Unit 4 Outcome 1

Question 1

Exclusive Powers (+ 3 examples)

Answer 1

Law-making powers granted only to the commonwealth.
State governments are not able to pass laws on these topics

Examples:
- Customs and Excise Duties (Section 90)
- Control of the armed forces (Section 114)
- Currency (Section 115)

Question 2

Concurrent Powers (+ 3 examples)

Answer 2

Law-making powers granted to the commonwealth, that are not exclusive to the commonwealth, and thus are shared with state parliaments

Examples:
- Marriage and Divorce
- Taxation
- Trade with other nations

Question 3

Residual Power (+ 3 examples)

Answer 3

Law-making powers not granted to the Commonwealth Power. They are purely the responsibility of the states.

Examples:
- Health
- Education
- Police

Question 4

Section 109 (text in the constitution)

Answer 4

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

Question 5

Section 109 (things to note x4)

Answer 5

• ‘to the extent of the inconsistency’ - only sections that directly clash with the federal law will be declared invalid, other sections will continue to operate
• Section 109 only operates when a party with standing challenges the conflicting legislation in the High Court
• Acts as a restriction on the law-making powers of the states
• can also cause states to not pass legislation that could be restricted under 109 for the fear it will be declared invalid

Question 6

Separation of Powers (+ overlap & separation)

Answer 6

Constitutional principle to ensure there is no abuse of power by those bodies involved in the creation of laws and the administration of justice

Overlap: occurs through the legislative and executive powers (as minsters - who run the executive branch, are also members - who act in the legislative power)

Separation: Judicial branch should be kept completely separate

Question 7

Evaluate Separation of Powers

Answer 7

Independent judiciary holds power to check that parliament doesn’t exceed its legislative power.
However: Cwth can pass legislation that could potentially impact the independence of the judiciary (e.g. anti-terrorism legislation passed in 2016 that allows the executive branch to strip someone’s citizenship for terrorism reasons without the court finding them guilty).
However: judges are appointed by the executive branch - creating the possibility of the perception of a conflict of interest

SoP allows the legislative branch to hold the executive branch accountable through question time.
However: this is limited as in reality the executive and legislative branch are combined (the GG in the executive branch acts on the advice of federal members of parliament - legislative)

Question 8

Legislative Power (+ who it is given to, section)

Answer 8

ability to make laws
Given to the Commonwealth Parliament
Section 1

Question 9

Executive Power (+ who it is given to, section)

Answer 9

ability to administer laws and ‘to conduct the business of government’.
Technically given to the Governor General, but is exercised by ministers
Section 61

Question 10

Judicial Power (+who it is given to, section)

Answer 10

ability to resolve criminal and civil disputes, sometimes through imposing sanctions and awarding damages.
Given to the courts
Section 71

Question 11

Judges appointment process (+ retirement age)

Answer 11

Appointed by the Governor-General (on advice of the government of the day).
Appointed until they turn 70

Question 12

Express Rights - Definition

Answer 12

Legal entitlements explicitly stated in the Australia Constitution. They protect human rights by limiting the law-making powers of the Commonwealth Parliament.

Question 13

Express Rights - List (+ sections)

Answer 13

Section 51(xxxi) - right to just terms when the commonwealth acquires property
Section 80 - Right to jury trial for Commonwealth indictable offences
Section 92 - Free interstate trade
Section 116 - Freedom of Religion
Section 117 - No discrimination based on state of residence

Question 14

Right to just terms when the Commonwealth acquires property (+ Section + detail + how it limits the power)

Answer 14

Section 51(xxxi)

Requires the Commonwealth acquire property on just terms (meaning appropriate compensation is given)
Can only be done ‘in respect of which the parliament has the power to make laws’ meaning it can only acquire property for commonwealth purpsoes

Acts as a check:
- Commonwealth can’t take away property without just terms
- Commonwealth can only take away property when it needs to for a cwth purpose (defence, immigration)
- Only applies to the federal government, not the states

Question 15

Right to a jury trial for Cwth Indictable Offences (+ Section + detail + how it limits the power)

Answer 15

Section 80

Requires all indictable offences in the commonwealth to be heard by a jury trial

Acts as a check:
- Guarantees individuals a jury trial is charged with an indictable offense under Commonwealth Law
- Commonwealth cannot legislate to have indictable offences tried by a judge alone
- However, most criminal offenses are state matters, and Section 80 doesn’t extend to cover them.
- However, the cwth can decide what legislation is indictable and summary. Therefore, they could make serious offenses legally summary offenses, allowing judge alone trials.

Question 16

Free interstate trade (+ section + detail + how it limits the power)

Answer 16

Section 92

Requires that trade & commerce, by any measure (internal carriage or ocean navigation) be completely free

Acts as a check:
- Commonwealth and State parliaments may not pass laws that restrict the free movement of goods between states. This includes things like taxes, and tariffs
- Commonwealth and State parliaments may not pass laws designed to restrict individuals movements
- However, the high court has said that law that has some valid purpose, but has the side effect of limiting movement between states might be valid (i.e. bail laws)

Question 17

Freedom of Religion (+ section + detail + how it limits the power)

Answer 17

Section 116

Cwth cannot limit any religion
Cwth cannot impose a religious test for any government position

Acts as a check:
- Commonwealth cannot pass laws that restrict the free practice of any religion.
- Nor can they impose a religion on another person.
- Nor can they create a religion
- However, section 116 limits only the cwth government, not state governments
- However, section 116 does not prevent the cwth passing laws about religion (i.e. funding religious schools)
- However, a law that could potentially force someone to do something that goes against their religion doesn’t necessarily breach section 116. (for example conscription)

Question 18

No discrimination based on state of residence (+ section + detail + how it limits the power x2)

Answer 18

Section 117

Requires that any resident from any state will not be discriminated upon in another state

Acts as a check:
- State laws cannot be passed that impose a burden on someone else because they live in a different state.
- However, some laws that discriminate between residents of different states may be acceptable (i.e. a Victorian law that prevents NSW citizens from voting in VIC elections would be allowed)

However, relatively few High Court cases have involved interpretations of Section 117. As a result, it remains unclear which laws will or won’t violate section 117.

Question 19

Role of the High Court (x2)

Answer 19

• To act as the guardian of the Constitution
• To interpret and given meaning to the words in the Constitution - therefore, the High Court upholds the system of government established in the Constitution itself

Question 20

Referendum Section

Answer 20

Section 128

Question 21

Double Majority

Answer 21

a ‘yes’ vote from the majority of voters Australia Wide
AND
a ‘yes’ vote from the majority of voters in the majority of states

Question 22

Double Majority - how it acts a check (benefits x2, weaknesses x2)

Answer 22

benifits:
- requires high degree of public support to change the constitution (therefore prevents the cwth from changing the constitution to benefit itself)
- protects states from having their law-making power decreased, without the approval of the states as a whole

weaknesses:
- difficulty required to change the constitution may limit the ability of much needed constitutional change
- referendum can appear undemocratic as even though a majority of voters voted for it, if not all states vote for it, the referendum will not pass

Question 23

Number of referendums proposed and passed

Answer 23

Proposed: 44
Passed: 8

Question 24

Example of referendum that changed the constitution

Answer 24

1967 Referendum

• Added aboriginal people to the national census (deleted section 127)
• Allowed the Cwth to make laws in relation to aboriginal people (amending Section 51(xxvi))

Question 25

Example of referendum that protected the constitution

Answer 25

1999 Republic Referendum

Proposed making the country a republic, and adding a new preamble to the constitution

Failed because:
- Caution of change
- public opinion varied
- public disagreed with the model
- the prime minister was against it

Ability of people to protect:
- rejection of change by people
- example of democratic purposes
- may be because of reluctance

Question 26

How referendums act as a check on parliamentary law-making

Answer 26

Prevents the cwth from changing the division of law-making power, express rights, our system of govt without the approval of the people

• Double majority is hard to achieve

However:
- S128 doesn’t limit parliament in passing other bills (only the text of the constitution)
- although s128 blocks the cwth from being able to change the text of the constitution without a double majority, the actual implementation of the words has been changed by the HCA

Question 27

Section 7 & 24

Answer 27

state the composition of the Senate and the House of Reps respectively
‘Directly chosen by the people’

Question 28

ACT v Commonwealth [1992] (Facts, Legal Issue, Decision, Impact)

Answer 28

Facts: in 1992, the Commonwealth passed legislation restricting the ability of political parties to advertise on tv and radio during election campaigns.

Legal Issue:
- did this violate the implied right to freedom of political communication
- was the law unconstitutional and invalid

Decision:
- Reinforced the principle of representative government (as outlined in s7/24)
- In order for people to be able to pick their reps, they must be able to hear from political parties and they must be free to discuss political issues - so that informed decisions can be made
- Found that an implied right to political communication exists
- However: Limited in scope - not an absolute right to freedom of speech, only exists to the extent that it upholds the principle of represented government

Impact:
- created a restriction on the power of the commonwealth parliament
- created a legal principle that was used in Lange v ABC to expand the implied right

Question 29

Lange v ABC [1997] (Facts, Legal Issue, Decision, Impact)

Answer 29

Facts : Lange was a NZ PM, who brought a case to ABC after he was the subject to a Four Corners report. The report argued that the NZ Labour party had come under the influence of large business interests as a result of large political donations made

Legal Issue:
- Lange argued this was false
- Suing for Defamation

Key Findings:
- Freedom of Political Communication is an ongoing freedom, and not limited to election periods

Impact:
- created a restriction on the power of the commonwealth parliament

Question 30

Roach v Electoral Commissioner [2007] (Facts, Legal issue, Decision, Impact)

Answer 30

Facts:
- in 2006, the Commonwealth passed legislation banning all prisoners from voting in Commonwealth Elections
- Roach was a prisoner, serving a 6 year term, who challenged the law

Legal Issue:
- Did the law infringe her right to vote

Decision:
- Constitution does not protect the right to vote for all adults
- however, the right to vote can only be removed for a ‘significant reason’ (e.g. long prison term, or being of unsound mind)
- and the limitation must be appropriate given the circumstances
- not all prisoners would reach the threshold of significant reason (e.g. those on remand or serving time for less serious offences)
- HCA ruled that the 2006 law was invalid, however, the previous law that banned voting for people serving terms over three years was acceptable

Impact:
- the commonwealth was restricted to only passing laws limiting voting for a ‘significant reason’

Question 31

Street Church Case [2010] (Facts, Legal issue, Decision, Impact)

Answer 31

Facts:
- Street Church started preaching what they considered to be the word of god
- anti-muslim, anti-woman, anti-gay -> street church would say they were going to hell for it
- Adelaide City Council used a bylaw that said persons were precluded from ‘preaching, canvassing or haranguing’ on any street without a permit.

Legal Issue:
- Can the council pass a law that limits free speech.

Decision:
- Yes. the council that restricts freedom of speech is constitutional
- ‘the purpose of the law was to prevent obstruction - to protect the safe and convenient use of the streets. Judges took the view that this is a reasonably and legitimate reason to limit freedom of communication.

Impact:
- Freedom of Political Communication limited - in cases where it needs to protect the safe and convenient uses of the streets

Question 32

Cases about Section 7 & 24 (x3)

Answer 32

• ACT vs Commonwealth [1992]
• Lange v ABC [1997]
• Roach v Electoral Commissioner [2007]

Question 33

Cases about Division of Constitutional Law Making x2

Answer 33

• R v Brislan [1935]
• Victoria v Commonwealth [1926] - The Roads Case

Question 34

R v Brislan [1935] (Facts, Legal issue, Decision, Impact)

Answer 34

Facts:
- Section 51(v) of the Constitution says the constitution has the power to make laws with respect to ‘postal, telegraphic, telephonic and other like services’.
- Cwth passed the Wireless Telegraphy Act which requires all owners of wireless sets to have a license.
- Brislan was charged with not holding a license

Legal Issue:
- Does a Wireless Set fall under ‘other like services’

Decision:
- HCA ruled that ‘other like services’ include wireless sets

Impact:
- Expanded the law-making power of the commonwealth to include other radio like devices, even those not explicitly stated in the constitution
- established a legal principle, as shown in Jones v Commonwealth (1965) - expanded to include TV, internet and cable

Question 35

Victoria v Commonwealth [1926] (Roads Case) (Facts, Legal issue, Decision, Impact

Answer 35

Facts:
- Section 96 of the constitution: Cwth has the right to make grants ‘on such terms and conditions as the Parliament see fits’
- Commonwealth passed laws stating explicitly what grants should be used for in the states

Legal Issue:
- Can the cwth dictate what grant money to the states is to be used for

Decision:
- they can - even if the grant is in areas of residual power

Impact
- indirectly increased the power of the commonwealth parliamnet
- States typically cant fund projects on their own (such as infrastructure) - so whilst the commonwealth cannot directly pass laws about residual powers, they can semi-dictate how the projects play out (by not providing grants)

Question 36

Treaty (+ impact on Domestic Law)

Answer 36

Agreement between two or more nations to do/not do certain things. These treaties are binding in International Law.

However, they do not become domestic law unless they are implemented into statue.

Question 37

International Declaration

Answer 37

Statement of Principle that is not legally binding.
A nation may sign the declaration, but is not required to follow the content of the document

Question 38

External Affairs Power (section + text)

Answer 38

Section 51 (xxix)
Cwth has the power to make laws with respect to ‘international treaties’

Question 39

Tasmanian Dams Case [1983] (Facts, Legal Issue, Decision, Impact)

Answer 39

Facts:
- Cwth government signed a treaty on the Convention Concerning the Protection of the World Cultural and Natural Heritage
- TAS government wanted to dam the Franklin River to create a source of Hydroelectric Power.
- TAS government passed an act to setup the scheme
- Cwth thought this was a bad idea, and passed an Act declaring that the Franklin River was a World Heritage Conservation area (under its international treaty).

Legal Issue:
- Can the commonwealth pass legislation in residual areas under the External Affairs Power

Decision:
- The commonwealth can pass legislation in residual areas under the External Affairs Power

Impact:
- Increased the law-making power of the commonwealth parliament - if they have signed the treaty, they have the power to pass laws to give it effect
- Even in Residual areas!

Question 40

Advantages (x4)/Disadvantages(x3) of the High Court as a check on Parliament

Answer 40

Advantages:
- Declares legislation invalid if its outside of the jurisdiction of the law-making body
- Declares legislation that violates express rights invalid
- Declares legislation that invalids implied rights invalid
- Declares legislation that breaches separation of powers invalid

Disadvantages:
- not proactive - a case must be brought
- requires standing to challenge a case
- expensive and time-consuming to bring a case to the High Court

Question 41

Koowarta v Bjeleke-Peterson [1982] (Facts, Legal Issue, Decision, Impact)

Answer 41

Facts:
- In 1996, Australia signed the international convention on the elimination of all forms of racism
- to comply, the Cwth passed the Racial Discrimination Act of 1975
- Koowarta attempted to purchase a block of land in Queensland, QLD government blocked it coz he was aboriginal, he sued under the Racial Discrimination Act of 1975

Legal Issue:
- Can the commonwealth pass laws under the external affairs act to give effect to the treaties it has signed with other nations

Decision:
- The commonwealth has the power to pass laws about matters that are of international concern
- if the government has signed a treaty on a particular topic, it would become a matter of ‘international concern’

Impact:
- the external affairs power allows the Commonwealth to pass laws giving effect to a treaty its signed

Question 42

Bicameral Structure of Parliament

Answer 42

The constitution requires a parliament with two houses of elected law makers.
These two houses are collectively referred to a bicameral parliament

Question 43

Implied Rights

Answer 43

Rights that are not clearly outlined in the text, but rather suggested or inferred in the text

Question 44

Right to a jury trial for Cwth Indictable Offences (+ Section + detail + how it limits the power)

Answer 44

Section 80

Requires all indictable offences in the commonwealth to be heard by a jury trial

Acts as a check

Question 45

Freedom of Religion

Answer 45

Section 116