Preparing for SAC 2B Monday 27 May 2013

Focus your revision on…  Restrictions on the power of the Commonwealth and the State Parliaments  The role of the High Court in interpreting the Constitution – including cases, and the impact on the division of powers  How the division of power between the States and the Commonwealth can be altered – and how effective these methods are  How effectively the Constitution protects the rights and freedoms of the Australian people – express rights, implied right, structural protections  Comparison between Australia and USA’s constitutional approach to the protection of rights

Structure  5 minutes Reading time  50 minutes Writing time  6 questions  20 marks total

Restrictions on the Commonwealth & the States

Restrictions on the Commonwealth  Section 116: The Cth cannot legislate to establish a state religion, limit the free exercise of a religion, set ways to observe a religion, or set a religious test for a Cth government job  S 92: The Cth cannot impose taxes on interstate trade  S 80: The Cth cannot remove the right to trial by jury for a federal indictable offence  Implied right to freedom of political communication: Cth cannot legislate to ban political advertising on an issue of public importance or relating to elections  Residual powers: The Cth cannot make laws in areas of residual power, outside of its specific powers, e.g. health or education as these belong to the States

Section 109 – Conflict between State and Commonwealth law

Cases that resulted in a change to the division of powers  In Brislan’s case the High Court held that the specific power of “telegraphic, telephonic and other like services” included the power to legislate regarding radios. The Cth gained power at the expense of the States because new communications technologies not mentioned in the Constitution could be controlled by the Cth as they were invented.  In the Tasmanian Dams Case the High Court found that the federal “external affairs” power allowed the Cth to legislate to implement the terms of any treaty, even if that treaty covered areas of residual power. The Cth gained power at the expense of the States because any residual power could be used, as long as implementing a treaty was the basis of the legislation

How effective are Referendums and Referrals?

Referendum (advantages)  It is the main example of direct democracy in this country, because it gets most people involved and voting on how our legal system should operate  It forces people in Australia to find out about certain fundamental legal issues, instead of letting parliament decide for us  The double majority requirement ensures that the change must not only be acceptable to the majority of voters but it must also not unfairly disadvantage the smaller states  It is the only way in which the wording of the Constitution can be changed. This is the clearest way to change the division of power because the new power or restriction on power is physically and unambiguously written in the Constitution

Referendum (disadvantages)  It is a long, complex and difficult process which only the Cth can initiate  Difficult to get bipartisan support – the support of both major political parties – without this, the referendum is unlikely to succeed  Double majority requirement is a disadvantage because the public may not have enough understanding of the issues to know which way to votes

Referral of powers (advantages)  This involves the State and Commonwealth parliaments working together to decide what the best allocation of power should be for the country’s laws to be made effectively  This allows for changing circumstances in the community to be addressed more quickly and easily (than referendum). For example, after September 11, 2001 terrorist attacks, the states referred power to the Cth to pass terrorism legislation  The states can limit the powers referred to the Cth, by placing a sunset clause (time limit on the referral) or other conditions

Referral (disadvantages)  There is some uncertainty in this area – unclear whether the powers referred by the states then become an exclusive power of the Cth or concurrent power  Relies on the States and Cth working together, difficult to achieve because they compete for power  It undermines the referendum process – does not democratically involve the people

Constitution – comparing Australia and USA  Similarities:  The rights are entrenched in the Constitution (they are only able to be changed by referendum, difficult process)  Similar law-making bodies and processes (side note)  The rights are fully enforceable (the High Court in Australia and the Supreme Court in the USA have the power to interpret and apply those rights, declare laws valid/invalid)  Differences:  Bill Rights (USA) (10 amendments to the Constitution) is a comprehensive document stating the rights that all Americans have. In contrast Australia does not have one, our express rights (five) are scattered throughout our Constitution.