Unit 3 AOS 2

Question 1

What is the role of the constitution?

Answer 1

The constitution is an act of parliament which depicts how law making power is divided within the commonwealth and state parliaments.

Question 2

What is section 51?

Answer 2

Section 51 is the area of the constitution which defines the division of powers between state and government into three categories, Specific,Exclusive and Concurrent

Question 3

What is section 109?

Answer 3

Section 109 declares that the Commonwealth has primacy, meaning that if there is a conflict between federal and state law the Commonwealth will prevail in the area of inconsistency. This restricts the state from creating legislation in areas of lawmaking they share with the Commonwealth in fear it will be overturned.

Question 4

What is the division of powers in the constitution?

Answer 4

Specific- powers set out in the constitution
can be
Exclusive- meaning it is an area of law which only the federal government can make laws in
Concurrent- meaning it is an area of laws shared by state and federal parliament

The can also be residual referring to the fact they are not set out in the constitution. they are powers which were left to the states at federation

Question 5

Three examples of Exclusive powers

Answer 5

• Coining
• Military
• Customs

Question 6

Three examples of Concurrent powers

Answer 6

• Taxation
• Mariage
• Banking

Question 7

Three examples of residual powers

Answer 7

• Health
• Education
• Public Transport

Question 8

Name 3 restrictions which the constitution places on the commonwealth.

Answer 8

1. They can not make laws in areas of residual powers these were left to the state at federation (s51)
2. The commonwealth can not infringe entrenched rights such as a right to religion. Meaning they do not have the power to make any law which discriminates against religion.(s116)
3. The can only change the constitution by referendum (s128)

Question 9

Name 3 restrictions which the constitution places on the state.

Answer 9

1. They cannot coin their own money (S115)
2. They do not have the right to form a military (S 114)
3. In areas of concurrent power, the state can not be in conflict with the commonwealths ruling or their law will be declared invalid. (s109)

Question 10

What is a referendum?

Answer 10

Refers to a proposal for constitutional change that is put out to a public vote.
Its complex requirements are articulated in section 128 of the constitution. Only 8 out of 44 referendums have been successful proving them a difficult method of achieving change due to a range of factors

Question 11

What are the steps in the process of a referendum?

Answer 11

1.Change has to be worded into a Bill
2.Bill must be passed by both houses then presented to voters between 2 and 6 months after being passed in both houses
2.Must have a double majority of voters and majority of states to ensure fairness across states ie. areas of higher population don’t have an advantage in the vote
4/6 states must vote yes AND majority of voters nationwide
3.Must be approved by the governor general (given royal assent)

Question 12

What are three factors which may effect the likely sucess of a referendum

Answer 12

1.Proposal are usually complex
Many voters will just vote no to avoid a change they do not completely understand

2.Double majority required for change
The double majority provision is extremely difficult to achieve as it requires both a majority of voters nationwide and the majority of voters in a majority of states. Meaning that even if majority of the total population votes yes, if 4/6 states have not got a majority of yes votes the referendum cannot be successful

3.Timing
Referendums are often held alongside regular political elections to save money. This can be a detriment to their success as it may create confusion or mean that voters are too distracted by their political vote to give the referendum the attention it deserves.

Question 13

Desribe one sucessful referendum which changed the division of law making powers.

Answer 13

The equal rights for Indigenous Australians referendum of
1967
This referendum aimed to alter/remove two sections of the Australian constitution which alienated Indigenous Australians. This included section 127 which excluded them from the population counts and labeling them as flora and fauna and parts of section 52 which placed the power of making all laws pertaining to Indigenous people with the states, allowing for inconsistent and discriminatory laws to be made.

The overwhelming success of the referendum lead to a shift in power from the state to the federal parliament by altering sections 51 and 127 so that we’re no longer discriminatory to Aboriginals, as well as moving Indigenous affairs from a concurrent power to an executive power allow for more consistent law.

Question 14

The role of the High Court in interpreting the Commonwealth Constitution

Answer 14

The high court cannot change the words of the constitution but their interpretation of the words can add different meaning to them and alter the balance of powers of the state and commonwealth

-Interprets words and gives meaning to them
-Outlines their general meaning or their application in terms of a specific case
-Keeps constitution up to date
-Changes interpretation due to changes in attitudes, technology and community standards
Acts as a check and balance

Question 15

Explain the facts of the Franklin River Dams case

(1983)?

Answer 15

The Tasmanian government had proposed to build a dam, an action within their residual power, however it happens that the site of the dam was heritage listed under an international treaty.
The Federal government then claimed that they had an executive power in this area as it fell under external affairs
The high court ruled in favour of the federal government leading to a shift in legislative powder from the state of Tasmania to the commonwealth.