Unit 3: AOS 2: The Constitution Flashcards Preview

Legal Studies Unit 3/4 > Unit 3: AOS 2: The Constitution > Flashcards

Flashcards in Unit 3: AOS 2: The Constitution Deck (50)
Loading flashcards...

What are 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 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.


What are tied grants?

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


What are examples of residual powers?

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


What are specific powers?

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.


What are specific powers (exclusive)?

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


Discuss how specific powers that have been made exclusive.

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.


What are examples of specific exclusive powers?

Defense and Coinage


What are specific powers (concurrent)?

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.


What are example of specific concurrent powers?

Taxation and marriage.


Discuss the impact of S109

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.


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

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.


Explain restrictions on state Parliament

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.


Give some examples on restrictions of state parliament

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.


Explain restrictions on Commonwealth Parliament

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.


What are examples of restrictions on Commonwealth Parliament?

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.


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

-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.


Why do the words in the Constitution need to change?

To keep up with the changes in societies values


What are the three stages of changing under section 128

Governor General


Role of Parliament in changing the Constitution under S128

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.


Role of the People in changing the Constitution under S128

-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.


What is a double majority provision?

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


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

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.


Factors affecting the likely success of a referendum: Timing

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.


Factors affecting the likely success of a referendum: Double majority

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.


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

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.


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

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.


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

-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.


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

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.


Proposals in the 1967 referendum

-To include indigenous Australians in the national census
-To allow the Commonwealth to make laws for the Aboriginal people.


The outcome of the 1967 referendum

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