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Flashcards in unit 4 sac 2 Deck (17):

what case is the high court interpreting sections 7 & 24 of constitution

- roach vs electoral commissioner (2007)


what referendum was significant

- the 1967 aboriginal and Torres Strait islander peoples referendum


which high court case had an impact on the division of constitutional law making powers

- the work choices case
- New South Wales vs commonwealth (2006)


what case had an impact of international declarations and treaties on the interpretations of the external affairs power

- the Tasmanian Dam case
commonwealth v Tasmania (1983)


explain the roach vs electoral commissioner case (sections 7 & 24)

- in 2006, the commonwealth parliament passed the Electoral and referendum amendment which banned all convicted and sentenced prisoners from voting in elections.
- vickie lee roach (prisoner serving 6 years) challenged the constitutional validity of the acts
- found that the 2006 act was inconsistent and unconstitutional with the representative democracy rule as sections 7&24 which require that parliament is chosen 'directly by the people' legally protect the right of the people to choose the members of parliament


significance of the roach case

- upheld the fundamental requirement that members of the commonwealth parliament must be directly chosen by the people
- found that the parliament had acted beyond its power (unconstitutionally) by denying certain prisoners the right to vote
- high court has held the S7 & 24 do not allow for unreasonable restrictions on the ability of the people to choose the members of parliament
- as with the implied right of freedom of political communication, the requirement that the house be chosen directly chosen by the people can be limited by the commonwealth parliament, however limitations must be appropriate


explain 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 census
- proposed to remove the barriers facing aboriginal people from the constitution
- the referendum was held on whether the commonwealth parliament should have powers in respect to aboriginal and Torres Strait islander peoples


proposals put to the people about 1967 referendum

there was 2 proposals:
- one under the constitution alteration (parliament) bill 1967 to alter the constitution so that the number of members of the house of reps could be increased without necessarily increasing the number of senators
- one under the commonwealth alteration (aboriginals) bill 1967 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 second proposal included 2 questions: whether indigenous people should be included in the national census, and whether the commonwealth parliament should be allowed to create law regarding the "people of the aboriginal race"


results of the 1967 referendum

- majority of voters in Australia voted in favour of the referendum
- 90.77% of voters were in favour
- this meant it was time to make amends to aboriginal and Torres Strait islander peoples
- the state with the largest indigenous population (WA) actually recorded the largest 'no' vote
- the referendum gave the commonwealth parliament the power to legislate for indigenous people in the states and territories and to include them in national census. this altered section 51 (xxvi) of the constitution and deleted S 127


the ability of people to change the constitution highlighted with there 1967 referendum

- allowed the commonwealth parliament to move into an area that was previously denied under a constitution, residual power became a concurrent power
- highlights the power of the people to decide whether key changes in the wording of the constitution are to be made, especially those related to social and human rights issues


explain the work choices case
nsw vs commonwealth (2006)

- plaintiff (NSW, VIC, QLD, WA) challenged the constitutional validity of the commonwealth parliaments workplace relations amendment act 2005. key issues were:
- section 51 (xx) of the constitution allows the commonwealth to make laws with respect to 'foreign corporations' nd trading or financial corporations formed within the limits of the commonwealth'
- commonwealth argued that this power under constitution allows it to make laws regarding the rights and responsibilities of the workers who are employed by corporations
- states and trade unions argued in response that this was a grab for power by the commonwealth, which was interpreting the corporations power too broadly

- plaintiffs argued that the corporations power was limited to relationships between corporations and external entities
- high court decided with a 5;2 majority that the legislation was valid and that the commonwealth had power in relation to both internal and external relationships in constitutional corporation


significance of work choices case

- high courts ruling was that this power gave the commonwealth the ability to make law with regard to industrial matters between employees and employers. this has greatly reduced the ability of the states to regulate workplace relations at a local level
- high courts ruling gave the commonwealth very broad control over industrial relations, which shifted the balance of power away from the states
- commonwealth could now control all aspects of industrial law for the vast majority of workers which affected a diverse range of people such as teenagers working casually in the retail sector


explain the Tasmanian dam case
commonwealth vs tasmania (1983)

- Tasmanian government intended to make a dam in the Franklin river to create a source of hydroelectricity for the states power needs
- this brought many protests which caused the commonwealth to intervene in an area of state law. the Tasmanian government maintained that it had the right to make laws concerning the dam
- the commonwealth maintained that is had a duty to stop work likely to damage or destroy Australians national heritage. the world heritage properties conservation act (1983) was passed to prohibit the construction on the dam on the basis of seeking to to protect fragile wilderness regions
- tas gov argued that the commonwealth acted in an area of state responsibility and the commonwealth law was unconstitutional
the commonwealth argued that it had the power to intervene because its 'external affairs' power gave it authority to make laws relating to an issue covered by world heritage listing (international treaty)


high court decision on the Tasmanian dam case

- the high court decided that as all aspects of Australia's relationships with other countries are included under the external affairs power, and because the Franklin river was covered by an international treaty, it too came under the external affairs power
- the decision interpreted the words 'external affairs' to include any area covered by an international treaty


significance of the Tasmanian dam case

- the commonwealth was able to move into an area of law making that was previously left with the states which increased the law making over the commonwealth had
- could lead to the commonwealth parliament assuming power over other issues involving international treaties, such as human rights


what are international treaties

- a binding agreement between countries thats governed by international law


whats a referendum

the method used for changing the wording of the constitution, it requires a proposal to be approved by the Australia people in a public vote by a double majority