The document discusses key aspects of the Australian Constitution, including the division of law-making powers between the Commonwealth and state parliaments. It covers the types of law-making powers - residual, exclusive, and concurrent - as well as the impact of Section 109 which establishes the primacy of Commonwealth laws over inconsistent state laws. Methods of changing the division of powers are also discussed, including referendums, High Court interpretations, and the states referring powers to the Commonwealth. One successful 1967 referendum is highlighted which gave the Commonwealth power over Indigenous affairs, previously a state power.

1. The Constitution
U302 Part A

2. 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

3. 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

4. SAC Date
Tuesday 21st April
2.31pm Room I1.18 & I1.19

5. 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.

6. 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:

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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.

15. Methods of changing the division of
law-making powers
Referendum
High Court Interpretation
Referral of law-making powers

16. 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.

17. 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.

18. 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.

20. 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.

21. 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

22. 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.

23. 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.

24. 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.

25. 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.

26. 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

27. 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.

28. 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.

29. High Court Interpretation
 Disputes usually arise when an act is passed by a parliament
that is thought to be outside their constitutional power.

31. 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)

32. 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

35. 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:

36. 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.

37. 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.

38. 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.

39. 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

40. 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

41. END OF U302 Part A