The ConstitutionU302 Part A

Key Knowledge

the division of law-making power between state and Commonwealth parliaments under the Commonwealth Constitution, including specific (concurrent and exclusive) and residual

powers, and the impact of Section 109

restrictions imposed by the Commonwealth Constitution on the law-making powers of the state and Commonwealth parliaments

the process of change by referendum under Section 128 of the Commonwealth Constitution and factors affecting its likely success

the way in which one successful referendum changed the division of law-making powers

the role of the High Court in interpreting the Commonwealth Constitution

the significance of two High Court cases involving the interpretation of the Commonwealth Constitution in terms of their impact on the law-making power of the state and Commonwealth parliaments

the capacity of the states to refer law-making power to the Commonwealth Parliament

Key Skills

define key legal terminology and use it appropriately

discuss, interpret and analyse legal information and data

apply legal principles to relevant cases and issues

explain the role of the Commonwealth Constitution with respect to law-making powers and the protection of rights

identify the types of law-making powers

explain the methods and processes of changing constitutional power

analyse the impact of referendums, High Court interpretation of the Constitution, and the referral of powers on the division of law-making powers

SAC Date

Tuesday 21st April

2.31pm Room I1.18 & I1.19

Role of the Constitution

The Commonwealth Constitution is “a set of rules or principles that guides how the nation is governed”.

It provides a legal framework for the creation of the Commonwealth Parliament and outlines the structure of Parliament.

It outlines the law-making powers of the Commonwealth Parliament, that is, in which areas it can and can’t make laws.

The states can make laws in any area not mentioned in the Constitution, or not specifically made exclusive to the Commonwealth Parliament.

The Constitution creates the High Court and gives it the power to interpret the Constitution as the need arises.

Division of law-making

power

The Commonwealth Constitution sets out the division of law-

making powers between the state and Commonwealth

parliaments. The law-making powers are divided into:

Residual Powers

Residual powers are not specifically in the Constitution.

They were left to the states at the time of federation.

The Commonwealth Parliament cannot make laws in these areas.

Examples of residual powers:

Law enforcement, environment, education, health, public transport

STATE POWER

Specific Powers

Specific powers are those powers set out mainly in S51 of the

Constitution.

They are ‘specifically’ listed in the constitution. They can be

either:

Specific Powers

Exclusive Concurrent

Written in the Constitution

Exclusive Powers

An exclusive power is a power which can only be exercised by the Commonwealth Parliament.

The states cannot make laws in these areas.

These powers are mainly set out in S.51. Later sections then make some powers exclusive to the Commonwealth.

For example, S51(xii) gives power to the Commonwealth Parliament to make laws relating to coining money and S115 states that coining money is an exclusive power of the Commonwealth.

Examples of exclusive powers:

Naval and Military Forces, Coining money, Customs,

CommonwealthPower

Concurrent Powers

Concurrent powers are law-making powers over which both

the Commonwealth Parliament and the state parliaments share

jurisdiction.

If the powers set out in S51 are not made exclusive to the

Commonwealth by a later section, then they are concurrent

powers.

Examples of concurrent:

Taxation, Marriage, Trade

Shared Power

The impact of S.109

If the Commonwealth Parliament and a state parliament make

a law on the same area of law (under concurrent powers), and

the state law is inconsistent with the Commonwealth law, then

there is conflict between the state and Commonwealth legislation.

S109 of the Constitution provides a mechanism to resolve this.

S109 states that Commonwealth law has primacy and that if

there is a conflict between Commonwealth and State law

arises, the Commonwealth law prevails and the inconsistent

state law is invalid to the extent of the inconsistency.

Commonwealth prevails

Restrictions on law-making

The state and Commonwealth

parliaments are the supreme law-making bodies within their

jurisdiction.

However, this supremacy is

limited by the Constitution.

Methods of changing the division of

law-making powers

Referendum

High Court Interpretation

Referral of law-making powers

The process of change by

referendum

The procedure for changing the Constitution is set out in S128.

It has three stages, involving:

the parliament,

the people and

the governor-general.

Parliament

Any proposed change must first be put in a Constitutional

Alteration Bill that must pass both houses of parliament or one

house twice if the governor-general allows.

If either house passes the proposed change and the other

house rejects it, 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.

The people

The proposed change is put to the people no sooner than 2 months and no later than 6 months after the bill has passed parliament.

The referendum is put to all eligible voters (those required to vote for the House of Representatives).

Voters are required to answer ‘Yes’ or ‘No’ to the question asked. For example ‘Should Australia become a republic?’.

For a referendum to pass it must achieve a double majority:

A majority of voters in the whole of Australia

A majority of voters in a majority of states (4 out of 6) – this protects the smaller states from being dominated by the larger states.

Governor-general

If the referendum achieves a double majority, it is then

presented to the governor-general for royal assent.

Once royal assent has been given, the change to the Constitution is made.

Factors likely to affect the

success of referendums

Since 1901 there have been 44 proposals for a change to the Constitution put to the people.

Only eight have been accepted.

Factors affecting the likely success of referendum proposals include the following:

timing

double majority

lack of bipartisan support

voter conservatism

Timing

The timing of referendums could contribute to their lack of

success.

Because of the expense of holding a referendum, they are often held at the same time as an election.

Voters are likely to be concerned about which party to vote

into office, rather than considering the referendum being put

to them at the same time.

This can take the focus away from the referendum.

Double Majority

The strict requirement of a double

majority means it is not an easy task to

amend the Constitution in order to

reflect the will of the voters

In particular, the requirement of a

majority of electors in a majority of

states is difficult to satisfy.

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.

Voter conservatism

Voters tend to be conservative and prefer to accept the

Constitution as it is rather than change to something that could

have unknown adverse effects.

Successful referendums

The study design requires that you know ‘the way in which one

successful referendum changed the division of law-making

powers’.

1967: Indigenous Australians

1967: Indigenous Australians

One referendum which changed the division of law-making power from the states to the Commonwealth was in relation to Indigenous people.

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.

Prior to this change to the Constitution all Indigenous issues had been left with the states because they were deemed to have more specialised knowledge.

All six states voted in favour of the referendum. Across the whole of Australia, 90.77 per cent of voters voted in favour and 9.23 per cent against.

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.

Analysis of impact of referendums on the

division of law-making powers

Overall

Referendums have tended to have little impact on the division of law making powers. Only 8 out of 44 referendums have passed, and only 3 referendums have actually altered the division of powers.

Factors that limit the impact of referendums

timing

double majority

lack of bipartisan support

voter conservatism

Factors that increase the impact of referendums

However, as referendums are the only method that can directly alter the words of the Constitution; if successful they can have a big impact on the division of powers.

In all three successful referendums that altered the division of powers, the Commonwealth Parliament gained power at the expense of the states.

For example, the Indigenous Australians referendum in 1967 gave the Commonwealth the power to make laws for Indigenous Australians and to include them in the national census. This power previously belonged to the states.

High Court Interpretation

Disputes usually arise when an act is passed by a parliament

that is thought to be outside their constitutional power.

Financial dominance

High Court interpretations have tended to increase the financial dominance of the Commonwealth

Due to the First Uniform Tax case and the introduction of the GST, the Commonwealth now raises 90% of monies and distributes to the states.

This gives the Commonwealth a great deal of influence as they can place conditions on how the states spend the money.

The Constitution gives the Commonwealth power to do this in a number of ways:

Tied grants (S96)

Right to use money (S81)

Excise duties (S90)

High Court cases

You must understand the significance of two High Court cases involving the interpretation of the Commonwealth Constitution in terms of their impact on the law-making power of the state and Commonwealth parliaments.

Brislan’s Case

Franklin Dam Case

Analysis of the impact of High Court

interpretations on the division of law-

making powers

Overall

High Court interpretations can have a large impact on the division of powers. In particular, they have shifted power from the states to the Commonwealth in a number of areas.

Factors that have increased the impact of High Court interpretations

There have been a number of High Court cases that have shifted the balance of power:

The Brislan case confirmed and extended the Commonwealth Parliament’s power to legislate regarding wireless sets and clarified the meaning of S51(v).

The Franklin Dam case allowed the Commonwealth to make laws in areas traditionally thought of as residual powers if they could demonstrate they were using their external affairs power when enacting obligations of an international treaty.

Factors that limit the impact of High Court interpretations

However, there a number of factors that have limited the impact of High Court interpretations on the division of law-making powers:

Factors that limit the impact

of High Court Interpretations

There have been few High Court cases that have actually changed

the division of law-making powers.

The High Court cannot change the words in the Constitution, so its

role is limited to interpretation.

The court has to wait for a relevant case to be brought before it. This requires a person with standing (who is directly affected by the

issue) to bring the case to the High Court.

It is very expensive and time consuming to take a case to the High

Court.

Strengths of High Court

Interpretation

A matter can be dealt with when a case is brought before the

court and an injustice can be rectified.

High Court judges are experts at interpreting 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.

Referral of Powers

The states can refer any of their residual law-making powers to

the Commonwealth.

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

Referred powers operate only in states that referred the power.

The process of referral of law-making power involves the state

parliaments passing an act giving their law- making power to

the Commonwealth and the Commonwealth Parliament passes an act accepting this power from each state that has referred its

power.

Impact of referral of powers

The impact of the referral of law-making powers is that the Commonwealth increases power at the expense of the states

However, the states have generally been reluctant to hand over any of their powers to the Commonwealth Parliament.

Examples:

Ex-nuptial children

De facto financial matters (Victoria only)

Terrorism

Analysis of the impact of the referral

of powers on the division of law-

making powers

Overall

Referral of powers has tended to have a minimal impact on the division of law-making powers as states have tended to be reluctant to give up their powers to the Commonwealth.

Factors that increase the impact of referral of powers

Referral of powers is quite easy to achieve as state and Commonwealth parliaments only need to pass a law referring the power.

It allows states to refer powers that are best left to the Commonwealth, for example terrorism, to ensure a unified approach to an area of law

The states are able to decide which law-making powers are to be referred

Factors that limit the impact of referral of powers

States have traditionally been reluctant to hand over power to the Commonwealth

It is another way of centralising law-making and reducing the law-making power of the states.

The states can agree to pass uniform laws without losing their law-making power.

It is not clear whether referred powers are exclusive to the Commonwealth or held concurrently; or whether states can get referred powers back

END OF U302 Part A