Flashcards in Unit 3 AOS2a - Chapter 3: The Constitution Deck (96):
A federation involves separate entities coming together to form one single body, often for political reasons. At the time of federation the separate colonies became states with their own parliaments and a central body, the Commonwealth Parliament, was formed. The Constitution is the formal document by which this process of federation was achieved.
What are the reasons for federation?
. defence – A central body was needed for the defence of Australia, which was a particular concern because of the domination of European colonial powers in the Pacific and the closeness of New Guinea, where Germany possessed large areas of land.
. immigration – Laws were needed to regulate the entry of immigrants into Australia.
. industrial disputes – Industrial disputes had begun to spread across colonies and extend
from one colony to another.
. tariffs – Uniform laws relating to importation of goods and tariffs were required to overcome
the problem of some colonies allowing freer movement of goods than others.
. uniform laws – As the population grew it was becoming necessary to have uniform laws on issues such as banking, currency, marriage and divorce that would be administratively more convenient and provide equal treatment for all Australians.
What is Australia's political system based on?
What is a constitution?
A constitution is a set of rules declaring the nature, functions and limits of government.
The Commonwealth of Australia Constitution Act 1900 (UK), which came into force on 1 January 1901 is a set of rules or principles guiding the way the nation is governed. States have their own separate constitutions.
What is the role of the Commonwealth Constitution?
The role of a constitution is to determine the powers and duties of the government. Some constitutions guarantee certain rights to the people of the country.
. facilitate the division of law-making powers by setting out what the Commonwealth Parliament can do with respect to law-making; that is, the types of laws that can be passed by the Commonwealth Parliament – the states can make laws in any area not mentioned in the Constitution or not specifically made exclusive to the Commonwealth Parliament
. provide a legal framework for the creation of the Commonwealth Parliament and outline the structure of the Commonwealth Parliament, including the composition of the House of Representatives and the Senate
. provide for direct election of the members of the House of Representatives and the Senate by the people of the Commonwealth of Australia
. give the High Court the power to interpret the Constitution if the need arises.
What else does the Commonwealth Constitution do?
The Commonwealth Constitution does not contain a bill of rights.
It does, however:
. Provide protection for a limited number of rights (such as the right to freedom of religion).
. Protect Australians in their dealings with the Commonwealth Parliament (by placing restrictions on the law-making powers of the Commonwealth Parliament and making provision for the High Court of Australia to act as the final arbiter of the power of the Commonwealth).
. Provides for representative government and responsible government (this means that if a government is not protecting the rights of its citizens, the citizens can vote the government out of office at the next election).
How many chapters is the constitution divided into?
Chapter I The Parliament
Part I – General
Part II – The Senate
Part III – The House of Representatives
Part IV – Both Houses of the Parliament
Part V – Powers of the Parliament
Chapter II The Executive Government
Chapter III The Judicature
Chapter IV Finance and Trade
Chapter V The States
Chapter VI New States
Chapter VII Miscellaneous
Chapter VIII Alteration of the Constitution
Since the Commonwealth Constitution Act 1900 (UK) came into force on the 1st of January 1901, what has happened?
Since that time, Australia has been a federation, governed by the Commonwealth Parliament (also referred to as the federal parliament) and six state parliaments. The Northern Territory and the Australian Capital Territory come under the jurisdiction of the Commonwealth Parliament, although both have now gained self-government in many areas of law-making.
What are the law-making powers of the state parliaments and the Commonwealth Parliament divided into?
. Residual Powers - those law-making powers left with the states at the time of federation
. and Specific Powers - those law-making powers given to the Commonwealth Parliament at the time of federation.
Explain specific/enumerated powers.
Specific powers can be:
. exclusive powers - only the Commonwealth Parliament can create laws in these areas (given to the Commonwealth Parliament under S51 of the Constitution)
. or concurrent powers - both the Commonwealth Parliament and
state parliaments can create laws in these areas as they share jurisdiction (also given under S51)
Explain residual powers
Residual law-making powers are those left with the states at the time of federation and not listed in the Constitution. They are areas which cannot be touched by the commonwealth as they remain with the states.
Eg. Public transport, law enforcement and health.
What sections of the Constitution give states rights?
S106 The constitution of each state of the Commonwealth shall continue ... until altered.
S107 Every power of the states shall continue unless exclusively given to the Commonwealth or withdrawn from the state.
S108 Every law in force in the states shall remain in force.
S121 New states may be admitted or established – The parliament may admit to the Commonwealth or establish new states, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of Parliament, as it thinks fit.
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.
Whilst the commonwealth parliament has no right to make laws in areas of residual power, tied grants have become a way for the commonwealth parliament to have more control.
Explain exclusive powers?
Exclusive powers are a type of specific power. An exclusive power is a power which can only be exercised (that is, exclusively or solely) by the Commonwealth Parliament.
Eg. Naval and military forces, coining money, & naturalisation and aliens.
Exclusive powers and how they are made exclusive.
NAVAL AND MILITARY FORCES
S51(vi) - gives power to the Commonwealth Parliament to make laws relating to naval and military forces.
S114 - says that the states shall not raise naval or military forces, making this exclusive to the Commonwealth Parliament.
S51(xii) - gives power to the Commonwealth Parliament over currency, coinage and legal tender.
S115 - says that the states shall not coin money. Coining money is therefore an exclusive power of the Commonwealth.
What are the exclusive by nature powers in the Constitution?
. S51(iv) – borrowing money on the public credit of the Commonwealth
. S51(xix) – naturalisation (becoming an Australian citizen)
. S51(xxv) – recognition throughout the Commonwealth of state laws and records
. S51(xxxii) – control of railways for defence purposes
. S51(xxxiii) – acquisition of state railways with the consent of the state concerned.
Exclusive powers contained in s52.
The high court s71.
The judicial power of the Commonwealth is vested in the High Court of Australia and in such other federal courts as the Commonwealth Parliament creates.
Explain concurrent powers.
These are law-making powers which are shared by the commonwealth parliament and the states parliaments' jurisdictions. Section 109 contains a mechanism of resolving any inconsistencies between legislation in commonwealth and states parliaments in areas of concurrent law.
Eg. Taxation, marriage and trade.
Explain the impact of section 109.
Section 109 of the Constitution provides a mechanism to resolve conflict and inconsistencies between state and Commonwealth laws that can sometimes arise in the area of concurrent powers.
Should there be an inconsistency between commonwealth legislation and state legislation then the Commonwealth legislation shall prevail to the extent of the inconsistency. Meaning, the section or part of the state legislation that is inconsistent with the commonwealth legislations shall be invalid.
Why is section 109 not relevant to inconsistencies between commonwealth and territory laws?
Marital status as an area of inconsistency under section 109.
Inconsistency and John McBain v. The State of Victoria & Ors 
. The Victorian Infertility Treatment Act 1995 was passed to establish the Victorian Infertility Treatment Authority and the in-vitro fertilisation program.
. S8 of act provided that a single woman wasn't allowed to receive treatment (had to be married or in de-facto relationship)
. Dr John McBain saw that he would have to break a Commonwealth law in order to abide by this Victorian Act.
. Because S22 of the 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.
. When Dr John McBain realised this inconsistency he was required to show that a specific patient was being denied the service in order to argue the inconsistency.
. In this case Leesa Meldrum was that patient
. When they went to court it was established that under the Commonwealth Act it was unlawful to refuse to provide the IVF service on the grounds that the person is not married or living in a de
. Section 109 had kicked in and s8 of the Infertility Treatment Act became invalid.
What are the restrictions by the commonwealth constitution on the law-making powers of the state parliaments?
. Section 114 raising military forces (exclusive power)*
. Section 115 coining money (exclusive power) *
. Section 90 customs (exclusive power)
. Section 109 concurrent powers
. Section 92 trade within the commonwealth must be free
* 2 I've decided to remember
Explain the following restriction on state law-making powers: section 114
Section 114 Raising military forces (exclusive power) - this power states that raising military forces is an exclusive power, meaning states are prohibited from using from raising naval and military forces. This prevents civil wars from occurring.
Explain the following restriction on state law-making powers: section 109
Section 109 Concurrent powers - This section sets out that in areas of concurrent power inconsistencies between state and federal legislation result in federal laws prevailing (to the extent of the inconsistency). This means the state law is consider invalid or inoperable.
What are the restrictions by the commonwealth constitution on the law-making powers of the Commonwealth parliament?
. Sections 106, 107 and 108 Guarantee of state powers
. Section 116 Freedom of religion*
. Section 117 Rights if residents in states
. Section 128 Changing the constitution*
. Principle of separation of powers (cth can not form a body that combines judicial and legislative powers)
* 2 I've decided to remember
Explain the following restriction on commonwealth law-making powers: section 116
Section 116 Freedom of religion - This prevents the Commonwealth parliament from legislating with respect to religion. This therefore guarantees the freedom of religion. However, religious practices must also conform to the law.
Explain the following restriction on commonwealth law-making powers: section 128
Section 128 Changing the constitution - This section provides a mechanism for changing the Constitution. Commonwealth parliament is not able to change the constitution as it pleases, it needs to hold referendums so the people of Australia have consent in regards to any changes.
What are some high court decisions that have resulted in restrictions on the law making power of the commonwealth parliament?
. Freedom of political communication: The freedom of political communication was guaranteed under a High Court decision. The Commonwealth is therefore unable to make laws that restrict this freedom. The Political Broadcasts and Political Disclosures Act 1991 (Cth) sought to ban political advertising on radio and television during federal and state election campaigns. This ban was challenged in the High Court and the High Court found that there was an implied right to freedom of political communication in the Constitution and therefore the Commonwealth Act was found to be invalid.
. Voting for representative government: The High Court, in Roach v. Electoral Commissioner (2007), found that the Commonwealth Constitution provides for representative government, chosen directly by the people. The Commonwealth Parliament can decide how elections are to take place and who is allowed to vote but, according to the High Court, there are restrictions placed on the Commonwealth Parliament on how this is done because the people’s right to vote is critical to representative government. Eg. prisoners who are serving a sentence of three years or longer can be denied the right to vote, but not all prisoners.
What are the restrictions you've decided to remember?
. Section 109
. Section 114
. Section 116
. Section 128
What are the ways in which the Constitution and the division of law-making powers can be changed?
. Referendum (changes the words in the constitution)
. High Court interpretation (changes the meanings of words in the constitution)
. Referral of powers
How does section 128 help change the words of the constitution?
When the Commonwealth Constitution Act 1900 (UK) was drafted, it recognised that times would change and that the Constitution would need to alter to keep up with changing attitudes. Section 128 of the Constitution gives the mechanism for change, but it has proved to be a difficult process.
Under section 128 of the Constitution, what must happen in order for a change in the wording in the constitution?
The people must be asked to vote for a change in a referendum.
What is a referendum?
A referendum is a compulsory vote on a proposed change to the wording of the commonwealth constitution. A successful referendum is the only way the wording of the constitution can be changed.
Words can either be inserted (s51 ssxxiiiA) or deleted (s51 ssxxvi)
What is the strict formula a referendum must follow in order to be successful?
S128 COME BACK TEXTBOOK AND NOTES
Also summary booklet in revision section
What is the impact of a successful referendum?
The law-making power of the states and the commonwealth may be altered. 4 out of the 8 successful referendums have altered the division of law-making power between the states and the commonwealth (state debts 1910, state debts 1928, social services 1946 and indigenous people 1967).
In all these instances the commonwealth parliament has gained more power to legislate in an area that was previously left with the states.
What are the three stages of changing the Commonwealth Constitution under section 128?
2. The people
3. The governor-general
Explain the following stage of changing the constitution under section 128: Parliament
Any proposed change to the Constitution must first be passed by the Commonwealth Parliament.
. A Bill is prepared which sets out the proposed alteration to the Constitution.
. It is introduced into the Commonwealth Parliament.
. The Bill can be passed by both houses, or one house twice.
. It must be passed by an absolute majority (over 50 per cent of the house).
. If either house passes the proposed change and the other house rejects it, or requires amendments that are not acceptable to the first house, after a period of three months it can be passed through the first house again.
. If it is rejected a second time by the second house, the governor-general may still submit the proposed change to the people.
Explain the following stage of changing the constitution under section 128: The people
The Constitution can only be changed after a successful referendum, which is a compulsory vote on a proposed change to the wording of the Commonwealth Constitution.
. The referendum outlining the proposed change is put to the people not less than two months, and not more than six months, after it has been passed by both houses of the Commonwealth Parliament, or one house twice.
. All of those electors who are required to vote for the election of members of the House of Representatives in each state and territory must vote on the referendum.
. Before the referendum being put to the people, the Australian Electoral Commission sends information to every household that explains the proposed change, and provides arguments for and against the proposed change.
. Double majority provision
Explain the double majority provision.
In the referendum, the voters are required to answer ‘yes’ or ‘no’ to the question asked. For the referendum to be successful, each referendum question must satisfy the double majority provision, being:
. A majority of voters in the whole of Australia (including the territories) must vote ‘yes’. AND
. A majority of voters in a majority of states must vote ‘yes’ to the proposed change – that is, the referendum must be approved by a majority of voters in at least four out of the six states before it is accepted. The territories are not counted under this provision. This provision protects the smaller states from being dominated by the larger, more populated states.
Explain the following stage of changing the constitution under section 128: The governor-general
If the proposed change receives a ‘yes’ vote from a majority of voters in a majority of the states as well as a majority of all electors, it is then presented to the governor-general for royal assent.
Outline the whole successful referendum process.
. A bill is prepared which sets out the proposed changes
. The bill is introduced into the Commonwealth parliament
. It must be passed by both house or one house twice
. Governor-general can submit question to voters (even if it hasn't been accepted by both houses)
. Australian electoral commission sends information to every household that explains the proposed change
. The change is agreed to by majority of voters from a majority of states (double majority provision)
. Also passes by a majority of voters in any affected states
. The passed referendum is presented to the governor-general for royal assent
. The constitution is changed
What are the 4 successful referendums which increased the division of law-making power of the commonwealth?
. State debts 1910 – amended S105 to extend the power of the Commonwealth Parliament to take over state debts incurred at any time, not just those in existence at the time of federation.
. State debts 1928 – inserted S105A to give the Commonwealth Parliament power to set up a Loan
Council responsible for allocating monies borrowed by state and Commonwealth governments.
. Social services 1946 – inserted S51(xxiiiA) to extend the Commonwealth Parliament’s powers in relation to social services, to include maternity allowances, widow’s pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services, benefits to students and family allowances.
. Indigenous people 1967 – amended S51(xxvi) to enable the Commonwealth to enact laws for Indigenous people; deleted S127 and thereby removed the prohibition against counting Indigenous people in population counts used to allocate the number of seats per state for the House of Representatives and per capita Commonwealth grants.
Which successful referendum have you decided to know?
The 1967 referendum in relation to Indigenous people (Constitution Alteration [Aboriginals] Bill 1967).
It was approved by 6 states and received 90.77% yes votes.
Explain the Constitution Alteration [Aboriginals] Bill 1967.
In 1967, the then prime minister Harold Holt’s Liberal Government staged a referendum on whether the Commonwealth Parliament should have powers in respect to Indigenous people. Before this change to the Constitution all Indigenous issues had been left with the states because they were deemed to have more specialised knowledge
What did the referendum regarding indigenous people seek to do?
This proposal sought to remove any ground for the belief that the Constitution discriminated against people of the Aboriginal race, and, at the same time, to make it possible for the Commonwealth Parliament to enact special laws for these people.
The questions put to the people were:
. whether Indigenous people should be included in the federal census and
. whether the federal government should be allowed to make policies in respect of them.
The proposal was carried.
What did the 1967 referendum do?
This referendum gave the Commonwealth Parliament the power to legislate for Indigenous people in the states and to include them in national censuses. This amendment altered S51(xxvi) of the Constitution and deleted S127.
What were the changes after the successful1967 referendum?
S51(xxvi) The people of any race, *other than the aboriginal race in any State* for whom it is deemed necessary to make special laws;
*S127 Aborigines not to be counted in reckoning population
In reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.*
Section 127 repealed by the Constitution Alteration (Aboriginals) Act 1967 (Cth)
* = deleted
What are the reasons for the 1967 referendum?
Until 1967, the Constitution specifically denied the Commonwealth the power to legislate for Indigenous people in the states or to include them in national censuses. This was regarded as unjust for Indigenous people and a barrier to effective policy-making for the Commonwealth Parliament.
The 1967 alteration sought to remove these barriers from the Constitution.
Explain the law-making power to the commonwealth parliament as a result of the 1967 referendum.
The amendment allowed the Commonwealth Parliament to move into an area that was previously denied it under the Constitution. An area of residual power became a concurrent power. It gave the Commonwealth the opportunity to become more involved in dealing with Indigenous people and their needs. The Commonwealth was also able to direct government spending towards Indigenous affairs.
This eventually led to the passing of the Native Title Act 1993 (Cth).
What was the effect of the 1967 referendum?
This referendum led the way for changes in the way Indigenous people were treated and the financial assistance they received.
. The referendum did not give indigenous people the right to vote
. The referendum did not give indigenous people citizenship
What are factors affecting the likely success of referendum proposals?
Since federation there has been 44 proposals to change the constitution with only 8 put of the 44 being successful. Of the 8 successful proposals, 4 have altered the division of law making power.
. Double majority*
. Lack of bipartisan support*
. Confusing information
. Voter conservatism*
. Opposition in the community
. Erosion of states' rights
. High cost of holding a referendum*
* the four I'm going to remember
Explain the following factor which affects the likely success of referendum proposals: double majority
The double majority provision is quite a difficult requirement too fulfil in order for a successful referendum to occur. As it involves a majority of voters in the whole of Australia as well as a majority of voters in a majority of states voting 'yes' to a proposed change to the constitution. The requirements are quite difficult to adhere to, so as a result it is quite hard to pass proposed changes to the constitution.
Explain the following factor which affects the likely success of referendum proposals: lack of bipartisan support
The proposed changes most likely to succeed are those that are supported by both major parties (bipartisan support) and which cover issues the voting public can relate to. If the opposition political party is against the proposed changes, the information from both parties can become confusing. A referendum is democracy at work where the people have their say. Both major political parties have been unable to resist the temptation of trying to take political advantage in relation to any proposed changes, without proper consideration of the best outcome for the Constitution and the Australian system of government.
Lack of bipartisan support can be detrimental if the party proposing the bill doesn't have a majority of seats in both houses. (Eg. hostile senate)
Explain the following factor which affects the likely success of referendum proposals: voter conservation
Voters tend to accept the constitution as it is instead of changing it because it could result in unknown adverse effects. Eg. 1999 referendum (to become a republic) was rejected because people weren't sure how this change would affect their lives.
Explain the following factor which affects the likely success of referendum proposals: high cost of holding a referendum
Due to the high cost of holding a referendum, there isn't a lot of incentive to hold one unless there is strong belief that it will be successful. Furthermore there are alternate ways if achieving the same result.
eg. the proposal in 1996 to put a referendum to the people to give power to the Commonwealth Parliament to make laws on the ownership of guns had support from both major parties and therefore it had a very good chance of success. However, the expense of holding a referendum was avoided by the states agreeing to implement uniform restrictions on gun ownership.
What is the difference between a referendum and referenda?
Referenda = proposal
Referendum = procedure
What are some suggested future referendums?
. Constitutional recognition of Indigenous Australians
. Constitutional recognition of local government
Do I make flash cards explaining these suggested future referendums?
What are the strengths of referendums as a means of changing law-making powers?
. The people can have their say
. Protection of smaller states
. Protection of the Constitution
. One house can vote for a change twice for a referendum to be put to the people
. Compulsory vote
. Change in the division of law-making powers
Explain the following strengths of referendums as a means of changing law-making powers: the people can have a say, protection of smaller states and protection of the constitution
. The people can have their say – The Constitution can only be changed if a majority of the electors in Australia and a majority of electors in a majority of states agree to the change.
. Protection of the 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 protects the Constitution from changes being proposed that have not been thoroughly considered and do not have overwhelming support.
Explain the following strengths of referendums as a means of changing law-making powers: one house can vote for a change twice, compulsory vote and change in the division of law-making powers.
. One house can vote for a change twice for a referendum to be put to the people – A change to the Constitution, introduced by the Commonwealth Government, can be put to the people even if an opposition-strong Senate does not agree to it.
. Compulsory vote – The views of the community as a whole are more likely to be represented in a referendum because voting is compulsory.
. Change in the division of law-making powers – Referendums are introduced by the Commonwealth Government and are therefore aimed at moving power from the states to the Commonwealth.
What are the weaknesses of referendums as a means of changing law-making powers?
. Distrust and lack of understanding
. Double majority
. Bipartisan support
. States' lack of power
Explain the following weaknesses of referendums as a means of changing law-making powers: distrust and lack of understanding, double majority and conservative.
. 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 this. While 13 of the 44 referendum proposals received the support of a majority of Australian voters overall, five of these did not satisfy the majority of voters in a majority of states provision.
. Conservative – Many changes 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 to the Constitution. Voters are less willing to vote ‘yes’ to major changes.
Explain the following weaknesses of referendums as a means of changing law-making powers: bipartisan support, timing, costly and states' lack of power.
. Bipartisan support – A referendum that does not have bipartisan support is unlikely to succeed. Voters generally vote according to their political preferences and the advice of their political party.
. Timing – The focus of the referendum is lost to some extent when put to the people at the same time as an election.
. Costly – it is very costly to put a referendum to the people. The cost of the 1999 referendum was $66 820 894.
. States’ lack of power – The only action the states can take to stop the movement of power as a result of a referendum is to lobby strongly against the referendum and encourage the voters in their state to vote ‘no’.
Explain the High Court.
The High Court first sat in 1903. It was established under S71 of the Commonwealth of Australia Constitution Act 1900. Section 76 gives the Commonwealth Parliament the power to establish the High Court with the jurisdiction to hear disputes arising under the Constitution or involving its interpretation.
The High Court is seen as the 'guardian of the constitution' as it determines its day-to-day operations. The High Court can do this by interpreting the words in the constitution and giving meaning to them.
How can the High Court change the Constitution?
The High Court cannot change the wording of the Constitution but it can change the way words in the Constitution are interpreted. Originally the High Court interpreted the Constitution in a conservative manner (interpreting the words strictly).
The High Court is unable to change the wording of the constitution directly by interpreting the constitution. Instead it added meaning to it and can change the division of law-making powers between the commonwealth and the states.
How can the High Court change the division of law making power?
Whenever the High Court is called on to interpret any section or word, the interpretation adds meaning to the Constitution and can change the division of law- making powers between the states and the Commonwealth. This affects the law-making powers of state and Commonwealth parliaments. In most instances High Court decisions have led to a shift of law-making power from the states to the Commonwealth.
How do disputes in the High Court generally arise?
Disputes generally arise because a state parliament or the Commonwealth Parliament has passed an Act thought to be outside its constitutional power. Individuals or groups can challenge the Act in the High Court if they think the Act is legislating in areas outside the power of the particular parliament, and they are affected by that Act. A state parliament can launch a challenge if it thinks the Commonwealth Parliament has gone outside its law-making powers; the Commonwealth Parliament can launch a challenge against a state parliament if it thinks that state parliament has gone outside its powers.
What is the role of the High Court in interpreting the Commonwealth Constitution?
. To act as guardian of the Constitution
. To keep the Constitution up to date
. To act as a check and balance on any injustices that maybe arise or any abuse if power
. To give meaning to the words in the constitution and apply the constitution to everyday situations
Explain the following role of the constitution in interpreting the Commonwealth constitution: to act as a guardian of the constitution.
It does this by influencing the day-to-day application of the Constitution and ensuring that it remains relevant to the Australian people. The High Court interprets the words of the Constitution and gives meaning to them.
Explain the following role of the constitution in interpreting the Commonwealth constitution: to keep the constitution up to date.
The need for the High Court to interpret words within the Constitution arises from changes that occur in society, such as changes in attitude, changes in technology and changes in community standards. When the Constitution was first written there was no mention of law-making powers in relation to radios and televisions (as they weren't invented yet). The words in the constitution therefore had to be interpreted to include this technology.
Explain the following role of the constitution in interpreting the Commonwealth constitution: to act as a check and balance on any injustices that may arise or any abuse if power.
Individuals, groups, state bodies and Commonwealth bodies can bring a matter to the High Court for a ruling to be made on whether a new law is constitutional. This can only be done by a party with standing; that is, by a person or group that is directly affected by the law being challenged. It is, however, expensive to bring a case before the High Court.
Explain the following role of the constitution in interpreting the Commonwealth constitution: to give meaning to the words in the constitution and apply the constitution to everyday situations.
When a case is brought to the High Court, the court needs to give meaning to the words in the Constitution and apply the words to the case. The High Court must listen to the facts of the case and decide whether an Act that has been passed is unconstitutional. That is, the High Court will either confirm the right of the law-maker to make the law or deny that right.
The influence of the High Court of Australia on the Constitution. SHEET IN NOTES DATED 21/March
What are the strengths of High Court interpretations as a means of changing law-making powers?
. A matter can be dealt with when a case is brought before the court and an injustice can be rectified.
. The High Court justices are experts in constitutional law and are therefore very suited to interpreting the words in the Constitution and applying the Constitution to the case before the court.
. The High Court can act as a check against any abuse of power by the states or the Commonwealth Parliament.
. The High Court can keep the Constitution relevant and up to date by interpreting the words in the Constitution.
What are the weaknesses of High Court interpretations as a means of changing law-making powers?
. The High Court cannot change the words in the Constitution.
. The High Court must wait for a relevant case to be brought before the courts before it can interpret the words in the Constitution.
. The party bringing the case must have standing.
. It is expensive to bring a case to the High Court.
. The High Court may be conservative in its interpretation of the Constitution and therefore changes in interpretation may not be made.
. The decision in a case brought before the High Court may depend on the composition of the High Court. Some justices are more conservative in their approach to interpreting the Constitution.
What cases show the significance of the interpretation of the commonwealth constitution on the division of law-making power between state and commonwealth parliaments?
. Franklin dam case
. Roads case*
* = 2 I've decided to look at
Describe the Brislan case 1935.
R v. Brislan (1935)
. Section 51(v) of the Constitution gave the Commonwealth power to legislate on postal, telegraphic, telephonic and other like services.
. The Commonwealth Parliament had passed the Wireless Telegraphy Act 1905 (Cth) requiring all owners of wireless sets (radios) to hold a licence.
. The defendant was charged with not holding a licence for her wireless receiving set.
. The defendant challenged the validity of the Commonwealth Wireless Telegraphy Act 1905 in the High Court, stating that broadcasting to a wireless set is NOT a service which the commonwealth can legislate.
. This is because a wireless set was not mentioned in the Constitution and did not fit within S51(v).
. Therefore, the defendant argued that the section of the Wireless Telegraphy Act requiring people who had a wireless set to have a licence was invalid.
What was the decision for the Brislan case?
. The High Court found that a broad interpretation of 'like services' was required to account for technological development overtime.
. They therefore found that the commonwealth did have the power to take people owning a wireless as a 'like service'.
. By extension, over time this has meant that the commonwealth has been able to levy taxes in the areas of television licensing and mass communication devices including the Internet.
What was the impact of the decision from the Brislan case?
. The decision meant that the Commonwealth had moved into an area of law-making that was a residual power as broadcasting to wireless sets was not mentioned in the Constitution.
. This resulted in a shift in the division of law-making powers from the states to the Commonwealth.
Describe the roads case.
Victoria V. Commonwealth (1926) (Roads Case)
. This case arose due to the questioning of tied grants.
. This is because the commonwealth parliament offered to grant financial assistance (through the Federal Aid (Roads) Act 1926 (Cth)) to the states as long as they were prepared to fulfil a number of conditions.
. This conditions prescribed the types of roads to be built and the maintenance arrangements that the money had to go towards.
. The Victorian parliament was happy to accept financial assistance from the commonwealth, but argued that the commonwealth should not be able to dictate how to spend the money in areas which they don't have specific power over.
. The Victorian parliament instead wanted an unconditional grant, so the matter was taken to the High Court.
. It was argued that the commonwealth parliament has no legislative power over road construction and that it was not within the meaning of s96.
What was the decision for the roads case?
. The High Court confirmed the right of the commonwealth parliament to make tied grants as it failed to agree with the states contentions.
. According to section 96 of the commonwealth constitution the commonwealth parliament "may grant financial assistance to any state on such terms as the parliament thinks fit."
. The high court interpreted this very literally.
. Therefore it was confirmed that the commonwealth parliament could grant financial assistance to any states on any condition it saw fit.
What was the impact of the decision from the roads case?
The commonwealth gained power to give grants for specific purposes. This resulted in them having the power to give money to the states, must tell them how this could be spent.
Meaning they had the ability to control residual areas of the law.
What is the referral of law-making powers?
This involves the states agreeing to hand over an area of power to the Commonwealth. Under section 51 (xxxvii) of the constitution, the commonwealth has control over any powers referred to it by the states. This may occur when the states find there is an area of law-making that would be better under Commonwealth jurisdiction because the law needs to be uniform across the country. However, the states have generally been reluctant to hand over any of their powers to the Commonwealth Parliament.
Only one state needs to agree to this referral of powers, however that power can only operate in those states that have referred their power to the Commonwealth.
What is the impact of the referal of law making powers?
There is a change in the division of powers between the states and the Commonwealth in favour of the Commonwealth.
What remains unclear about the referall of powers?
It is unclear whether a referred law becomes an exclusive power of the commonwealth or whether it becomes a concurrent power. It is also unclear whether states can revoke their referral of power, as no state has tried to do so as of yet.
What are some areas that have been referred to the commonwealth?
. Ex-nuptial children*
. Property and financial matters of de facto couples
. Murray-darling basin
. Workplace relations
. Business names
* = 1 referall of powers I've decided to look at
What is an example of the referral of powers?
Ex-nuptial children - the constitution gives the commonwealth parliament the power to make legislation in matters of marriage, divorce and matrimonial causes. Whilst the power to legislate in relation to custody battles for children ex-nuptial children is not included.
The states recognised this inconsistency and gave their power to the commonwealth to resolve custody disputes involving ex-nuptial children.
The Vic act referring the power to Cth: Commonwealth Powers [Family Law - children] Act 1986 [Vic.]
Cth act implementing referral of power: Family Law [Amendment] Act 1987 [Cth]
What did the referral of power with regards to ex-nuptial children do?
It did not change the Constitution, but since the referral of power the Commonwealth Parliament has had the power to legislate in relation to ex-nuptial children, thereby bringing them under the jurisdiction of the Family Court (a federal court).
What are the strengths of referring power as a means of changing law-making powers?
. The states are able to discuss the issue thoroughly and decide which law-making powers are to be referred to the Commonwealth.
. The Commonwealth is able to make laws for the benefit of the whole country in areas not originally given to the states under the Commonwealth Constitution.
. It is difficult to get the states to pass uniform laws on a particular issue. There are likely to be small differences. However, if the power has been referred to the Commonwealth, then the Commonwealth Parliament is able to pass one law that affects the whole country.
What are the weaknesses of referring power as a means of changing law-making powers?
. States may find that it would have been better for them to keep control of the area of law that has been referred to the Commonwealth.
. The states can agree to pass uniform laws without losing their law-making powers.
. It is another way of centralising law-making and reducing the law- making powers of the states.
How can the commonwealth influence the states in areas of residual power?
. Financial dominance
. Tied grants
. The right to use money
. Unchallenged legislation
What is financial dominance?
The Commonwealth can use its financial dominance to gain
support from the states. Through High Court decisions the Commonwealth has gained greater power in the area of taxation. The main taxation revenue is from income tax (a Commonwealth tax). The Commonwealth gained even greater financial power in 2000 when the Goods and Services Tax (GST) was introduced. The states rely on the Commonwealth for money, although they are able to levy some taxes. As a consequence of this the Commonwealth is able to exert influence over the states.
What are tied grants?
The Commonwealth can use its power under S96 to give tied grants to the states. Section 96 gives the Commonwealth Parliament the right to ‘grant financial assistance to any state on such terms and conditions as the Parliament thinks fit’.
What is the right to use money?
Section 81 gives the right to use money for purposes of the Commonwealth and subject to the charges and liabilities imposed by the Constitution. This right has been used by the Commonwealth Parliament to influence areas of state power.