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THE CONSTITUTION: Is a set of rules declaring the nature, functions and…
THE CONSTITUTION
: Is a set of rules declaring the
nature
,
functions
and
limits
of government. (NFL)
DIVISION OF LAW MAKING POWER:
SPECIFIC POWERS:
Set out in section 41, under 40 heading ('the heads of power').
Purpose: 'to make laws for the peace, order and good government of the Commonwealth.'
Some of these powers are either
exclusive
or
concurrent.
EXCLUSIVE POWERS:
Stated in the Constiution
The Constitution gives exclusive powers to the Federal Parliament
eg: s114 naval and military forces
s115 coining money
CONCURRENT POWERS:
Sated in the Constitution
They are shared between the Commonwealth and the States
eg: s51(i) trade
s51(11) taxation
When talking about concurrent powers, mention the significance of s109
SECTION 109:
Inconsistency of laws
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid
RESIDUAL POWERS:
Not stated/listed in the Constitution
Are those powers left with the States
eg: law enforcement, public transport, education, environment
RESTRICTIONS IMPOSED BY THE CTH CONST ON THE LAW-MAKING POWERS OF THE STATE AND CTH PARLIAMENTS:
RESTRICTION ON STATES:
s51- specific powers
s109
s115- raise or maintain a military force
s115- currency, coinage and legal tender
RESTRICTION ON THE CTH:
s116- the commonwealth is not to legislate in respect to religion
s117- no discrimination against people based on their state of residence
s51(ii)- no discrimination between states with taxation
residual powers
3 WAYS LAW-MAKING POWERS IN THE CONSTITUTION CAN BE CHANGED:
HIGH COURT INTERPRETATION
(CHANGES THE MEANING OF THE WORDS)
ROLE:
the high court was established under s71
s76 empowers the high court to interpret the Constitution
change the meaning not wording
create a binding precedent on all courts to help keep the Constitution relevant
guardian of the Const
deem the States of Cth acting ultra vires
STRENGTHS:
high court judges are experts on constitutional law
update it for modern use
guardian therefore ensure that parliaments to no abuse their law-making powers
WEAKNESSES:
expensive and time consuming
usually favours the Cth parliament
composition of the high court judges may affect the interpretation given eg: conservative judges may be reluctant to change law-making powers, but progressive judges are more inclined to do so
TWO HIGH COURT CASES INVOLVING THE INTERPRETATION OF THE CTH CONST AND THEIR IMPACT ON THE LAW-MAKING POWERS OF STATE AND CTH PARLIAMNETS
:
Tasman Dam case
Brislan Case
REFERRAL OF POWERS
STATE REFERRAL OF POWERS:
s51(xxxvii) The commonwealth can make laws on matter referred to it by any state
eg: Terrorism
STRENGTHS:
the commonwealth are able to make laws that are consistent across Aus
states the the ability to decide specific areas of law-making that they feel would be best dealt with by the commonwealth
means to transfer or re-distribute legislative power between the commonwealth and the states without the need to amend the const
WEAKNESSES
:
the potential impact of states deciding to revoke these referred power is unclear
the commonwealth may refus to accept the powers referred to it by a sate
some states may refer their powers in one area to the commonwealth, while others do not, which means the laws will not benefit all Australians
REFERENDUM
(CHANGES THE WORDING)
SECTION 128
requires that a referendum is necessary before the Constitution can be altered.
PROCESS:
PARLIAMENT: both houses, or one house twice after 3 months, GG can send it straight to the people
THE PEOPLE: double majority
GOVERNOR-GENERAL: royal assent
FACTORS AFFECTING THE LIKELY SUCCESS:
Timing Double majority
Lack of bipartisan support
Confusing information
Voters conservatism
Erosion of states' powers
8/44 have been successful
ONE SUCCESSFUL REFERENDUM:
1967 Referendum
The Constitution alteration (Aboriginals) Act 1967 enables -
Commonwealth to enact laws for Aborigines.
s51(xxvi) was partially deleted
s127 was completely deleted
POSITIVES:
compulsory
protect smaller states
protects the constitution
majority of voters win
NEGATIVES:
costly
timing
voting according to political lines
lack of understanding therefore vote no