Unit 3: AOS 2: The Constitution

Question 1

What are residual powers?

Answer 1

Residual powers are those law-making powers left with the states at the time of federation and are not listed in the Constitution. The Constitution protects the continuing power of the states. The Commonwealth Parliament obtains no right to make laws in the area of residual powers, although some inroads have been made through High Court interpretations, tied grants and changes to the Constitution.

Question 2

What are tied grants?

Answer 2

Tied grants are grants of money by the Commonwealth to the states that specify what the states must do with the funds.

Question 3

What are examples of residual powers?

Answer 3

Criminal Law, Education (Secondary and Primary) and Public Transport

Question 4

What are specific powers?

Answer 4

Powers that are set out specifically in the Constitution. The purpose of these powers is to make laws for the peace, order and good government of the Commonwealth. Specific powers are either exclusive or concurrent.

Question 5

What are specific powers (exclusive)?

Answer 5

Powers that can only be exercised by the Commonwealth Parliament. Meaning that only the Commonwealth Parliament can make laws in these areas.

Question 6

Discuss how specific powers that have been made exclusive.

Answer 6

Some specific powers are make exclusive by other sections of the Constitution, such as the coinage of money and S115 stating that a state shall not coin money. Other specific powers are exclusive by their nature.

Question 7

What are examples of specific exclusive powers?

Answer 7

Defense and Coinage

Question 8

What are specific powers (concurrent)?

Answer 8

Law-making powers over which both the Commonwealth Parliament and state Parliaments share jurisdiction. All of the powers that are not made exclusive to the Commonwealth Parliament are concurrent powers.

Question 9

What are example of specific concurrent powers?

Answer 9

Taxation and marriage.

Question 10

Discuss the impact of S109

Answer 10

S109 states that should there be an inconsistency between the Commonwealth and state legislation, then the Commonwealth legislation shall prevail to the extent of inconsistency. That is the part or section of the state legislation that is inconsistent with the Commonwealth is invalid.

Question 11

Give an overview of what restrictions are imposed on law-making process.

Answer 11

The division of powers places restrictions on the law-making power of both state and Commonwealth. State and Commonwealth Parliaments are supreme law-making bodies within their own jurisdiction. Parliaments may, however, be restricted in their law-making if there is a strong opposition and the government.

Question 12

Explain restrictions on state Parliament

Answer 12

Under the Constitution, the states are restricted from making law in areas of exclusive power held by the Commonwealth. The power of the states is also restricted by S109.

Question 13

Give some examples on restrictions of state parliament

Answer 13

S114- Raising military forces (exclusive power).
The states are prohibited from raising naval and military forces.
S115- Coining money (exclusive power).
The states are prevented from coining money.

Question 14

Explain restrictions on Commonwealth Parliament

Answer 14

Restricted from legislating in areas of residual powers. Certain sections of the Constitution also impose restrictions on law-making by the Commonwealth Parliament. The principal of separation of powers, is a restriction on Commonwealth Parliament as it ensures that Commonwealth cannot form a body that is comprised of judicial, executive and legislative powers.
The High Court is also able to place restrictions on the Commonwealth Parliament through it’s interpretation of the Constitution.

Question 15

What are examples of restrictions on Commonwealth Parliament?

Answer 15

S116- Freedom of religion, prevents the Commonwealth Parliament from legislating with respect to religion, thereby guaranteeing freedom of religion.
S117- Rights of residents in states, prevented the residents of a state from being discriminated against.

Question 16

What are the three ways in which the division of law-making powers in the Constitution can be changed?

Answer 16

-Successful referendum changes the words in the Constitution.
-High Court interpretation of the Constitution, which changes the meaning of the words in the Constitution.
Referral of powers from the states to the Commonwealth Parliament , where law-making powers are given to the Commonwealth by the state.

Question 17

Why do the words in the Constitution need to change?

Answer 17

To keep up with the changes in societies values

Question 18

What are the three stages of changing under section 128

Answer 18

Parliament
People
Governor General

Question 19

Role of Parliament in changing the Constitution under S128

Answer 19

Any proposed change to the Constitution must first be passed by Parliament. A Bill is prepared and then is introduced into the Commonwealth Parliament.
Can be passed by both houses, or one house twice, and must be passed by an absolute majority (more than 50%)
If the other house rejects it or it requires ammendments that are not accepted by the first house, then after three months it can try and be passed again.
If rejected a second time the governor general can still submit the proposed change to the public.

Question 20

Role of the People in changing the Constitution under S128

Answer 20

• Only can be changed after a successful referendum
• It will be put to the people no less than 2 and no more than 6 months after it has been passed by Parliament ((by both houses or one house twice)
• All electors must vote in a referendum
• Information is sent to every household informing them of the referendum and explaining arguments for and against.
• Electors will answer ‘yes’ or ‘no’.
• Each referendum must satisfy double majority provision.

Question 21

What is a double majority provision?

Answer 21

-A majority of votes in the whole of Australia (including territories) must vote ‘yes’.
AND
-A majority of voters in a majority of states must vote ‘yes’ to the proposed change. (4 out of 6 states).

Question 22

Role of the governor-general in changing the Constitution under S128

Answer 22

If the proposed change receives a ‘yes’ from the majority of voters in a majority of states as well as a majority of all electors, then the governor-general provides Royal Assent.

Question 23

Factors affecting the likely success of a referendum: Timing

Answer 23

The timing of referendums often leads to their lack of success, this being due to often due to the expense of referendums they are held at the same time as an election. Hence the election taking public attention away from the referendum vote.

Question 24

Factors affecting the likely success of a referendum: Double majority

Answer 24

The requirement of a double majority has proven to be challenging in the past , in particular the requirement of the majority of voters in the majority of states, throughout history has proved difficult to satisfy.
13 of 44 referendum proposals has received the majority of support of Australian voters overall
however 5 of these did not satisfy the majority of voters in the majority of states provision.

Question 25

Factors affecting the likely success of a referendum: Lack of Bi-partisan support

Answer 25

Those changes that are most likely to succeed are those that are supported by both of the parties and those issues that the voting public can relate to. If parties having opposing views the the referendum may prove to become quite confusing for voters.

Question 26

Factors affecting the likely success of a referendum: High Cost of Holding a Referendum

Answer 26

The cost of holding a referendum is high and therefore alternative ways of achieving the same result may be used instead of holding a referendum. Example 1996 Gun law ownership, expense avoided by states agreeing to uniform restrictions on gun ownership.

Question 27

Strengths of Referendums as a means of changing law-making powers

Answer 27

• The people can have their say: The Constitution can only be changed if a majority of the electors in Australian and a majority of states agree to the change
• Protection of Smaller States: The double majority protects the smaller states from being dominated by the larger states because it is necessary to have a majority ‘yes’ vote in a majority of states.
• Protection of the Constitution: The lengthy process involved in changing the Constitution from changes being proposed that have not been thoroughly considered and do not have overwhelming support.
• Compulsory Vote: The views of the community as a whole are more likely to be represented in a referendum because voting is compulsory.

Question 28

Weaknesses of Referendums as a means of changing law-making powers

Answer 28

Distrust and lack of understanding- People may see a referendum as giving politicians more power and will therefore tend to vote ‘no.’ People may also find referendum proposals difficult to understand and therefore vote ‘no.’
Double Majority- It is very difficult to achieve double majority.
Conservative- Many change that appear to have merit may not be successful because people are often conservative when it comes to voting for change. Most changes that have been successful have related to minor changes in the Constitution.
Timing- The focus of the referendum is lost to some extent when put to the people at the same time as an election.

Question 29

Proposals in the 1967 referendum

Answer 29

• To include indigenous Australians in the national census

- To allow the Commonwealth to make laws for the Aboriginal people.

Question 30

The outcome of the 1967 referendum

Answer 30

National ‘yes’ was voted with 90.77 percent.
Highest in Victoria
The ‘no’ vote was strongest in states that had the largest Aboriginal population.

Question 31

Reasons for the 1967 referendum

Answer 31

Prior to the referendum
section 51 (xxvi) prohibited the Commonwealth from making laws for the Aboriginals
and section 127 prohibited that Aboriginals be banned from being counted in the Census.

This meant that Commonwealth Parliament could not legislate with regards to Aboriginal Australians and they were not counted in the population in states or territories.
Impacted states with large amounts of Aboriginal numbers as it affected their grants. as well as impacting census information.

Question 32

Impact of the 1967 Referendum

Answer 32

• The Commonwealth was now given new powers that they did not previously have, with states originally having the power as a residual power.
• Under Section 109 any law that the Commonwealth made would overturn state law where there is inconsistancies, the state law became invalid where this occurred.
• Commonwealth used this power to create laws on Aborignal land management, welfare, Native Title and work schemes.
• Any state law on Aboriginal people must be consistent with the exsisting Commonwealth law.

Question 33

Explain who the High Court is

Answer 33

The High Court was established in under Section 71 of the Constitution of Australia Constitution Act.
The Constitution fives the High Court the power to decide disputes about the meaning of the Constitution.

The High Court CANT change the wording of the Constitution
The High Courts interpretation can change the division of law making powers

Question 34

Explain Section 76 in regards to the High Court

Answer 34

Under 76 of the constitution the High Court has the power to determine matters

• arising under the Constitution, or matters relating to interpretation
• arising under any laws made by the Commonwealth
• relating to the same subject matter claimed under the laws of different states.

Question 35

The three roles of the High Court

Answer 35

• Act as a guardian to the Constitution: Influencing day to day applications and ensuring it stays relevant
• Keeps Constitution up to date: changes in societies attitudes, technology and community standards.

Question 36

Explain the Brislan Case

Answer 36

Before the case the Wireless Telegraphy Act 1905 Act Section 51 within which required all owners of wireless sets to hole a license, the defendant was charged for having one without a license.
Brislan challenged claming that the Constitution did not give the power to the Commonwealth to legislate in regards to wireless sets and that it was a residual power and lied with the states.
High Court had to determine the words “like services” in section 51.
It was found that a wireless device was a ‘like service’ and therefore the Act was valid.

Question 37

What was the impact of the Brislan Case

Answer 37

The impact of this case is that there was a shift in the division of law-making powers from the States to Parliament.
Act was changed to include wireless sets. This meant the Commonwealth had moved into an area of law-making that was a residual power as broadcasting to wireless sets was not mentioned in the Constitution.
If a state passed a law in this area and there was a conflict between the state law and the Commonwealth law, the Commonwealth law would prevail.

Question 38

Explain the Roads Case

Answer 38

In the Roads case of Victoria V The Commonwealth the High Court considered whether the Commonwealth, using it’s power under section 96, had the authority to deliver a grant of money to the states stipulated how the money was suppose to be spent, even if the area concerned was technically a residual power, such as road construction..
The High Court failed to agree with the states contentions, according to the High Court the Commonwealth Parliament could grant financial assistance to any state on any condition it saw fit.

Question 39

What was the impact of the Roads case

Answer 39

The Commonwealth gained power to give grants for specific purposes. This meant they had the power to give money to the states, but tell them how this could be spent.
This increased the powers of the Commonwealth.

Question 40

Explain Section 51 (xxxvii) in regards to the referral of powers

Answer 40

This section gives the Commonwealth Parliament power over any matters referred to it by the states, but that power can only operate in those states that have referred there power to the Commonwealth.

Question 41

What is the process of referral of law-making powers

Answer 41

Involves the state agreeing to hand over an area of power to the Commonwealth. When the decision has been reached, the state parliament pass an Act giving their law-making power to the Parliament, and the Commonwealth Parliament passes an Act to accept it.

Question 42

Discuss the areas of uncertainty with the referral of powers

Answer 42

There are two uncertainities

Question 43

Is a referral of powers able to be revoked?

Answer 43

Is a states has referred power to the Commonwealth, can the state decide to cancel this referral of powers, or would a referendum be needed to make a change to the referral of powers.

Question 44

Is a referral of powers exclusive?

Answer 44

If a state has referred power in an area of law-making to the Commonwealth does the state still have the power to make laws in this area or does it automatically become an area of exclusive power once the referral has been made?

Question 45

Strengths of referring power as a means of changing law-making powers

Answer 45

• The states are able to discuss the issue thouroughly and decide which law-making powers are to be referred to the Commonwealth.
• The Commonwealth is able to make laws for the benefit of the whole country in areas originally given to the states under the Constitution.
• It is difficult to get the states to pass uniform laws on a particular issue. There are likely to be small differences. However, if the power has been referred to the Commonwealth, then the Commonwealth Parliament is able to pass one law that affects the whole country.

Question 46

Weaknesses of referring power as a means of changing law-making powers

Answer 46

• States may find that it would have been better for them to keep control of the area of law that has been referred to the Commonwealth.
• The states can agree to pass uniform laws without losing their law-making powers
• It is another way of centralising law-making and reducing the law-making powers of the states.

Question 47

Weaknesses of referring power as a means of changing law-making powers

Answer 47

• States may find that it would have been better for them to keep control of the area of law that has been referred to the Commonwealth.
• The states can agree to pass uniform laws without losing their law-making powers
• It is another way of centralising law-making and reducing the law-making powers of the states.

Question 48

Example of referral of powers

Answer 48

S51 gives the Commonwealth power to make laws regarding military matters, but does not extend to laws regulating internal security
In 2003 all states referred a limited power of the Criminal Code Amendment (Terrorism) Act 200.
This law now allows the Commonwealth to make laws regarding terrorist acts within Australia.

Question 49

Strengths of the High Court Interpreatiations as a means of changing law-making powers

Answer 49

• A matter can be dealt with when a case is brought before the court and an injustice can be rectified
• The High Court justices are experts in constitutional law and therefore very suited to interpreting the words in the Constitution and applying the Constitution to the case before the court.
• The High Court can act as a check against any abuse of power by the states or the Commonwealth Parliament.
• The High Court can keep the Constitution relevant and up to date by interpreting the words in the Constitution

Question 50

Weaknesses of the High Court Interpreatiations as a means of changing law-making powers

Answer 50

• The High Court cannot change the words in the Constitution.
• The High Court must wait for a relevant case to be brought before the courts before it can interpret the words of the Constitution,
• The High Court may be conservative in its interpretation of the Constitution and therefore changes in interpretation may not be made.
• The decision in a case brought before the High Court may depend on the composition of the High Court. Some justices are more conservative in their approach to interpreting the Constitution.