AOS 2 (constitution and protection of rights) Flashcards
specific powers
Powers given to Commonwealth under S51 of Constitution to “make laws for the peace, order and good government of the Commonwealth”. Most of these are concurrent powers (shared with the States) and some are exclusive powers (Commonwealth only)
concurrent powers
Concurrent powers are law-making powers which both the Commonwealth Parliament and the state Parliaments share jurisdiction (shared powers). Most of the specific powers given to the Commonwealth Parliament in s51 of the Constitution are concurrent powers.
e.g. trade, taxation, marriage
exclusive powers
An exclusive power is a power which can only be exercised by the Commonwealth Parliament. An exclusive power is a law-making power that is not shared with any other law making authority. These powers are not shared with the State parliaments.
e.g. raising an army (S114) and coining money (S115) section 51 gives those powers to comm
residual powers
Residual powers are those law-making powers left with the states at the time of federation and are not listed in the Constitution. The states have the power to make laws on areas that affect their area/state. Under S106/107 of the CC, residual powers are recognized as belonging to the states despite not being listed in the CC.
e.g. education, health
section 109
Inconsistency of laws; When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
impacts on the division of powers
e.g. the mcbain case
The STATE act stated that access to the program could be denied if the marital status requirement was not satisfied. On the other hand, Commonwealth Sex Discrimination Act 1984 makes it unlawful for a person to refuse to provide a service to another person on the grounds of the latter person’s marital status.
restrictions imposed by the Commonwealth Constitution on the law-making powers of the state parliament
general:
- states cant legislate in areas of exclusive power
- states can legislate on any power that did not exist or reside with them before federation
- cant legislate on areas that was given to people as a right in the constitution (e.g. discrimination based on state resided)
specific:
- section 109 restricts states
- section 114 raise an army
- section 115 coining money
restrictions imposed by the Commonwealth Constitution on the law-making powers of the commonwealth parliament
general:
- comm cant legislate in areas of residual power (however they have managed to by hc interpretations and referrals of power)
- comm cant legislate on areas that was giving to people as a right in the constitution (e.g. communication of political matters)
specific:
- section 116 restricts making laws on religion
- section 128 can change the constitution without a referendum
- separation of powers act as a restriction in judiciary power
“Vertical fiscal imbalance”
the Commonwealth Government raises revenues in excess of its spending responsibilities, while State governments have insufficient revenue from their own sources to finance spending responsibilities. “tied grants” under s96 to influence State policy in areas of residual power
referendum and process
A referendum is a compulsory yes/no vote on a proposed change to the wording of the commonwealth constitution s128 (can only be started in the commonwealth)
- There is a need or desire for change in the Constitution
- Draft of a Constitution Alteration Bill
- Passage of the Bill through Federal parliament
- Being passed by an absolute majority of each House
- Being passed by an absolute majority by one house, twice in three months - Proposed change is put to all voters in the form of a yes/no question within 2-6 months
- Proposed changes must satisfy what is referred to as the double majority provision.
- Royal Assent from the Governor-General
- The relevant section of the Constitution is then changed
factors affecting success of a referendum
only 8/44 referendums have succeeded.
- lack of bipartisan support
- timing of referendum, mostly held during election to save money
- voter conservatism
- double majority
- confusing information
example of referendums
indigenous people (1984) was successful. Section 51 (xxvi) states that the Commonwealth Parliament shall have the power to make laws with respect to ‘the people of any race, other than the Aboriginal race in any state, that section was deleted also section 127 stated that in counting population numbers the indigenous people were not to be counted. The Commonwealth stepped in and took responsibility for Aboriginal people, giving more law making power to the commonwealth
state debts and social services 1946: the word “benefits” does not just include financial payments but also goods and services (which has helped the Commonwealth push into areas like health and education)
high court in interpreting the constitution
high court can place restrictions on the commonwealth parliament and the state parliament through its interpretation of the constitution. It is the sole interpreter of the constitution, and acts as a ‘guard’ of the constitution. give meaning to the words in the Constitution and apply the Constitution to everyday situations
however, cant change the words, have to wait till a case is brought by someone with legal standing
two high cases interpreting the constitution
1) Tasmanian dams. 1983 The issue was whether the commonwealth gov can use the external affairs power to legislate in an area of residual power. S51, para 29 gives the com parliament the power to legislate in regards to external affairs. Tasmanian gov wanted to dam the franklin river, and com parliament used external affairs to stop, declared the area a world heritage site. High court held that the external affairs power did enable the com gov to legislate in areas while enacting obligations under international treaty. Increased commonwealth power at the expense of the state, widened the external affairs power as unlimited scope to enter to state powers as long as they showed international concern
2) Uniform tax 1942 The issue revolves around whether the commonwealth should be the sole income tax collector. Whether the commonwealth can take over income taxes as a power exclusively. S51, para 2 gives the right to levy taxation, and its a concurrent power. During ww2, commonwealth gov passed 4 acts combining state and federal income tax, declared that commonwealth taxes took priority. States challenged, high court upheld the validity. Increased commonwealth power at the expense of the state and increased commonwealth financial dominance (vertical fiscal imbalance) states effectively lost the ability to raise income tax, and allowed comm to push into areas like education and health
referring power to the comm
Section 51 subsection 37 allows the Commonwealth to make law in relation to state laws where the matter has been referred. voluntary transfer of a states’ residual power to the Commonwealth.
e.g. terrorism laws, the states referred the power of internal security (terrorism) over to the comm, allowed it to pass the Terrorism act 2003
reasons:
- collectively want uniform laws
- comm has better resources to manage the law
saw of referendum
s:
most democratic method as all Australians on electoral roll participate
states rights protected (majority of states too)
w:
very hard to achieve 8/44
state parliaments cant vote on it
costly
