Legal Studies Unit 3 Aos 2

Front 1

Specific Powers

Back 1

- listed in s. 51
- given to commonwealth parliament to make laws for peace, order and good government
- specific powers can either be exclusive or concurrent
- 41 powers listed in s. 51 including
- trade and commerce s. 51 i
- taxation s.51 ii
- external affairs s.51 xxix

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Exclusive Powers

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- only commonwealth can exercise laws in these areas
- eg coining money s. 115
- defence and military forces s. 114
customs and excise s. 90

Front 3

Concurrent Powers

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- both commonwealth and states have authority to pass laws as they are shared power; specific powers that have been given to commonwealth parliament to make laws but have not been made exclusive which means the power has never been taken away from the states.
- if inconsistency in laws made by commonwealth and states in area of concurrent power exist then s. 109 states commonwealth will prevail and inconsistency part of state law will be made invalid.
- eg taxation s. 51 ii
- bankruptcy s. 51 xvii
marriage s.51 xxi

Front 4

Residual Powers

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- not listed in constitution hence remain with the states
- s. 106- 108 protects laws and constitution of states
- eg criminal law, primary and secondary school education, public transport and health.

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Law making powers listed in the constitution

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- specific powers
- exclusive powers
- concurrent powers

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Law making powers that are not listed in the constitution

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-residual powers

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Restrictions on State powers

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- States cannot legislate in areas of exclusive powers
- State shall not raise or maintain any naval or military force (s. 114)
- State shall not coin money (s. 115)
- Imposition of duties of customs and excise is exclusive to C’th (s. 90)
- Areas of concurrent power, any state law that is consistent with a C’th law shall be declared invalid (s. 109)

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Restrictions on Commonwealth powers

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- Cannot legislate where states have residual power e.g. road rules
- Some sections of constitution specifically restrict C’th legislating in certain areas
- C’th shall not make any law for establishing, imposing or prohibiting any religion (s. 116)
- No discrimination against people based on their state of residence (s. 117)
- C’th shall not give preference to one state over another state (s. 99)
- C’th cannot restrict free trade between states (s. 92)
- Acquisition of property by C’th must be done on just terms (s. 51 (xxxi))
- Sections of constitution protect states from interference by C’th in their powers and laws e.g. ss. 106 and 108
- Constitution limits C’th power through s. 128 which states if Constitution is to be changed, that change must be put to referendum

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Examples of successful referendums

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- Extension of Commonwealth power to legislate on social services under s. 51 (xxiiiA) to include maternity allowance, child endowment and unemployment benefits (1946)
- Inclusion of Aboriginal people in the census and the law-making power of Federal Parliament, by changing s. 51 (xxvi) (1967)
- Retirement of judges from courts created by the Federal Parliament at age 70, through change to s. 72 (1977)
- Right to vote in constitutional referendums given to voters of the ACT and Northern Territory, to be included in the second part of the double majority provision in s. 128 (1977)

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Examples of unsuccessful referendums

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- The requirement that Senate elections be held at the same time as those for the House of Representatives (1977 and 1984)
- The recognition of local government in the Constitution (1988)
- Establishment of a republic (1999)

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Number of referendum proposals

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- Since 1901 there have been 44 referendum proposals – only 8 accepted, 36 unsuccessful

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Factors affecting the likely success of referendum proposals

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- Double majority provision – any change to wording of Constitution would only occur if there was overwhelming support for the change – rigid in demanding proposal satisfy more than half of voters and be accepted in at least four of six states; this provision is difficult to satisfy
- Bipartisan support from the major political parties – unless both Coalition and ALP support proposal it is difficult to pass as each political party will be urging supporters to vote in different way thereby dividing voting public so clear majority is difficult to achieve
- Level of voter understanding & complexity of proposal – lack of understanding of process and arguments for and against proposal as well as confusion surrounding proposal may lead to voters voting ‘no’ in order to main ‘status quo’ – what is known
- Resistance to change – voters may be conservative or reluctant to change especially if current Constitution is working well for them
- Timing – often held same time as general election to minimise voting costs however voters may be more concerned with who they will vote into govt than referendum questions thus they vote ‘no’
- Voter scepticism of Federal Parliament power – voters may see referendum as way of giving Fed Parl. more power thus vote no

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The way in which one successful referendum changed the division of law-making powers

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- Constitution Alteration (Aboriginals) Act 1967 (Cwlth) removed the exclusion of Commonwealth Parliament to make laws for people of the Aboriginal race, thereby giving them the right to make laws for all Australians
- Before 1967:
- Power to make laws in relation to Aboriginal people remained with the states
- Further change was desired to ensure Constitution did not discriminate against Aboriginal people
- S. 127 ‘in reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted’

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1967 referendum

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- Fed Parl passed Constitution Alteration (Aboriginals) Act 1967 (Cwlth)
- 27th May 1967 two referendum proposals put to people of Australia – first relating to nexis provision was rejected but referendum relating to Aboriginals was passed; question posed:
- 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.
- Referendum received support of 90.77% of voters – received majority of ‘yes’ votes in all six states and double majority provision satisfied

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Impact of referendum

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- S. 51 (xxvi) changed by deleting exclusion of Aborigines: ‘the people of any race, for whom it is deemed necessary to make special laws’
- S. 127 deleted
- Responsibility for Aboriginal affairs now a concurrent power – C’th involved in area that had been the responsibility of states
- Increase in law-making power of C’th Parliament

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The role of the High Court in interpreting the Commonwealth Constitution

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- S. 76 – High Court is the only court with power to interpret wording of Constitution and can only do this when dispute or case comes before it
- High Court decisions on constitutional powers do not change the wording of the Commonwealth Constitution but rather add meaning to it
- Alter the balance of power between Commonwealth and State Parliaments