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40 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Define Constitution. |
The set of basic laws by which a state or nation is governed. |
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What are the four major methods of Constitutional Change? |
High Court interpretations
Unchallenged legislation
Referral of powers
Referendums |
HURR |
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What are the formal methods of Constitutional change? |
Referendums
Without altering words: Referral of powers
Unchallenged legislation or cooperative arrangements
High Court judgments
Constitutional Commissions |
CHURR |
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Which section of the Australian Constitution deals with amendments to the Constitution? |
Section 128 |
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Define referendum. |
A direct vote of the electorate on a policy proposal. |
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Describe in detail the process for a referendum to be successful. |
Parliamentary approval: A bill for a referendum, stating the exact words of the question to be put to citizens, must pass both houses of Federal Parliament, or be re-passed after an interval of three months, by one house only.
Approval by the people: The subsequent referendum must gain a double majority - voting is compulsory, although this is not a constitutional requirement.
Vice Regal approval: The constitutional amendment must be given royal assent by the Governor General (Representative of the Head of State) |
PA-PE-V |
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How many referendums have been put to the Australian people since 1906? |
44 referendum proposals |
Double duplicated digits |
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What is meant by the 'double majority' requirement? |
A referendum must be agreed to by an overall majority of voters in the States and Territories, and by a majority of voters in at least four out of the six States. |
States/territories + overall |
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What institutional factors have contributed towards 'no' responses in referendums at the federal level?
What are some examples of case(s) that have been influenced by these factors? |
The rules and structures of the referendum process have an impact on the results.
Federal Parliament's exclusive right to initiate a referendum bill
Compulsory voting
Nature and number of questions
Double majority requirement - although this has only caused the defeat of four proposals Eg. In 1977, 62.2% of voters agreed to a constitutional amendment to institute simultaneous elections for the House of Reps and Senate. However, the proposal failed because it was defeated in WA, Queensland and Tasmania. |
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What political factors have contributed towards 'no' responses in referendums at the federal level?
What are some examples of case(s) that have been influenced by these factors? |
Political loyalties strongly influence how electors vote in referendums Eg. In 1984, the Liberal Party campaigned against both amendments to weaken the government and have a better chance of succeeding in the next election.
Loyalty to Australian's states of origin influence voters' attitude towards Federal proposals due to the fear of bias and lack of support for States' rights
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Parties States |
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What attitudinal factors have contributed towards 'no' responses in referendums at the federal level?
What are some examples of case(s) that have been influenced by these factors? |
Referendum results are strongly influenced by our political culture. Eg. 'Satisfaction' vote: People who believe the Constitution has served us well so far and would rather it stayed intact.
Australians express strong support for the political system but generally have limited knowledge of its details - this lack of understanding results in unsuccessful referendums. Eg. 'No opinion' vote: Undecided voters resent the requirement to participate and vote 'no' as a result. 'Distrust' vote: People who see referendums as an avenue to further the power and interests of politicians.
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Satisfaction No opinion Distrust |
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What are some common characteristics between the successful Constitutional referendums?
What are some examples to back these up? |
Involved minor procedural change Eg. 1906 proposal on Senate elections 1977 proposal on retirement of Judges
Conferred benefits to the States Eg. 1910 & 1928 proposals on State debts
Continued existing benefits to voters Eg. 1946 proposal on Social Services
Were supported by almost universally held Australian values (ie. belief in 'fair go') Eg. 1967 proposal on Aboriginal citizenship 1977 proposal on Territorial votes 1977 proposal on casual vacancies |
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In summary: what makes referendums generally more likely to pass? |
Referendums are generally more likely to pass if they have bipartisan support, do not threaten States' rights and reflect broadly held views in the community. |
Bipartisan States Views |
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The most prominent Constitutional issue of the 1990s was the republic.
Why has support for this reform increased? |
1. The change in economic ties that reduced Britain to a minor trade partner
2. The increasing proportion of Australian population from mainland Europe and Asia
3. Political events and legislative changes including the 1975 constitutional crisis and the passage of the 1986 Australia Acts
4. The changing role of the members of the Royal family from a collective symbol of loyalty to 'celebrities' |
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How has formal Constitutional change occurred as a result of 'referral of powers'? |
Section 51 (xxxvii) of the Constitution allows States to transfers matters under their responsibility to the Commonwealth - but not the reverse. |
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What are some examples of a referral of powers? |
South Australia and Tasmania referred control of their non-metropolitan railways to the Commonwealth - ridding them of a drain on their finances
1975: Commonwealth exercised its constitution power over marriage and divorce to create the Family Court Needed a referral of powers to facilitate a settlement for the children of a marriage where the children were from a couple's previous relationships
Late 1990s: Victorian Government transferred its powers over industrial relations
2001: Commonwealth received power over the incorporation of new businesses - adding to their powers over operation of existing firms
2003: Three States referred powers to allow the Family Court to include the financial settlement of a divorce.
2003: Commonwealth's Criminal Code Amendment (Terrorism) Act required the States to refer powers
2008: Four states that share the Murray Darling basin transferred water policy in this area to the Commonwealth |
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How has formal Constitutional change occurred as a result of 'unchallenged legislation and cooperative arrangements'? |
The Commonwealth has enacted policies on national issues and in areas not in their jurisdiction without creating a challenge from the state.
Cooperative laws are often called mirror legislation. These have been passed to create national uniformity on many issues.
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What are some examples of unchallenged legislation or cooperative arrangements? |
Unchallenged legislation: Eg. Snowy Mountains scheme Creation of CSIRO Aviation throughout Australia New issues of intellectual property
Mirror legislation: Eg. National agreement on firearms (1996) |
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What is the purpose of 'Conventions and Commissions'? |
They have attempted to conduct a wide-ranging review of the Constitution since the 1970s |
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What are some examples of the impact of Commissions? |
Eg. Activity of the Constitutional Convention (1973-1983) and the Constitutional Commission (1985-1988) contributed to three successful referendums. **This only occurred in 1977 |
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What are some of the key strengths of the High Court changing the Constitution through interpretation? |
1. A matter can be dealt with when a case is brought before the court and an injustice can be rectified
2. High Court justices are experts in constitutional law and are therefore very capable of interpreting it
3. Acts as a check against abuse of power by States or Commonwealth
4. Keeps the Constitution relevant and up to date through interpretation |
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What are some of the key weaknesses of the High Court changing the Constitution through interpretation? |
1. Cannot change the words in the Constitution
2. Must wait for a relevant case to be brought before the courts before it can interpret the Constitution
3. A party bringing the case must have standing
4. It is expensive to bring a case to the High Court
5. May be conservative in its interpretation and therefore changes may not be made
6. Decision in a case may depend on the composition of the High Court - some justices are more conservative than others |
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What are the informal methods of Constitution change? |
Financial influence over State activities - Vertical fiscal imbalance - Tied grants |
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What was the significance of the 1975 Constitutional Crisis? |
Reinforced both existing monarchical and opposing republican sentiments
Raised the level of public debate about constitutional issues and the idea of a republic |
2 particular impacts |
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What arguments were proposed in support of a republic? |
1. The assertion of an Australian national identity
2. Replacing a tradition that symbolizes social hierarchy and privilege
3. Recognition of the people as the authority of government in Australia
4. Ensuring that the head of office is attainable for any Australian
5. Reflecting our changed international relationships |
5 main points |
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What arguments were proposed against a republic? |
1. The existing Constitution reinforces political stability = "If it ain't broke, don't fix it."
2. Link with Britain emphasizes our historical and cultural ties
3. Republic movement headed by Labor and 'corporatist elites' = little community support
4. Debate likely to cause division between States
5. Australia was already a 'crowned republic' (?)
6. Change would have unpredictable political effects |
6 main points |
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The High Court is Australia's superior court.
What is the role of the High Court? |
1. Has original jurisdiction over disputes concerning the application of the Australian Constitution
2. Power over matters set out in Section 75 of the Constitution
3. Appellate jurisdiction over all other Australian law (both State & Federal)
4. Has the authority to select which non-constitutional disputes it will hear |
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Define original jurisdiction. |
The disputes that a court hears on their first presentation. |
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Define appellate case. |
Cases that have been appealed from a lower court. |
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What are the functions of the High Court? |
1. Determining appeals from decisions of any Australian Court, Federal or State (Section 73)
2. The interpretation of the Constitution (Section 76)
3. Other areas specified in Section 75 of the Constitution |
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What was the impact of the High Court in Phase 1 (1903-1920)? |
Decisions mostly bolstered the legislation authority of the States
'Intentionalist' or 'originalist' phase of the court
Examples: Railway Servants Case - applied principles of 'implied prohibitions' to set narrow limits on Commonwealth powers |
Intentionalist/originalist |
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What was the impact of the High Court in Phase 2 (1920-1942)? |
The Court's interpretations were literalist - based on the 'natural meaning' of the words of the Constitution - not the writers' intentions.
Examples: Engineers Case (1920) - The Justices supported the authority of the Commonwealth Arbitration Commission to determine the conditions of workers employed in commercial activities by the Western Australian Government Railways |
Literalist |
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What was the impact of the High Court in Phase 3 (1942-1970)? |
Moved away from broad principles of constitutional interpretation to an approach of legalism - cases tended to be decided on the 'black letter of the law' - could favour either States or Commonwealth.
Examples: State Banking (1947) - Constitution gave too broad a meaning to part of section 92 so the Court determined this prevented the Commonwealth from passing legislation that directed the States' banking policy |
Legalism |
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What was the impact of the High Court in Phase 4 (1970-1996)? |
Adopted a broader interpretation of Commonwealth powers, both extending previous principles and breaking new ground.
Eg. Tasmanian Dams (1983): Commonwealth granted the ability to prevent the Franklin River from being dammed as its World Heritage listing was viewed as a component of the Commonwealth's 'external affairs' power (51 xxix). |
Activism Dams |
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WorkChoices (2006): What were the new laws? |
- Overrode State laws to create a national industrial relations system
- Based wages and working conditions on contracts directly negotiated between employers and employees
- Exempted companies with less than 101 employees from unfair dismissal laws
- Outlawed 'pattern bargaining' - single employment contracts covering many employees - and placed extensive restrictions on industrial action |
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WorkChoices (2006): Who challenged the Act? |
All six State governments along with a number of peak union bodies challenged the Amendment in High Court |
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WorkChoices (2006): What was the verdict? |
High Court found - by a majority of 5:2 - that the laws were constitutional
The corporations head of power (Section 51 xx) allowed the Commonwealth to pass laws "...prescribing the industrial rights and obligations of corporations and their employees and the means by which they conduct their industrial relations..." |
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WorkChoices (2006): What were the concerns following this decision? |
This broad reading of the - Constitution could allow the Commonwealth to legislate in any areas involving corporations
Ie. Areas of State residual power such as education and health
- Both Justices who dissented felt that this reading contradicted the federal intention of the Constitution as a whole |
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Define the term 'legalism'. |
An approach to judicial decision-making that emphasizes judicial restraint
- Strictly adhere to the literal meaning or the 'black letter of the law' |
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Define the term 'activism'. |
The view that from time to time it is reasonable for a judgement of a court to depart from precedent and existing legal principles to bring the law up to date with community values. |
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