Constitutional change Flashcards
Referendums
Set out in section 128, change the wording of the Constitution, haven’t caused a wide-ranging change, has little impact on shift of power from States to the Commonwealth
Referendum process
Directly involves citizens (direct democracy)
Successful referendums (4)
1967- Altered section 51 (xxvi) and removed section 127 allowing for the Commonwealth to make laws concerning Aboriginal and Torres Strait Islander people and allowed them to be counted in the census, 1977- Altered section 15 ensuring that casual senate vacancies were filled by someone of the same party, 1977- Altered section 128 allowing for Territories to be counted in the national vote for referendums, 1977- Altered section 72 enforcing that judges must retire at the age of 70
Successful referendum criteria (5)
Minor change, Bipartisan support, Simple question, Benefits the States of the People, Reflects commonly held values
Failing referendum criteria and example
Major change, Partisan division, Complex division, Benefits the Commonwealth of government, Controversial in nature, Example- 1999 referendum to make Australia a republic
High court decisions
Section 76, Don’t change the words of the constitution, Can alter the balance of power between the States and Commonwealth, Most important method of changing the constitution due to the difficulty of passing a referendum, Have mainly extended the Commonwealths financial powers, Have protected the States and extended other powers such as the external affairs power and the corporations power
High Court phases
Intentionalist, legalist (literalist), neutral, activist
Phase 1- intentionalist
1903-1920, Narrow view of the constitutions provisions, Judgements restricted the Commonwealths powers rather than enlarging them, Cases- railway servants, Peterwald’s
Phase 2- legalist (literalist)
1920-1942, Doctrine of legalism- interpretation referred to the plain meaning of the words without consideration of outside sources and implications, Cases- engineers, Uniform tax
Phase 3- neutral
1943-1983, Maintained principle of broad interpretations, No major extensions of federal power where made, Give and take between State and federal power, Cases- Uniform tax (1957), communist party
Phase 4- activist
1983-1996, Emphasis of interpretation was placed upon application of the constitution in contemporary society, Significant expansion of Commonwealth powers, Cases- Koowarta, Tasmanian Dams, Mabo
Impact of the high court
Most significant agent of informal constitutional change, Altered the federal balance of power in favour of the Commonwealth, Discovery of implied rights, Vertical fiscal imbalance
Referral powers
Allows states to transfer matters under their responsibility to the Commonwealth (s51 xxxvii), Both concurrent and residual powers can be referred however reverse transfer is not allowed, Must be voluntary and initiated by States, Not all states have to refer a power (E.g WA hasn’t referred family law, all states referred criminal law after September 11
Impact of referral powers
Involve minor matters (little significance), Can only be initiated by the States, States want to preserve coordinate federalism as was the intent of the founding fathers
Unchallenged legislation
Commonwealth can pass laws that are outside its constitutional powers (Act ultra vires) however nothing can be done unless it is brought to the High Court by the States, Eg- legislation to create the Commonwealth Scientific and Industrial Research Organisation (CSIRO) in 1941, caused changes by adding another head of power to Commonwealth, however modernises the constitution (CSIRO couldn’t have been envisioned in 1901)
