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A constitution is a set of rules declaring the nature, functions and limits of government.

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The Commonwealth of Australia Constitution Act 1900 (UK) - the Commonwealth Constitution

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The Role of the Commonwealth Constitution

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The Role of the Commonwealth Constitution

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- Facilitate the division of law-making powers
- Provide a legal framework for the creation of the Commonwealth Parliament and outline the structure of the Commonwealth Parliament
- Provide for direct election
- Give the High Court the power to interpret the Constitution

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The states can refer or give any of their residual law-making powers to the Commonwealth. This may occur when the states find there is an area of law-making that would be better under Commonwealth jurisdiction because the law needs to be uniform across the country.

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S75 and S76 of the Commonwealth of Australia Constitution Act 1900 gives the commonwealth parliament the power to establish the High court with the jurisdiction to hear disputes arising under the Constitution or its interpretation.
The High Court cannot change the wording of the Constitution but it can change the way the words in the Constitution are interpreted.

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- The Constitution outlines the division of law-making powers between the state parliaments and the Commonwealth Parliament. -This division of powers places restrictions on the law-making powers of the Commonwealth and the states.
-  State and Commonwealth parliaments are supreme law-making bodies within their own jurisdiction (area of power); that is, they are law-making bodies that prevail over all other sources of law.
-They can change previous laws, make new laws and change laws made through the courts.

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Role of the High Court – (in interpreting the Commonwealth Constitution)

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Role of the High Court – (in interpreting the Commonwealth Constitution)

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* Act as a 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

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exclusive powers-

- An exclusive power is a power which can only be exercised (that is, exclusively or solely) by the

Commonwealth Parliament.

-  Some of the specific powers listed in S51 of the Constitution are exclusive to the Commonwealth Parliament. This means that only the Commonwealth Parliament can make

- AREAS OF EXCLUSIVE POWER

S51 ( iii) customs and excise

(vi) naval and military forces

(xii) coining money

(xix) naturalisation and aliens

- other sections of the Constitution. For example, S51(xii) gives power to the Commonwealth Parliament to make laws relating to coining money

Exclusive powers contained in S52

Section 52 contains a small list of powers that are also exclusive powers of the Commonwealth

Parliament.
concurrent powers-

- Concurrent powers are law-making powers over which both the Commonwealth Parliament and

the state parliaments share jurisdiction (shared powers).

AREAS OF CONCURRENT

POWER

S51 (i) trade

(ii) taxation

(xxi) marriage
The impact of S109

Section 109 of the Constitution provides a mechanism to resolve conflict and inconsistencies between state and Commonwealth laws that can sometimes arise in the area of concurrent powers.

If the Commonwealth Parliament and a state parliament make a law on the same area of law (under concurrent powers), and the state law is inconsistent with the Commonwealth law, then there

is conflict between the state and Commonwealth legislation.

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Section 51, subsection 29 – allowed parliament to make laws on external affairs/power to enter international treaty.

The Commonwealth government opposed the arguments put forward by the Tasmanian government relating to why it should be permitted to build the dam on the Franklin River, as they had the power to intervene and prohibit work likely to damage or destroy Australia’s national heritage, under S51 (xxix) of the Constitution.

The decision in the High Court in this case was that all aspects of Australia’s relationship with other countries are included in the external affairs power, and because the Franklin River area was covered by an international treaty, it came under the external affairs power – meaning that the damming of the Franklin River was stopped.

The Commonwealth parliament was able to move into law making area previously left with the states, which increased the Commonwealth’s law-making power and took power away from the state’s power.

It was the first case to interpret its law-making powers in regards to external affairs, under an international treaty.

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STRENGTHS & WEAKNESSES OF HIGH COURT INTERPRETATIONS AS A MEANS OF CHANGING LAW-MAKING POWERS

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STRENGTHS & WEAKNESSES OF HIGH COURT INTERPRETATIONS AS A MEANS OF CHANGING 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.

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Factors Effecting Success of Referendum 

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Factors Effecting Success of Referendum 

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- timing
-double majority
-lack of bipartisan support
-confusing information
-voter conservatism
-opposition in the community
-erosion of state rights
-high cost

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The law-making powers of the state parliaments and the Commonwealth Parliament are divided into:
- Residual powers
- Specific powers

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Exclusive powers of the Commonwealth Parliament 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) The states are prohibited from raising naval and military forces.
- S115 Coining money (exclusive power) The states are prevented from coining money
- S90 Customs (exclusive power) The states are prevented from levying customs and excise duty
- S109 Concurrent powers State power is restricted by the fact that in areas of concurrent power, where there are inconsistencies between state and federal legislation, commonwealth law will prevail.
- S92 Trade within the Commonwealth must be free This amounts to a prohibition on trade restrictions between states

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The impact of the referral of law-making powers is that there is a change in the division of powers between the states and the Commonwealth in favour of the Commonwealth.

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-44 proposals since 1901
-only 8 accepted

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Law making left with the states at the time federation.
- Not listed in the constitution

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The powers that are set out specifically in the Constitution are called specific powers. These powers were given to the Commonwealth Parliament under the Constitution.

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- Is a referral of powers able to be revoked?
- Is a referral of powers exclusive?

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An area where there has been a referral of powers is that of ex-nuptial children in family law matters. The need for custody battles over ex-nuptial children to be heard in the family court has lead some states to refer their powers in this area to the Commonwealth Parliament.

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Evaluate one method of changing the division of law making powers from the states to the Commonwealth. In your evaluation discuss the strengths and weaknesses of that method? (6 marks)

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- people can have their say
- protection of smaller states
- protection of the constitution
- compulsory vote
- change in the division of law-making powers

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To change Australia's Constitution, you need more than just a majority. To pass a referendum, the 'yes' vote has to get a double majority. This means two things have to happen:

1.   There has to be a national majority: 50 per cent, plus at least one, of the total votes across Australia has to be 'yes'. All the votes from all the States and Territories are included.

2.   There has to be a majority of States (this was introduced to protect the interests of the smaller states): 50 per cent, plus at least one, of the total votes from the six States has to be 'yes'. This means that at least four States have to vote 'yes'. Only States are included in this count, not Territories.

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A vote of the people in which an entire electorate is asked to either accept or reject a proposed change in the wording of the constitution

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To what extent are state parliaments supreme law making bodies? Discuss in relation to the restrictions on state parliaments.

- own jurisdiction (area of power)
- prevail over all other sources of law
- Can change previous laws and make new laws
- Restricted in areas of concurrent powers because Commonwealth prevails
- Restricted in areas of exclusive powers as Commonwealth has full jurisdiction

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- conservative
- lack of trust and understanding
- double majority
- timing and costly

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Explain how the division of power between the state parliaments and commonwealth parliament can be changed through the process of holding a referendum? (4 marks)

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Evolving interpretations of the Constitution by the High Court have resulted in stronger law-making powers for the Commonwealth, without any changes to the words of the Constitution.

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Using an example, explain the power that the High Court possesses when interpreting the constitution

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An exclusive power is a power which can only be exercised by the Commonwealth Parliament. This means that only the Commonwealth Parliament can make laws in these areas; for example, defence.

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Concurrent powers are law-making powers over which both the Commonwealth Parliament and the state parliaments share jurisdiction. For example, the power to make laws in relation to taxation is given to the Commonwealth Parliament, but state parliaments can also levy taxes.

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Case study: High Court v. Tasmanian Dam case

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Case study: High Court v. Tasmanian Dam case

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In 1978, the Hydro-Electric Commission, then a body owned by the Tasmanian government, proposed the construction of a hydro-electric dam on the Franklin River, in Tasmania's rugged south-west region. The dam would have flooded the Franklin River. In June 1981 the Labor state government created the Wild Rivers National Park in an attempt to protect the river.

In May 1982, a Liberal state government was elected which supported the dam. The federal Liberal government at the time, led by Malcolm Fraser, made offers of compensation to Tasmania, however they were not successful in stopping the dam's construction.[1]

In November 1982, UNESCO declared the Franklin area a World heritage site. During the 1983 federal election, the Labor party under Bob Hawke had promised to intervene and prevent construction of the dam. After winning the election, the Labor government passed the World Heritage Properties Conservation Act, 1983 (Cth),[2] which, in conjunction with the National Parks and Wildlife Conservation Act 1975 enabled them to prohibit clearing, excavation and other activities within the Tasmanian Wilderness World heritage area.

The Tasmanian government challenged these actions, arguing that the Australian Constitution gave no authority to the federal government to make such regulations. In May and June 1983, both governments put their case to the High Court of Australia.[3]

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Explain, using examples, the distinction between the exclusive powers of the Commonwealth,

the concurrent powers of the Commonwealth and the states, and the residual powers of the

states. (6 marks)
- Residual power are powers left with the state at the time of federation
- exclusive powers are given to the Commonwealth parliament under section 51 and are made exclusive under other sections of the constitution eg. coining money
- concurrent powers are powers over which both the commonwealth and state parliament share jurisdiction eg. taxation

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Analyse the method of changing the wording in the Consititution. In your analysis discuss at least three strengths and three weaknesses of the process.