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Legal 3/4 > UNIT 3 - AOS 2A > Flashcards

UNIT 3 - AOS 2A Flashcards

1
Q

what are the two types of law making powers in the division of law making powers ?

A

specific and residual

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2
Q

specific powers

A

specific powers are listed in the constitution under sections 51 & 52. specific powers include two different types:
concurrent and exclusive.

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3
Q

concurrent powers

A

are shared between the commonwealth and the states, examples include taxation

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4
Q

exclusive powers

A

are held only by the commonwealth and is the only body to legislate in areas such as immigration and tariffs

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5
Q

residual powers

A

any power not listed in the constitution is known as a residual power and remain with the states.
eg. public transport and criminal law

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6
Q

relevance of S 109 and the division of law making powers

A

contains the mechanism of resolving inconsistencies. The commonwealth will always prevail if an inconsistency occurs in an area of concurrent law making.

Should there be an inconsistency the commonwealth will prevail TO THE EXTENT OF THE INCONSISTENCY.
the section or part of the section which is inconsistent with the commonwealth will be invalid

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7
Q

list restrictions on the commonwealth parliament

A

S106/107 - guarantee of state powers
S128 - referendum (need to know regardless)
S116 - FREEDOM OF RELIGION
S117 - RIGHTS OF RESIDENTS IN STATES

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8
Q

list restrictions on the state parliament

A

S114 - RAISING MILITARY POWER
S115- COINING MONEY
S90- customs
S109 - concurrent powers (need to know regardless)

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9
Q

list chosen restrictions on commonwealth parliaments

A

S116 - freedom of religion

S117 - rights of residents in states

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10
Q

list chosen restrictions on state parliaments

A

S114 - raising military power

S115- coining money

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11
Q

S116

A

freedom of religion

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12
Q

explain S116

A

FREEDOM OF RELIGION

prevents the commonwealth parliament from legislating with respect to religion, thereby guaranteeing freedom of religion

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13
Q

explain S117

A

RIGHTS OF RESIDENTS IN STATES

prevents the residents of a state from being segregated and discriminated against

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14
Q

explain S114

A

RAISING MILITARY POWER

the states are prohibited from raising naval and military forces, as it is an exclusive power to the commonwealth

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15
Q

explain S115

A

COINING MONEY
the states are prevented from coining their own individual money or notes, as it is an exclusive power of the commonwealth

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16
Q

what are the three ways in changing the constitution

A
  1. referendum -S128
  2. decisions of the high court in cases arising over law making powers
  3. referral of power from states to create uniform of law across Australia
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17
Q

process of referendum under S128

4 separate points

A
  1. S128 outlines the procedure of changing the constitution by either deleting or inserting words (S51)
  2. The wording of the constitution can only be changed if double majority is achieved
  3. proposal must be written into legislation passed through both houses or the governor general can refer the referendum to the house who accepted to pass again a second time
  4. if proposal is accepted by people according to double majority the wording of constitution is changed after royal assent and it is proclaimed
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18
Q

list the factors affecting the likely success of referendum proposals

A
  • double majority
  • timing
  • voter conservatism
  • conflicting information
  • high cost
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19
Q

factors affecting likely success of referendum - double majority

A

the strict requirement of double majority is not easily achieved.
The majority of people across the majority of states. If majority across Australia is achieved but only majority in 2 states is achieved it will not be passed.

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20
Q

factors affecting likely success of referendum - timing

A

the timing of the referendum/referenda could contribute to lack of success.
They are often held at the same time as election due to high cost.
Voters are more likely to be concerned about the election rather than the referendum, taking focus and chance of success away

21
Q

factors affecting likely success of referendum - voter conservatism

A

voters tend to be conservative and prefer to accept the constitution, rather than making changes which could have unknown adverse affects

22
Q

factors affecting the likely success of referendum - confusing information

A

information is sent to all households and also debated between political parties in media to explain pros/cons.
this can cause confusion for voters especially the debate between opposing parties, usually leading to them answering ‘no’ against a change they do not understand

23
Q

name successful referendum and its affect on the balance

A

1967 referendum for the commonwealth power to make laws for indigenous people

24
Q

proposals for 1967 referendum

A
  1. change SECTION 51 (XX VI) to include aboriginals in the commonwealths jurisdiction to make laws for indigenous. Deleting: ‘other than the aboriginals in any state”
  2. The indigenous were also being recognised as part of the national census and a part of the population SECTION 127
25
Q

results and changes to constitution - 1967 referendum

A
  • deleted ‘other than the aboriginal race in all states” (SECTION 51 XX VI)
  • words were also deleted from section 127 “aboriginals not to be counted in reckoning population
  • SECTION 127 COMPLETLEY DELETED
26
Q

results/statistics of referendum

A
  • majority of people, across majority of states across majority of australia voted YES
  • all 6 states voted yes with majority of 90.77 % voting yes
  • vic had highest majority of 94.68 %
27
Q

1967 referendums affect on balance of power

MUST REMEMBER ALL FIVE POINTS TO RECEIVE FULL MARKS

A
  1. commonwealth give powers did not previously have.
    States originally had indigenous residential power
  2. under section 109 any commonwealth law made in regards to indigenous will now prevail over state inconsistencies - previous state laws become invalid
  3. any state law must be consistent with existing commonwealth law
  4. the commonwealth has used its new power to create laws of indigenous land management, welfare, education, native title and work schemes
  5. w/o the 1967 referendum these laws would not have been made possible.
28
Q

which sections of constitution give high court its jurisdiction ?

A

S71 + S76

29
Q

explain S71 in regards to high court jurisdiction

A

gives the high court its judicial power and courts

30
Q

explain S76 in regards to high court jurisdiction

A

gives the high court additional powers over the constitution

31
Q

how (by what actions) does the high court carry out its duties as the ‘guardian of the constitution’ ?

A
  1. interpreting the words in the constitution and giving meaning to them
  2. high court is unable to change words but by interpreting adds meaning.
    Can change division of law making powers between commonwealth and states by the decision of interpretation
32
Q

facts of roads case

A
  • S96 commonwealth may grant “financial assistance to any states on such terms and conditions as the parliament thinks fit”
  • 1926 parliament passed FEDERAL AID ROADS ACT which provides financial assistance to states but only on their terms
  • states were prepared to accept the money but not the terms
  • terms included: met with approval of commonwealth, kept in good condition with repair and maintenance
  • states did not agree as commonwealth had no legislative power over roads. Implying a power not granted in S96
33
Q

outcome of roads case

A
  • high court disagreed with states and accredited S96 with literal meaning
  • meaning commonwealth could grant financial assistance to any state ON ANY CONDITION it saw fit
  • placing balance of power with commonwealth
34
Q

how might outcome affect the division of law making powers

A
  • decision of high court affects division of powers as roads and public transport as a residual powers, however the commonwealth prevails due to decision
  • this impacts on division of law making powers as the states are stripped of their rights of roads
35
Q

facts of brislan case (1935)

A
  • S51 the constitution gave the commonwealth power to legislate on postal, telegraphic, telephonic and other like services
  • the commonwealth passed a WIRELESS TELEGRAPHY ACT 1905 requiring all owners of wireless sets (radios) to hold a licence
  • the defendant was charged with not holding a licence, however she was only broadcasting to the wireless
  • defendant challenged validity of act by broadcasting to a wireless set is its not a ‘like service’ in the context of which it was stated
  • if changes were to occur the states would have power
  • high court concluded that broadcasting is a characteristic of a broadcasting service in all forms and therefore a ‘like service’
36
Q

outcome of brislan case (1935)

A
  • high court found a broad interpretation of ‘like services’ was required to account for technological development
  • therefore, the commonwealth DID have the power to charge brislan with broadcasting to a wireless. due to it being a ‘like service’
37
Q

how has interpretation of S51 affected division of law making powers (brislan)

A
  • the commonwealth maintained the jurisdiction to legislate in areas of technological development under the interpretation of wording ‘like terms’ which include broadcasting to a wireless
  • if the high court were to have sided with brislan, residual powers would be left to the states concerning broadcasting and technological development etc.
  • the broad term ‘like services’ has allowed the commonwealth to legislate in areas including: television licensing, mass communication devices including the internet
38
Q

referral of powers - explain

A
  • S51 (XXX VII) of the constitution allows the states to refer some of their law making powers to the commonwealth
  • only one state needs to agree to refer its powers to the commonwealth
  • unclear whether the referred power will become exclusive or concurrent
  • unclear whether the states are able to revoke the referred powers.
39
Q

state example of powers

A

terrorism

40
Q

explain terrorism and referral of powers

A

the defence power in S51(VI) of the constitution allows the commonwealth to make laws on military matters.

it is generally assumed that his defence power relates to making laws for external national security nut does not extend to laws regulating internal security

41
Q

what act is used for the referral of powers - terrorism

A

amendment (terrorism) act 2003 (cth)
allowing the commonwealth to make laws regarding terrorist acts inside australia. The victorian act referring these powers was the terrorism (commonwealth powers) act 2003) (vic)

42
Q

define constitution

A

a book of rules that describes the structure of parliament and how law making power is divided between federal and state parliaments

43
Q

role of constitution with respect to law making powers

A

to determine the powers and duties of parliament and government.
The constitution determines the law making powers of both the state and federal parliaments

44
Q

Effectiveness of high court interpretation as a means of changing law making powers

A

Strengths
- a matter can be dealt with when a case is brought before the court and an injustice can be rectified
Weakness (corresponding)
- the high court can not change the words in the constitution
Strengths
- high court justices are experts in constitutional law and are therefore suited to interpreting and applying constitution to cases before court
Corresponding weakness
- the high court must wait for a relevant case to be brought before the court before it can be interpreted

45
Q

Strengths of effectiveness of referendum

A
  • the people can have their say
  • protection of smaller states (double majority protects from being dominated by larger states because they all need majority)
46
Q

Weaknesses of effectiveness of referendums

A
  • Distrust and lack of understanding caused by conflicting politicians etc
  • double majority , hard to achieve
47
Q

Effectiveness of high court interpretation as a means of changing law making powers

A

Strengths
- a matter can be dealt with when a case is brought before the court and an injustice can be rectified
Weakness (corresponding)
- the high court can not change the words in the constitution
Strengths
- high court justices are experts in constitutional law and are therefore suited to interpreting and applying constitution to cases before court
Corresponding weakness
- the high court must wait for a relevant case to be brought before the court before it can be interpreted

48
Q

Strengths of effectiveness of referendum

A
  • the people can have their say
  • protection of smaller states (double majority protects from being dominated by larger states because they all need majority)
49
Q

Weaknesses of effectiveness of referendums

A
  • Distrust and lack of understanding caused by conflicting politicians etc
  • double majority , hard to achieve

Legal 3/4 (12 decks)

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