Section 51 (v) gave the commonwealth power to legislate over ‘postal, telegraphic, telephonic, and other like services’. The defendant argued that a wireless set did not classify as a service in the sense that the term was used in Section 51 (v), and therefore the Act should be invalid

Question 50

what was the high court decision in R V Brislan?

Answer 50

The High Court interpreted that broadcasting to a wireless set was a form of telephonic service, and therefore fell within the scope of Section 51 (v). Therefore, it was found that the commonwealth was in fact legislating within its power when they passed the Act.

Question 51

what was the significance of R v Brislan?

Answer 51

The judgement changed the division of law making powers by extending the Commonwealth’s power to include broadcasting to a wireless set ie. an additional form of communication service.

As such, there was a shift in the division of law making powers from the states to the commonwealth, that is, the commonwealth parliament gained power to make laws about wireless sets, whilst state parliaments lost it.

Further, it was significant as it meant that if a state parliament passed a law with respect to broadcasting to wireless sets and there was a conflict between the state law and the commonwealth law, the commonwealth law would prevail in accordance with Section 109 of the constitution.

Question 52

what is the external affairs power?

Answer 52

Under Section 51 (xxix) of the constitution, the Commonwealth has power to create laws in relation to ‘external affairs’. This power has been relied on by the Commonwealth to pass legislation to reflect international agreements that Australia has entered into.

Question 53

what are international treaties?

Answer 53

An international treaty is a binding agreement between countries and governed by international law.

It can be bilateral (between two countries) or multilateral (between three or more countries). Multilateral treaties are generally developed through international organisations such as the United Nations.

The power to enter into treaties is considered an executive power under Section 61 so it is the responsibility of the government, rather than the parliament to negotiate treaties, although the parliament plays a law if it is ratified (brought into legislation).

Question 54

what are international declarations?

Answer 54

An international declaration is a non-binding agreement between countries which sets out ‘aspirations’ or ‘intentions’ of the countries to the agreement. They can lead to treaties being made.

Question 55

what are the facts of the Tasmanian Dams case?

Answer 55

The Tasmanian government passed the
Gordon River Hydro-electric Power Development Act 1982 (Tas)
as part of it’s plan to dam the Franklin River to set up a hydroelectric power scheme - which was within the states law making powers (ie. residual).

In 1982, UNESCO included Franklin and Gordon on the World Heritage List. In order to prevent the construction of the proposed Tasmanian Dam, the Commonwealth Parliament passed the
World Heritage Properties Conservation Act 1983 (Cth).

In response, the Tasmanian Government argued that the Commonwealth parliament had passed a law in an area of residual powers, and it was therefore unconstitutional.
However, the commonwealth parliament argued that in accordance with its ‘external affairs’ law-making power it had the authority to make laws relating to the World Heritage Listing (an international treaty).

Question 56

what was the high court decision in the Tasmanian dams case?

Answer 56

The High Court decided that as all aspects of Australia’s relationships with other countries are included under the external affairs power, and because the Franklin River area was covered by an international treaty, it too came under the external affairs power. Thus, the commonwealth law was constitutionally valid, meaning that this inconsistency between the commonwealth and state laws resulted in the application of section 109 meaning the Tasmanian government was prohibited from constructing the dam.

Question 57

what was the significance of the Tasmanian Dams case?

Answer 57

Through the high courts interpretation of Section 51 (xxix), the commonwealths ‘external affairs’ power was extended to include law-making necessary to uphold obligations under an international treaty, so the commonwealth parliament was able to move into a law making area previously left with the states, therefore increasing parliament’s law making power. It also meant the commonwealth could assume power over other issues involving international treaties, such as human rights.

Essentially, there was a shift in the law making powers from the states to the commonwealth, with the commonwealth parliament gaining the power to legislate in areas of residual power when necessary to fulfil Australia’s obligations under an international declaration or treaty.

Accordingly, internal agreements have had a significant impact on the external affairs power of the commonwealth.

Question 58

what impacts have international agreements had on the external affairs power?

Answer 58

Court has held that the power enables the Commonwealth Parliament to enact legislation in areas that it doesn’t have express Constitutional jurisdiction, the objective of which is to give effect to obligations found in international law.
High Court interpretations of the external affairs power in relation to international obligations have therefore expanded and broadened what ‘external affairs’ means.

The Tasmanian Dam case and Lemonthyme Forest case, among others, uphold the idea that the commonwealth is able to legislate in areas it has no express constitutional power if it were to give effect to its international obligations, despite it being residual.

Question 59

what are limitations imposed on parliament in relation to international agreements and the external affairs power?

Answer 59

It does not enable the commonwealth to extend far beyond what is in the treaty.

The treaty, or other international agreement must be bona fide meaning it is genuine and in good faith. Though this is difficult to prove. Ie. it would be difficult to argue that Australia’s agreement to sign a treaty and give effect to it is disingenuous.

Parliament doesn’t have free reign to give effect to obligations contained in agreements if legislation giving effect to treat obligation interferes with an express right. Likely to be invalidated.

Question 60

what are four strengths of the external affairs power?

Answer 60

1. Commonwealth undertakes a consultation process before almost every action in relation to treaties such as ratifying or withdrawing. Joint standing committee on treaties investigates after treaty tabled in parliament
2. Because Australia is treated as one country on the international scale, it is appropriate that the Commonwealth be given this power
3. High Court is fulfilling role given to it by Constitution and helping the Constitution endure
4. High Court justices are objective, not political entities

Question 61

what are two limitations of the external affairs power?

Answer 61

1. Current broad reading gives the Commonwealth power over topics such as natural heritage and rights of children which were not included by founders in enumerated powers. Progressive political act to insert into the list of specific powers through a back door which might ignore intentions of the founders
2. Takes power away from the states, rendering them obsolete in a way.