U4AOS1 Flashcards

Question

Roach case facts

Answer 1

A 2006 Act prohibited all prisoners from voting in federal elections, instead of just prisoners serving >3 years. Vicki Lee Roach challenged this and the 2006 Act was seen as inconsistent with the system of representative democracy established by s7 and 24 (require houses of parliament to be ‘directly chosen by the people’). Could be limited for a substantial reason, and the 2004 Act was considered to be constitutionally valid, but not the 2006 one.

Answer 2

The case upheld the principle of representative government provided in s7 and 24. This is a significant restriction on the law-making power of the Cth Parl, who can’t pass a law restricting this right other than for ‘substantial reasons’. However, HCA upheld the validity of the 2004 Act, and didn’t grant universal adult suffrage. The significance was confirmed by the HCA in the 2010 case of Rowe, where it was held that the Cth cannot unnecessarily deny access to voting in Australia.

Answer 3

A referendum is the method used for changing the wording of the Australian Constitution, detailed in s128. Needs to go through three stages - Parliament (Constitution Alteration Bill), the people (vote yes or no) and governor general (royal assent). A majority of voters in the whole of Australia (including territories) must vote ‘yes’. A majority of voters in a majority of states (4 out of 6) must vote “yes”.

Answer 4

Requires the public's approval, parliament cannot do so unilaterally and Cth isn’t able to increase power in an unrestrained manner. Requirement for a majority of voters in a majority of states ensures that the views of voters in less populous states aren’t overridden by the views of more populous states. The people still need to wait for parliament to pass a Constitution Alteration Bill before a public vote. Requirement has proven so difficult that sometimes even legitimate proposed changes have not gone through (eg., simultaneous elections in 1977). Public may not understand complex details of the proposal and may just vote no in order to maintain the status quo.

Answer 5

Two proposed changes - 1. Whether indigenous people should be included in the federal census. 2. Whether Cth parl should be allowed to make laws regarding Indigenous people. This was the most successful referendum in Australia’s history. 90.8% voted yes across Australia and the majority of voters in all states voted in favour of the changes.

Answer 6

Very significant as it included the Abroiginal people in the census, a basic right that was previously denied. It expanded the law-making power of the Commonwealth. Allowed a consistent approach to law-making regarding Indigenous people across Australia, rather than states/territories having inconsistent laws. Some argue the change in division of law-making power led to Cth making laws/policies that negatively impacted indigenous people. Eg. Hindmarsh Island Bridge Act 1997 (Cth) removed protections to allow the construction of a bridge in SA. Two Indigenous women challenged this Act, arguing that s51 of the Constitution as amended by the 1967 referendum only authorised the Cth Parl to make laws benefiting Aboriginal people. Majority of HCA disagreed, saying that ‘race power’ could be used for not beneficial actions.

Answer 7

Referendums: - lobby the government to initiate or not initiate a Constitution Alteration Bill in Cth Parl, publicly support/argue for a particular side in a referendum, vote. Individuals/groups taking cases to the HCA: Need standing, process is time consuming, expensive, potentially stressful and risky.

Answer 8

Binding agreements between countries setting out terms which countries agree to follow. Governed by international law. Countries can either sign or ratify a treaty. Signing shows the country agrees with the treaty, ratifying makes it binding. Executive has power to negotiate and enter into treaties. Government must table the treaty in both houses of parl before the Cth government agrees to ratify a treaty. It is NOT an Australian law.

Answer 9

Non-binding agreements between countries. Usually set out aspirations of the parties. Likely that the HCA would hold that Cth laws which give effect to an international declaration would also fall within the external affairs power. However, it could be argued that international declarations are not binding agreements and are too vague to be transformed into domestic legislation. Cth would also still need to show the law was related to achieving declaration obligations.

Answer 10

Under s51 of the Constitution, the Cth Parl has the power to make laws in relation to external affairs. In various cases, the HCA has decided that this gives the Cth Parl the power to legislate and give effect to International agreements, even in areas of residual power. They can legislate on a residual power if the treaty obligations cover that area. S109 would apply to these laws as well. The Cth Parl can use its ‘external affairs’ power to legislate to implement treaty obligations, even in areas of residual power.

Answer 11

In 1974 Australia ratified an international treaty regarding world heritage and listed an area in TAS for protection. In 1982, the TAS parl passed an act to dam part of this area. In 1983, Cth passed an Act prohibiting construction. TAS argued the Cth Act was unconstitutional because it was in residual power areas. Cth argues valid under ‘external affairs’. HCA agreed with Cth.

Answer 12

Allowed Cth Parl to move into areas of residual law-making powers when implementing treaty obligations, increasing law making power of Cth Parl and eroding powers of the state parliaments, due to HCA’s broad interpretation of ‘external affairs’. Since this case, the interpretation has allowed Cth Parl to pass laws related to areas such as racial discrimination and human rights.

Answer 13

Multiple HCA cases held that the Cth Parl is able to legislate in areas where it has no specific constitutional power if it is giving effect to international obligations. Given this broad interpretation, and the large number of international obligations accepted by Australia, the external affairs power gives Cth Parl wide constitutional power to make laws on any subject. In Polyukhovich (1991) this meaning was further expanded to any subject that is external to Australia.

Answer 14

Legislation must give effect to the specific obligations in the international treaty, doesn’t enable Cth Parl to expand far beyond what is written in the treaty. The international agreement must be bona fide (genuine) and the legislation must not infringe constitutional implied or express rights.

U4AOS1 Flashcards

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