Unit 3 AOS 2

Question 1

Specific

Answer 1

Powers given to the Commonwealth Parliament under s51 of the constitution to make laws for the ‘peace, order and good government’ of Australia.

Question 2

Concurrent

Answer 2

Both the Commonwealth and the State Parliaments can pass laws in these areas BUT if there is an inconsistency then the Commonwealth law prevails and the State law is made invalid to the extent of the inconsistency. (section 109) Eg. Taxation, marriage

Question 3

Exclusive

Answer 3

Only the Commonwealth can pass laws in this area. Eg. Defence, coining money, customs and excise.

Question 4

Residual

Answer 4

Powers left with the states at Federation- not listed in s51. Eg’s. education, public transport.

Question 5

Restrictions imposed on states

Answer 5

States cannot legislate in areas of exclusive power, as they belong solely to the Commonwealth

Cannot legislate to restrict trades between the States.

In areas of concurrent power, any state law that is inconsistent with a commonwealth law shall be declared invalid to the extent of the inconsistency (s109)

Question 6

Restrictions imposed on commonwealth

Answer 6

Can’t legislate in areas of residual powers.

Cannot alter the constitution- this must be put to a referendum (S128)

Cannot make a law for establishing, imposing or prohibiting any religion (s 116)

Cannot restrict free trade between the states (s 92)

Question 7

Process of change by referendum

Answer 7

Need or desire for change. 
Constitution alteration bill is drafted
Passage of bill through parliament
Passed by both houses 
Double majority 
Royal assent
Constitution is altered

Question 8

one successful referendum

Answer 8

1967 Indigenous rights case: Equal citizenship rights for Aborigines

The referendum was to enable the Commonwealth Parliament to enact laws for Aborigines and to remove the prohibition against counting Aboriginal people in population counts. The referendum was successful and section 51 was changed to include the Aboriginal race and the constitution was also changed to include Indigenous Australians in the census.

Question 9

Impact of referendums

Answer 9

Referendums rarely occur and, when they do, are rarely successful for various reasons, including people do not understand, are unlikely to want change, vote on party lines and can be confused about the issue.
Many referendums have nothing to do with law-making powers and so have no impact on the division of powers
Every time a referendum has been successful, the Commonwealth has increased its power
They are expensive and time-consuming
Generally, only uncontroversial referendums or those with strong community support will pass

Question 10

Factors impacting success of a referendum

Answer 10

Strict requirements: The double majority provision- it is difficult to satisfy as both the majority of people in the states and the majority of states must vote yes for the referendum to be successful.

Bipartisan support: Unless both parties support the referendum it is difficult to pass as otherwise both parties will be urging their followers to vote seperate ways leading to a division in the voting public making a clear majority difficult to achieve.

Level of voter understanding: Lack of understanding of the process as well as the arguments for and against the proposal may lead to voters voting ‘no’ as a safer option.

Resistance to change: Voters may be conservative or reluctant to change especially if they believe that the current process is working for them.

Question 11

Role of high court in interpreting the constitution

Answer 11

High court cannot change the words in the constitution, only the way in which it is interpreted.

Interpretation adds meaning to the constitution and can change the division of law making powers by either increasing or decreasing powers.

Endeavour to interpret the constitution in the original spirit in which it was written,

Question 12

High court case

Answer 12

Mrs Brislan was charged under the ‘Wireless telegraphy act 1905) with having a wireless without holding a licence for it. She challenged the validity of the ac, claiming the constitution did not give the Commonwealth power to make laws about wireless. HCT interpretation declared ‘other like services did include wireless.

Question 13

Ability of states to refer powers (+)

Answer 13

Allows for consistency across states in situations where consistent laws would be beneficial→ ensures it benefits all Australians, no matter where they live.
Allows the division of law-making power to be altered without requiring an amendment to the Constitution – a more efficient process than a referendum (cheaper, quicker)
The Commonwealth can pass legislation rather than relying on the states to pass uniform legislation, which can be delayed or amended due to political particularities in each state
Because there is agreement between a state/s and the Commonwealth, referrals are generally less politically contentious

Question 14

Ability of states to refer powers (-)

Answer 14

Some states may refer their powers while other do not, which means inconsistency may still exist. S109 invalid as it’s concerning residual powers.
The Commonwealth can refuse to accept the referred power→ inconsistency still may occur
States are generally reluctant to refer their powers, preferring to keep the division as it is (particularly because the High Court has historically shifted the balance towards the Commonwealth.

Question 15

Methods used to change the division of law making powers:

Answer 15

Referendums
High court interpretation
Referral of powers

Question 16

Why not have a bill of rights in Australia

Answer 16

Australia has a federal structure with a Commonwealth and State parliament meaning that no one parliament has excessive power.

The principles of representative and responsible Government that underpin the parliamentary system protect our rights.

Separation of Powers provides check and balances to ensure that none of the arms of government overstep their powers under the constitution.

S 128 ‘double majority’ provision – right to change the constitution but must be approved by majority

Question 17

Structural protection (describe)

Answer 17

Refers to the systems or mechanisms in the Constitution that indirectly protect human rights by preventing the abuse of power. Structural protection of rights reflect the fact that there are checks and balances built into the constitution to prevent the abuse of power. Eg. SOP

Question 18

Structural protection (+)

Answer 18

Structural protection reflects the fact that there are checks and balances built into the Constitution that prevent power being abused and therefore protect human rights.

For example, the separation of powers provides the ability for the courts to check up on the actions of the government, so if, for example, the government tried to create a new law that would infringe a person’s rights, that law could be challenged in court.

Question 19

Structural protection (-)

Answer 19

High court has to wait for a case to be brought to them for them to interpret- costly and takes a long time. (high court- SOP)

The High Court is unable to provide remedies for infringement of rights. They can only declare the legislation invalid. A separate case would be needed to seek a remedy.

Question 20

Express rights

Answer 20

These are specific rights laid out in the constitution and are mostly in forms of restrictions on the Commonwealth Parliament. This means parliament cannot pass laws that would infringe on these rights. Eg. Freedom of Religion.

Question 21

Express rights +

Answer 21

Unlikely to be removed as they are entrenched and can only be changed by referendum.
Has to have overwhelming support- protects them

There are some limitations on the scope of the express rights. Right to jury is limited to indictable Commonwealth offences.

Question 22

Express rights -

Answer 22

The Constitution contains a limited number of express rights. The list is not comprehensive and those rights that are expressly protected are expressed as limitations on the Commonwealth’s power rather than as positive rights.

Can only be changed by referendum- referenda success rate is low. However it’s also a strength as we want it to be stable and protected

Question 23

Implied rights (description)

Answer 23

Implied rights are not specifically stated in the Constitution. They are rights that the High Court has found were intended to be implied into (seen as part of/are an underlying principle of) the Constitution.
→ Only one implied right has been found so far – the right to freedom of political communication
→ The High Court has said that, in a democracy, robust political debate is important.

Question 24

Implied rights (+)

Answer 24

The High Court has the ability to imply rights; for example, the implied right to political communication. They could use this ability to imply other rights to help ensure justice.

Example of implied right is freedom of political communication- High Court says robust political debate is important.

Question 25

Implied rights (-)

Answer 25

The High Court has only recognised one implied right (freedom of political communication) and there is little suggestion that they are likely to imply any number of other rights

The High Court has to wait for a case to come before it to be able to imply rights

Question 26

High Court case- protection of rights- Roach case

Answer 26

Vicki Roach was sentenced to six years in jail. She challenged the validity of the 2006 ‘electoral and referendum amendment’ which prevented prisoners from voting. She challenged the amendment of the act on 4 grounds. Her 4th ground was successful as she argued the act prevented a representative government as it excluded a large people from voting. The High court found that the 2006 amendment of a complete ban on prisoners voting was unconstitutional as it prevented the notion of a representative government.

Question 27

South Africa

Answer 27

Similarities:
Express rights are entrenched and can only be changed by the mechanism used to change the constitution.
Rights are fully enforceable by the courts, which can declare legislation that violates the protected rights as unconstitutional and the constitutional court can declare the legislation as invalid.

South Africa’s bill of rights has an extremely extensive list of express rights and also contains a limitation clause allowing certain rights to be limited which is not available in australia.

Differences:
South African court can provide remedies to parties whose rights have been infringed, this is not an option for the High Court of Australia, where separate action would need to ensue.
Australia has to have a case be brought forward that personal affects the plaintiff.