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17 Cards in this Set
- Front
- Back
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Division of law-making powers
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Specific: Listed in S51, either exclusive or concurrent, examples include: trade and commerce S51(i), taxation S51(ii) and external affairs (xxix.)
Exclusive: Specific Powers for only the Commonwealth, listed in S51 but made exclusive by other sections of the Constitution. Examples include; S51 (xii) gives the Commonwealth Parliament power to make laws regarding currency, coinage and legal tender; S115 declares that “a state shall not coin money,” thereby making this power exclusive. Concurrent: Specific powers shared by the states and the Commonwealth, listed in S51. If there are inconsistencies, S109 applies. Examples include taxation (s51(ii)) bankruptcy (s51(xvii)) and marriage (s51 (xxi).) Residual power: Law-making powers of the states only, as they were not given to the Commonwealth Parliament at Federation, so they remained with the States. Examples include education, public transport and health. |
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Section 109
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Under S109 of the Constitution, if there is a conflict between state and Commonwealth laws in an area of concurrent law-making power, the Commonwealth law will prevail, to the extent of the inconsistency between the two pieces of legislation. The provisions of the state law that are inconsistent with the Commonwealth law will be invalid. For example, if the Commonwealth law states that you must do X and the state law states that you must not do X then that section of the state law will become inoperable. It is impossible to obey both laws at the same time, so the inconsistent part of the state law is invalid.Marriage is an area of concurrent power. The Marriage Act 1958 (Vic.) provided laws for a valid marriage. When the Commonwealth Parliament passed the Marriage Act 1961 (Cth), it rendered the pre-existing Victorian legislation largely redundant because it covered the same areas and the Commonwealth law prevails. Since this time the inconsistent areas of the Victorian Act have been repealed.
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McBain case
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Name of the case Inconsistency and John McBain v. The State of Victoria & Ors [2000] FCA 1009
Year of the case 2000 Facts of the case Dr John McBain, a specialist IVF doctor, was directly affected by the inconsistency in the legislation. By denying single or lesbian patients access to the IVF program, he was meeting the requirements of the Victorian Infertility Treatment Act but, at the same time, contravening the Commonwealth Sex Discrimination Act. He had previously been fined under the Commonwealth Sex Discrimination Act. Under the Victorian Infertility Treatment Act it was an offence for a doctor to treat a woman who is not married. The Commonwealth Sex Discrimination Act makes it an offence to discriminate against a person on the basis of, among other things, marital status.In order to argue the inconsistency, McBain was required to show that a specific patient was being denied the service, in this case Leesa Meldrum.Outcome of the case The Federal Court upheld McBain’s argument that the Victorian marital status requirement was inconsistent with the Commonwealth provision, and that, on the basis of S109 of the Constitution, the Commonwealth provision should prevail.Therefore, the discriminatory section of the Victorian law was invalid. Impact of the case The effect of this decision was that couples could not be denied IVF services on the basis of marital status and therefore single and lesbian patients should be allowed access to the services. Section involved Section 109 |
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Restrictions on State Parliaments
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The states cannot pass laws on areas that have been made exclusive to the Commonwealth Parliament or areas that are by their nature exclusive to the Commonwealth Parliament.
S114 Raising military forces (exclusive power) S115 Coining money (exclusive power) S90 Customs (exclusive power) S109 Concurrent powers S92 Trade within the Commonwealth must be free |
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Restrictions on Commonwealth Parliament
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S106, S107, S108 Guarantee of state powers S116 Freedom of religion
S117 Rights of residents in states S99 Preference S92 Free trade S51 (xxxi) Acquiring property S51 (ii) No discrimination in taxation S128 Changing the Constitution Principle of the separation of powers High Court interpretation |
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Referendums
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Constitutional alteration bill passed by both houses or one house twice (after 3 months) by an absolute majority. The GG may submit the proposed change to the people if it is rejected twice by the second house after being passed by the first.
Constitution can only change after successful referendum (compulsory vote by all electors who are required to vote in the House of Reps). Referendum must be put to the people between 2 and 6 months of being passed by parliament. Before referendum, AEC sends information explaining change and arguments for and against. Double majority provision: A majority of voters in the whole of Australia and the majority of states must vote yes for a change to occur (territories not included) If a proposed change affects the proportionate representation of any state in either house of the Commonwealth Parliament, a majority of voters in that state must agree to the change before the change can take place. If successful, it is presented to the GG for Royal Assent. The impact of a successful referendum is that the law-making power of the states and Commonwealth parliaments may be altered. Not all successful referendums have altered the division of powers; for example, the referendum in 1977 that provided for the compulsory retirement age of 70 years for judges had no impact on law-making powers. Usually more restrictions, due to S109 |
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1967 Referendum
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The Federal Parliament passed the Constitution Alteration (Aboriginals) Act 1967 (Cwth.)A ‘yes’ case was put to the people, but there was no ‘no’ case. However some members of parliament were against the change on the grounds that it would be an erosion of state powers.The question posed was: “To enable the Commonwealth to enact laws for Aborigines.To remove the prohibition against counting Aboriginal people in population counts in the Commonwealth or a State.”The referendum received the support of 90.77% of voters - the highest ‘yes’ vote ever recorded in a federal referendum and received a majority of ‘yes’ votes in all 6 states. Thus, the double majority provision was satisfied.
The wording of the constitution changed: Section 51(xxvi) was changed by deleting the exclusion of Aborigines: “The people of any race, (other than the Aboriginal race in any state) for whom it is deemed necessary to make special laws.”Section 127 was deleted. “In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives should not be counted.” The responsibility for Aboriginal affairs was now a concurrent power. Increase in the law-making power of the Commonwealth Parliament. |
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Factors affecting success of referendums
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Timing
Double Majority: 13/44 had majority, only 8 successful Lack of Bipartisan support Confusing information Voter Conservatism: Republic referendum failed as people did not agree on model and the potential impact Opposition in the community Erosion of states rights: All 17 attempts to increase Commonwealth economic power have been rejected Cost: 1999 cost $66 million |
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Analysis of referendums
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Double Majority, strength and weakness
Length One house can vote twice Compulsory Controlled by Commonwealth Cost Low Success rate Requires bipartisan support |
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Role of High Court
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Act as guardian of constitution
Keep Constitution up to date Check and balance on injustices Gives meaning to words and applies to everyday situations |
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Analysis of High Court interpretation
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Judges
Success rate Prevent abuse of power Favoritism Cases are expensive and time-consuming Cannot change words of Constitution |
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Brislan case
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R v. Brislan; ex parte Williams (1935) 54 CLR 252
Mrs Brislan was charged under the Wireless Telegraphy Act 1905 (Cwth) with having a wireless without holding a license for it, as was required by the Act. She challenged the validity of the Act, claiming that the Constitution did not give the Commonwealth Parliament power to make laws about wirelesses. Section 51 - “postal, telegraphic, telephonic, and other like services.” “Other like services” included wirelesses, as they were a communication device like the other devices in the section. Therefore the Wireless Telegraphy Act was valid. Extended the meaning of Section 51(v), thereby giving more legislative powers to the Commonwealth Parliament, and brought the section up to date with current needs. Any state laws could not be inconsistent with Commonwealth laws, or S109 would apply. |
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Tasmania Dams case
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The Commonwealth of Australia & another v. The State of Tasmania & others (1983) 46 ALR 625
The Tasmanian Parliament passed the Gordon River Hydro-Electric Power Development Act 1982 (Tas.) to set up the hydroelectric power scheme and the Franklin River dam. Australia-wide protests occurred in opposition to the dam, causing the Commonwealth Parliament to seek to intervene in an area of state power. The Commonwealth Parliament passed the World Heritage Properties Conservation Act 1983 (Cwth) to prevent the clearing, excavation and building of a dam at the Gordon and Franklin Rivers, Tasmania, as this area was included in the World Heritage List. The aim of the act was to protect the cultural and natural heritage of the area, as suggested by the UNESCO Convention. The state of Tasmania, wishing to dam the site for a hydro-electric scheme, claimed that the Commonwealth had no jurisdiction to pass such a law; however, the Commonwealth argued that it could make laws on areas of national concern due to the “external affairs” power. S51 (xxix)- “external affairs.” High Court decided that the external affairs power gave the Commonwealth Parliament power to make laws to fulfil Australia’s obligations under international treaties- in this case the UNESCO treaty. Therefore the act was valid and the Commonwealth was able to stop the Tasmanian Government from constructing the dam. Extended the meaning of the external affairs power to include law-making necessary to uphold obligations under an international treaty. This greatly expanded the law-making powers of the Commonwealth Parliament, as the Commonwealth was able to legislate on an area that was previously a residual power. The Commonwealth has used the external affairs power to create a variety of laws to uphold international treaties, such as the controversial Human Rights (Sexual Conduct) Act 1994 (1994) |
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Referral of law-making powers
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S51(xxxvii) of the Constitution gives the Commonwealth Parliament power over any matters referred to it by the states, but that power can only operate in those states that have referred their power to the Commonwealth.
States pass Act giving power to Commonwealth, Commonwealth passes Act accepting power. Changes division of law-making powers. |
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Referral of power example
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The Fair Work (Commonwealth Powers) Act 2009 (Vic.) referred some industrial relations powers to the Commonwealth, in order to allow more Victorian workers to be covered by FairWork - the federal government’s new industrial relations scheme. Without this referral, the Commonwealth Parliament would only have been able to legislate in workplaces where the employer was a constitutional corporation, thereby excluding small businesses, partnerships, non-trading community organisations and public sector organisations (around 30 per cent of the Victorian workforce.) The referral, which replaced an earlier referral made in 1996, ensured that most Victorian employees could be covered by the award safety net and minimum wage protection of FairWork.
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Analysis of referral of power
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Consistent laws
Expertise No Constitutional amendments Centralises law-making power Commonwealth can refuse Some states may choose not to Uniform laws can be passed without referral Areas of uncertainty |
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Role of constitution |
Facilitate the division of law making powers Gives the high court to interpret the constitution Provides for direct election Legal framework and structure for commonwealth parliament |
