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Terms in this set (12)
The means by which the Australian Constitution acts as a check on parliament in law-making
Divides law making powers into three sections;
- Residual powers: those law-making powers left with the states at the time of federation. The Commonwealth Parliament has no authority over to make laws in these areas, e.g legalising abortion
- Concurrent powers: Those law-making powers that are shared by the Commonwealth and the state parliaments, e.g marriage & divorce
- Exclusive powers: Law-making that are held only by the Commonwealth Parliament, and only that parliament can create laws in these areas (the states cannot create law in those areas) e.g currency
The requirement for a double majority in a referendum
- Where the majority of voters in the whole of Australia must vote yes
- Where the majority of voters in a majority of states must vote yes
- Constitution cannot be changed without the approval of a majority of voters
- Protects smaller states
- Hard to achieve - public may not understand the proposal
- Important often cannot take place due to the difficulty of achieving the double majority
The significance of 1 referendum in which the Australian people have protected or changed the Australian Constitution
The Aboriginal Case
The significance of one High Court case which has had an impact on the division of constitutional law-making powers
The Brislan Case
- Defendant charged with not holding a licence for her wireless set- a requirement by federal law
- Challenged in court on basis that wireless set is not an 'other like service'
- S51 of the constitution gives the commonwealth power to make laws with respect to 'postal, telegraphic, telephone and other like services'
- Example of how a broad interpretation by the high court of the commonwealths powers can shift the division of law-making power away from the states and toward the commonwealth.
- Since the 1920's, the High Court has consistently favoured a broadening of the commonwealths law-making powers when ruling on these types of cases.
The significance of one High Court case interpreting S7 and S24 of the Australian Constitution
The Roach case
- Defendant in prison for 6 yrs
- Law used to say anyone serving a sentence for more than 3 yrs cannot vote
- Amendment to the electoral act said all prisoners are excluded from voting
- Right to vote taken totally
- High Court found amended law was not valid
- Law was changed and people could vote if their sentence was up to 3 yrs, Roach still couldn't
- The decision affirmed the right to choose our parliament under the structural protection of representative government in S7 and S24
An example of an international treaty on the interpretation of the external affairs powers
(S51) gives the Commonwealth power to make laws with respect to external affairs. The High Court has interpreted this power broadly, allowing the Commonwealth to pass legislation enacting it's obligations under international agreements, even in residual areas.
What is the impact of international declarations and treaties on the interpretation of the external affairs powers?
- Binding agreement between countries
- Can involve two (bilateral) or more (multilateral) countries
- Countries sign numerous treaties covering a variety of topics such as trade, the environment and human rights
What is a case that relates to external affairs
- Tasmanian Dams Case
- Federal Parliament signed a treaty to protect areas on the world heritage list and placed areas of TAS on it
- TAS passed a law to dam Franklin River but Federal Parliament passed a law saying 'NO'
- Went to High Court
- Was told that under S51 (external affairs), the federal parliament had the power even though the rivers is a residual power
- External affairs is a specific power used by the federal parliament
- Under S109, because the laws conflicted they said the federal law had to stop damming
- Meaning of external affairs extended to international treaties
- Changed balance of power by allowing the commonwealth to legislate on a previous residual power as long as a treaty was signed
Limitations on Federal Parliaments external affairs
- Bona Fide agreement- the agreement must be legitimate. The Commonwealth cannot enter into an agreement just so that it can make laws on a particular topic.
- Extending beyond the treaty- The Commonwealth can't legislate beyond what is required to fulfil its obligations under the relevant international treaty.
High Court interpretations
- The High Court has generally interpreted the constitution to give greater power to the Commonwealth parliament
- Doesn't change the words but interprets and gives meaning to the words
- Often settles disputes between state and federal parliaments
The right to vote
- The High Court has ruled that legislation under S7 and S24 cannot necessarily interfere with people's right to vote because if these sections did interfere, parliament may not be directly chosen by the people.
Implied freedom of political communication
- Implied freedom of political communication was established in 1992 by the High Court
- The constitution established a system of representative government
- Established through a number of High Court cases such as Lange vs ABC
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