1. U3O2: PART A LEGAL STUDIES

2. ROLE OF THE CONSTITUTION  The Commonwealth of Australia Constitution act 1900, which came in to force on 1 January 1901; a set of rules or principles guiding the way the nation is governed.  The Constitution;  Facilitates the division of law-making powers  Provides a legal framework for the creation of the Commonwealth Parliament  Outlines the structure of the Commonwealth Parliament  Provide for direct election  Give the High Court power to interpret the constitution

3. DIVISION OF LAW-MAKING POWER  Specific powers divided into  Exclusive powers (s51) outlines the specific powers that only the Commonwealth can use, eg. Immigration.  Concurrent powers (both state and Commonwealth  Specific powers that are both the Commonwealth and state parliaments can use, are called concurrent, that is, they are shared.  Section 109 of the constitution says that is a Commonwealth law and a state law are in conflict on the same topic, the Commonwealth Law overrides the state law  Residual powers left with the states  The state parliament as power to make laws regarding everything before Federation  Because s106-107 of the constitution allowed the states to keep their own power and constitutions at Federation, they only lost power to make laws regarding issues- such as immigration- that were given exclusively to the Commonwealth Parliament.

4. SECTION 109  Inconsistency of laws  When a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

5. RESTRICTIONS ON STATE PARLIAMENTS  Cannot legislate in areas of exclusive powers (under section 51), including  Raising military forces  Coining money  Customs  Cannot restrict free trade (Cole v Whitfield)  Where there are inconsistencies in Concurrent areas, Commonwealth Law must prevail (under section 109).

6. RESTRICTIONS ON COMMONWEALTH POWER  Guarantee of state powers  Cannot legislate in areas of residual powers  S116- prevented from legislating in regards to religion  S117- residents of states cannot be discriminated against  S99- cannot give preference to one state over another  S92- cannot restrict free trade  S51 (xxxi)- cannot acquire property without giving just terms  Cannot change the constitution without a referendum  Cannot form a body that combines legislative, executive and judiciary (separation of powers

7. CHANGING THE CONSTITUTION  Section 128 outlines the process of making a change to the constitution  Referendum  Majority of voters in whole of Australia, and majority of voters in a majority of states, must vote ‘yes’ to change  44 proposed referendums, 8 successful.  1967 Aborigines- allowed the commonwealth to legislate for Indigenous Australians (previously in the residual powers), and to include Indigenous Australians in the national census.

8. PROCESS The Referendum process is outlined in s128 of the Constitution A constitutional amendment bill is drafted and passed through both houses of federal parliament by a majority in each house The Governor-General then pits the bill to the people who are enrolled to vote for the House of Representatives It must receive a ‘double majority’- 50% +1 of the voters in favour and a majority in at least 4 out of 6 states. The Governor- General will then grant the bill royal assent, and the wording of the constitution will be changed.

9. FACTORS AFFECTING THE SUCCESS OF A REFERENDUM  Timing  Double majority  Information confusing  Voter confusion  High Costs of holding a referendum  Erosion of states’ rights (law-making power)

10. FACTORS AFFECTING THE FAILURE OF A REFERENDUM  Proposals that might cost people money or power get boted down through voter self-interest.  If a proposal is too complex or legalistic. People find it hard to understand and so they vote no.

11. EXAMPLE OF A SUCCESSFUL REFERENDUM  1967 referendum that allowed the Commonwealth to hold the law making power for indegenous Australians. This also allowed all Indigenous Australian to be included in the national census data.

12. THE ROLE OF THE HIGH COURT IN INTERPRETING THE CONSTITUTION  To act as guardian of the constitution  Keep the constitution up to date  Act as a check and balance on any injustices that may arise or any abuse of power  Give meaning to the words in the constitution and apply the constitution to everyday situations.  The High Court cannot change the wording of the Constitution, but under s. 76 of the constitution, the High Court can interpret the words and change their meaning. Ie. The Tasmanian Dams case- interpreted s51 (xxix) External Affairs to include international treaties.

13. STRENGTHS AND WEAKNESSES OF HIGH COURT INTERPRETATIONS

14. SIGNIFICANT HIGH COURT INTERPRETATIONS  Brislan’s case (1935)  Tasmanian Dam Case (1983)  First Uniform Tax case (1942)  Roads Case (1926)  Jones V Commonwealth (1965)  Appropriations Power Case (1975)  Newcrest Mining (WA) Limited v the Commonwealth of Australia (1997)  Ha and another v. The State of NSW (1997)  Work Choices case (2006)

15. REFERRAL OF POWERS  Referral of powers is the third way that the powers of the Commonwealth and the states can be changed (the others being statutory interpretation by the High Court and referendums under section 128).  An individual state can refer (hand over) some of their powers to the Commonwealth. Not all states need to agree.

16. CHANGING THE BALANCE OF POWERS IN THE CONSTITUTION  State parliaments have the power to change the division of power, but only in the Commonwealth Parliament’s favour  In S51 of the constitution the Commonwealth is given the power to make laws over any topic that a state parliament gives it. The laws will apply only to that particular state, and that state cant take it back.  Eg. In 1996 Jeff Kennet referred the power to make law regarding Industrial (Workplace) relations to the Commonwealth Parliament. This made it an exclusive power of the Commonwealth in relation to Victoria.  Terrorism.