2. The Constitution
The Commonwealth of Australia Constitution 1900 (UK)
• Division of Power
• Restrictions on law making powers
• Referendum
• High Court Interpretation
3. 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
4. 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
5. Residual Power
Power that is not listed in
the constitution
Areas of Residual Power:
! Law enforcement
! Environment
! PublicTransport
! Education
! Health
6. 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) andAliens
! Shared powers
between
commonwealth and
state
Areas of Concurrent Power:
! Trade
! Taxation
! Marriage
7. 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 ofVictoria & Ors (2000).This
case involved a conflicting law and as a result the state part of
the law became invalid
8. 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)
9. 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
10. 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
11. 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
12. 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
13. 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
14. Restrictions on State and
Commonwealth Parliament
Parliaments can make laws only within their area of jurisdiction (area
of power)
15. 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
16. 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
17. Practice Question
! Explain two restrictions imposed on the law-making powers
of theVictorian Parliament stated in the Constitution
(2 marks)
18. 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
20. 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
21. 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
22. 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
23. 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
24. Practice Question
! There is one formal process that changes the wording of the
Constitution. Describe this process and discussTWO reasons
why this process have been relatively ineffective in changing
the Constitution
(8 marks)
25. 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)
26. 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
27. 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
28. 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
29. 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.
30. 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)
31. Mark Breakdown
! 4 marks for identifying a successful referendum and the year
! 1 mark for identifying what the change was in the
referendum
32. Model Response
! 1967 Referendum
! The Constitution was changed to includeAboriginal people,
making it possible for the Commonwealth Parliament to make
laws relating toAboriginal people and to includeAboriginal
people in theAustralia-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 theAboriginal 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
33. 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.
34. 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
35. 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
36. Tasmanian Dam Case
Tasmanian Parliament
intended to dam the
Franklin River
Gordon River Hydro-
Electric Power
DevelopmentAct 1982
(Tas) was passed
Australia wide protests
occurred
World Heritage Properties
ConservationAct 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 theWorld
Heritage Conservation List
Movement of power from states
to commonwealth occured
37. 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
TheTasmanian
government maintained
that homosexuality was
an area of residual power
In 1997, Rodney
Croome applied the high
court in regards to the
inconsistency
The RightTo Privacy is
under section 17 of the
International Covenant on
Civil and political rights,
whichAustralia 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)
38. 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)
39. 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 eitherTasmanian Dam or Croome v.Tasmania
40. Tasmania Dam Response
! TheTasmanian 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.TheTasmanian Government wanted to dam the Franklin
River for a hydro-electric scheme. However, the Federal Parliament
passed theWorld Heritage Properties ConservationAct in order to
prevent this from occurring, to uphold its UNESCO Convention
obligations.WhenTasmania challenged the validity of the federal
legislation, the High Court decided that theAct 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 vTasmania Case
42. 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
43. 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?
44. 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
45. 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)
46. 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 anAct is passed by the states giving their
law-making power to the Commonwealth and the Commonwealth
passing anAct 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
