AOS 2

Legal Revision Slides

The Constitution The Commonwealth of Australia Constitution 1900 (UK)

•  Division of Power •  Restrictions on law making powers •  Referendum •  High Court Interpretation

Role of the Constitution

Outline structure of

commonwealth parliament

Provide for direct

election

Give high court power

of interpretation

Facilitate the division of law making powers

Division of Powers Law making powers of state and parliament are divided into: !  Specific Powers: Powers

belonging to the commonwealth parliament outlined in the constitution

!  Residual Powers: Powers left with the states at the time of federation

Federal State

Specific powers

outlined in constitution

Exclusive

Concurrent

Powers left to states

Residual

Specific Powers are divided into Exclusive (belonging only to the federal parliament) and Concurrent (shared with the states) S109 of the constitution states if there is an inconsistency between laws made under concurrent powers, federal law prevails and state law must be changed

Residual Power Power that is not listed in the constitution Areas of Residual Power: !  Law enforcement !  Environment !  Public Transport !  Education !  Health

Specific Power

Exclusive Power Concurrent Power

Power that can only be exercised by commonwealth parliament Areas of Exclusive Power: !  Customs and excise !  Naval and Military !  Coining money !  Naturalisation (becoming and

Australian citizen) and Aliens

!  Shared powers between commonwealth and state

Areas of Concurrent Power: !  Trade !  Taxation !  Marriage

S109 !  If there is an inconsistency between a State law and a Federal

law made in the area of concurrent powers, section 109 of the constitution states that the commonwealth law prevails. The state law is invalid to the extent of the inconsistency

!  E.G: John McBain v. The State of Victoria & Ors (2000). This case involved a conflicting law and as a result the state part of the law became invalid

Practice Question !  Define each of the following types of powers contained in the

Commonwealth Constitution and provide an example for each !  Specific powers !  Exclusive powers ! Concurrent powers ! Residual powers

(6 marks)

Mark Breakdown !  1 mark for each definition and 2 marks for the provision of

examples for each of the four types of power (i.e. half a mark each).

!  Note that when explaining concurrent powers, the inconsistency provision (s.109) must be referred to in order to obtain the mark

Model Response !  Specific powers are law-making powers of the

Commonwealth Parliament that are listed or enumerated in s. 51 of the Constitution. There are 40 areas of Commonwealth power listed in s.51, e.g. trade, external affairs, taxation

Model Response !  Exclusive powers are law-making powers that can be

exercised only by the Commonwealth Parliament. These are specific powers that are made exclusive by way of other sections of the Constitution either stating that they are exclusive e.g customs and exercise, or by other sections prohibiting a state from exercising powers in an area e.g. coining money, defence

Model Response !  Concurrent powers are law-making powers that are shared by

both the Commonwealth and State Parliaments as both levels of parliament have the power to make laws in this area. However should the laws they make be inconsistent, then s.109 states that the Commonwealth law will prevail and the inconsistent parts of the state legislation shall be invalid. For example taxation and marriage

Model Response !  Residual powers are powers left to state parliaments to

legislate on. They are not listed in the Constitution, and so the power over these areas of law remains with the states. For example criminal law, public transport

Restrictions on State and Commonwealth Parliament Parliaments can make laws only within their area of jurisdiction (area of power)

Restrictions on State Parliament States cannot make laws in areas of exclusive power. They are also restricted by S109. Examples of restrictions are: !  S114: Raising military forces (Exclusive) !  S115: Coining money (Exclusive) !  S90: Customs (Exclusive) !  S109: Concurrent powers !  S92: Trade within the commonwealth must be free

Restrictions on Commonwealth Parliament !  S106, S108: Guarantee of state powers !  S116: Freedom of religion !  S117: Rights of residents in states !  S99: Commonwealth shall not give preference to the states !  S92: Free trade between states !  S51 (xxxi): Acquiring property must be on just terms !  S128: Changing the constitution must be done under the

process of S128 The principle of Separation of Powers as well as high court interpretations of the constitution also act as restrictions

Practice Question !  Explain two restrictions imposed on the law-making powers

of the Victorian Parliament stated in the Constitution (2 marks)

Model Response !  Restrictions on law-making powers of the state include:

! Any area of exclusive power e.g military, coining money, customs and exercise

!  Free trade between the states !  Effect of s.109 if states pass a law inconsistent with the

Commonwealth law in areas of concurrent power

1 mark per restriction explained

Referendum Changing the words of the constitution under S128

Referendum !  The Impact of a successful

referendum is that law making power of states and commonwealth may be altered.

!  Usually more power is given to the commonwealth

!  S128 gives mechanism for change by the process of referendum

Process of a Referendum

Parliament •  The proposed change must pass both houses of

Parliament OR it may pass the same house twice (only after 3 months between first vote)

The People

•  A Double Majority is required from the voting population. This means a majority of yes votes from the whole country as well as majority of states

Royal Assent

•  Royal Assent is given by the Governor-General

Factors Affecting the Success of a Referendum !  Timing !  Double Majority requirement !  Lack of Bipartisan Support: More likely to be successful if

both parties support the referendum !  Confusing Information !  Voter Conservatism !  Erosion of States Rights: Many proposed referendums would

result in the states losing some of its power, so people vote against them to keep state powers

!  High cost

Strengths and weaknesses of the process of referendum

Strengths Weaknesses

The people can have their say Lack of understanding from people

Double majority results in protection of smaller states

Double majority makes it difficult to pass referendums

The process ensures protection of the constitution

Conservative voting (people accept things as they are)

One house can vote for a change twice for referendum to be put toward the people

Lack of bipartisan support

Compulsory vote Timing and cost

Change in the division of law making powers Can results in states having a lack of power

Practice Question !  There is one formal process that changes the wording of the

Constitution. Describe this process and discuss TWO reasons why this process have been relatively ineffective in changing the Constitution

(8 marks)

Mark Breakdown !  1 mark for each stage of the process correctly identified (4

marks) !  2 marks for each reason given for not working (4 marks)

Model Response !  Under Section 128, a referendum is the only way that the

actual words of the Constitution can be changed. !  Process

! A proposed referendum/change must go through both houses of Commonwealth parliament as a bill

! The proposed change is put to the people not less than two months and not more than 6 months after the passage through parliament and voted in a yes/no vote

! Double majority achieved (majority of people in a majority of states)

!  If majority achieved, royal assent is granted and the changes proposed in the referendum are put in place

Model response (cont’d) !  Why relatively ineffective:

!  Lack of bipartisan support (lack of both political parties support). Voters often vote in line with their major political party of preference and due to both political parties being on opposite sides, it becomes difficult for change to be implemented

!  Confusion and suspicion of the voters of the intended change. Voters are often confused by what the change or the intended change will mean for them and vote no

!  Voter conservatism – voters often indicate no rather than changing something that they have not previously experienced

!  Double majority is hard to achieve through the complexity of varying stages

1967 Referendum Regarding Aboriginal People Proposal: The suggested changes to the constitution involved changing S51 (xxvi) and deleting S127. Section 51(xxvi) stated that the commonwealth could make laws for the people of any race in any state, for whom it is deemed necessary to make special laws. S127 did not allow aborigines to be counted in the federal population

Reason for the change: This referendum was created to ensure that the constitution did not discriminate against the aborigines. In 1966 the Australian Government signed the International Covenant on the Elimination of All forms of Racial Discrimination. They the had to ensure that laws did not contradict this treaty

1967 Referendum Regarding Aboriginal People Result: The referendum was successful with a 90.77% ‘yes’ vote. Section 51 (xxvi) was changed by deleting the exclusion of aborigines. Section 127 was also deleted.

Impact of Change: S51 (xxvi) was changed and S127 was deleted. This meant that aborigines were counted in the federal population. More law making power was given to the commonwealth as this area of law became concurrent. This meant laws specific to aborigines were able to be made by the commonwealth.

Practice Question !  Identify one referendum that has successfully changed the

Constitutional division of law-making powers. Comment on the significance of this referendum

(5 marks)

Mark Breakdown !  4 marks for identifying a successful referendum and the year !  1 mark for identifying what the change was in the

referendum

Model Response !  1967 Referendum !  The Constitution was changed to include Aboriginal people,

making it possible for the Commonwealth Parliament to make laws relating to Aboriginal people and to include Aboriginal people in the Australia-wide census. This change had general support from both major political parties, and the people voted overwhelmingly in favour of it.

!  Before the change: S51 (xxvi) stated that people of any race other than the Aboriginal race in any state for whom it deemed necessary to make special laws

!  After the change/the significance: stated that people of any race for whom it is deemed necessary to make special laws

High Court Interpretation S71 of the constitution establishes the high court. The high court can interpret the constitution however they like which does not change the words but changes or adds meaning.

Role of the High

Court

Give meaning to the words

of the constitution

Keep the constitution up to date

Act as check and balance on injustices

Act as Guardian of

the Constitution

High Court Interpretation !  The high court changes the

meaning or adds meaning the constitution without the changing the words

!  The high court can only interpret the constitution when a relevant case is brought to them

!  The high court can use broad or narrow interpretation

Reasons to bring a law to the high court !  If laws are passed outside a

law making body’s area of power, the state and commonwealth parliaments can challenge each others laws

!  Individuals or groups can challenge a law if they are directly affected

Tasmanian Dam Case Tasmanian Parliament intended to dam the

Franklin River

Gordon River Hydro-Electric Power

Development Act 1982 (Tas) was passed

Australia wide protests occurred

World Heritage Properties Conservation Act 1983

(Cth) was passed to prevent Dam

Tasmanian government argued that this was in a

state area of Law. Commonwealth argued

that it came under ‘external affairs’

High court decided external affairs included all

relationships with other countries including the World

Heritage Conservation List

Movement of power from states to commonwealth occured

Croome V. Tasmania Homosexual activities

were illegal in Tasmania in the

1990’s

Many groups opposed the law but the

government refused to change it

The commonwealth parliament passed the Human Rights (Sexual Conduct) Act 1994,

legalizing sexual activity between consenting adults

The Tasmanian government maintained that homosexuality was

an area of residual power

In 1997, Rodney Croome applied the high court in regards to the

inconsistency

The Right To Privacy is under section 17 of the

International Covenant on Civil and political rights,

which Australia is a part of.

The high court decided that ‘external affairs’ in S51

(xxix) included this treaty, therefore the Human Rights

Act was under commonwealth jurisdiction

The part of the state law criminalizing homosexuality

became invalid (S109)

Practice Question !  Using at least one illustrative example, explain how High

Court interpretation of the Commonwealth Constitution occurs and the impact of this interpretation on the division of law-making powers

(5 marks)

Model Response !  Section 71 and 76 of the Constitution permits the High

Court to hear cases relating to the interpretation of the Commonwealth Constitution. Cases may arise when a party challenges the constitutional validity of a statue made by parliament, arguing that it has been made ultra vires or outside of that parliament’s constitutional law-making power. The High Court is then to interpret the Constitution to determine the powers of that parliament

!  Examples either Tasmanian Dam or Croome v. Tasmania

Tasmania Dam Response !  The Tasmanian Parliament questioned the powers of the Commonwealth

Parliament to pass laws to overrule the damming of the Franklin River, seeking that the High Court declare the Commonwealth legislation to be ultra vires. The Tasmanian Government wanted to dam the Franklin River for a hydro-electric scheme. However, the Federal Parliament passed the World Heritage Properties Conservation Act in order to prevent this from occurring, to uphold its UNESCO Convention obligations. When Tasmania challenged the validity of the federal legislation, the High Court decided that the Act was valid, as it was made under ‘external affairs’ power of the Constitution. The impact was that the High Court extended the meaning of the term ‘external affairs’ (s.51 (xxix) to include law-making necessary to uphold the obligations under an international treaty signed by the Federal Government. This extended the law-making powers of the Federal Parliament, which could pass legislation in a range of areas, including areas of residual power for example in the Croome v Tasmania Case

Referral of Law Making Power

Referral of Powers !  States can refer their power

to the commonwealth. The states agree and pass a bill allowing commonwealth control over that area of power

!  The impact is that there is a change in the division of powers between the states and the commonwealth in favour of the commonwealth

Areas of Uncertainty ! Are powers that are referred to the

commonwealth able to be revoked by the states?

! Are referred powers concurrent or do they become exclusive?

Strengths and Weaknesses of Referral of Power Strengths Weakness

States are able to discuss the issue thoroughly States may find it would have been better for them to keep an area of law

The commonwealth is able to make laws for the benefit of the whole country

States can agree to pass uniform laws without losing their law making power

It is difficult to get states to pass uniform laws, if the commonwealth has the power the law will affect all states

Reduction in law making power of the states

Practice Question !  The states have the ability to refer their powers to the

Commonwealth if they wish. Explain how this could occur and give an example of this process in action

(3 marks)

Model Response !  The states can refer their power to the Commonwealth at any

time. The states must agree to hand over an area of power to the Commonwealth and then an Act is passed by the states giving their law-making power to the Commonwealth and the Commonwealth passing an Act accepting this power.

!  Examples: !  Property and financial matters of de facto couples !  Ex-nuptial children !  Fair work !  Murray-darling 1 mark for giving an overview of the process 2 marks for giving an example and explaining what happened with

regards to handing over power