(Resource: Justice & Outcomes 12e – Beazer, Humphreys, Filippin 2012) Federalism Legal Studies 3C (Resource: Justice & Outcomes 12e – Beazer, Humphreys, Filippin 2012)

Federalism Federation – separate colonies coming together to form a single nation (Australia!) Watch the following clip and read textbook and complete the following questions: http://www.peo.gov.au/multimedia/videos.html Page 102 of textbook How were powers divided in Australia pre 1900s? Why was federalism adopted? How did the constitution divide powers in Australia?

Federal system of government in Australia Federal system: law making powers are divided between a central government (federal government ) and states Under a federal system there is shared sovereignty of law making powers by different levels of government (sovereignty means jurisdiction, power, supremacy, authority) Federal State Local Council

Subsidiarity “Subsidiarity suggests that smaller, hierarchically ‘‘lower’’ bodies are generally better capacitated to address individual and social needs, are often the most appropriate agents to address such needs, and ought usually to be given priority in doing so…Essentially, functions that are proper to smaller entities ought not to be absorbed by larger bodies.” (Golemboski, D. (2015) ‘Federalism and the Catholic Principle of Subsidiarity’, Publius: The Journal of Federalism 45 (4): 526-551, at p. 528). For example, these is no point putting local councils in charge of national defence;

Who does what?

Constitution A constitution is a set of rules setting out the nature, functions and limits of government. The role of a constitution is to determine the powers and duties of the government. The role of the Constitution is to: 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 of the members of Parliament Give the High Court the power to interpret the Constitution

Division When the Australian Constitution came into effect of 1 January 1901, the power of the states to make laws was broken up so that some powers were: transferred to the Commonwealth (Australian Parliament) – exclusive powers of the Commonwealth shared with the Commonwealth – concurrent powers retained by the states – residual powers

Division of law-making power Specific powers (Given to the Commonwealth in the Constitution) Residual powers (Left with the states at the time of federation) Commonwealth power State power State power Concurrent powers (S51 of Constitution: Commonwealth and State Parliaments share jurisdiction over particular areas of law-making) Exclusive powers (S51 of Constitution: exclusive to Commonwealth Parliament)

Division of powers Conflict and inconsistencies: S109 Constitution provides a mechanism to resolve conflict and inconsistencies in areas of concurrent power (shared between Commonwealth and States). Under S109, if there is conflict between state and Commonwealth laws in an area of concurrent law-making power the Commonwealth law will prevail, to the extent of the inconsistency between the two pieces of legislation.

Reading and questions S109 example: ACT Marriage Act (handout) Textbook page 104 – 115 Briefly describe each of the categories of law making power. List the law-making restrictions on State and Federal Parliament

Constitution The Constitution http://www.peo.gov.au/multimedia/videos.html

High Court to interpret the Constitution The High Court is the highest court in the Australian judicial system. It was established in 1901 by Section 71 of the Constitution. The functions of the High Court are to interpret and apply the law of Australia; to decide cases of special federal significance including challenges to the constitutional validity of laws and to hear appeals, by special leave, from Federal, State and Territory courts Section 76 gives the Commonwealth Parliament the power to establish the High Court with the jurisdiction to hear disputes arising under the Constitution or involving its interpretation.

Radio Licence Case 1935 Until 1974 the federal government charged households a fee or listener’s licence for each radio set they owned. The fees were used to finance radio stations. In 1934 Dulcie Williams from Surry Hills in Sydney refused to pay the listener’s licence on the grounds broadcasting is not mentioned in the Constitution. In doing so she challenged the federal Parliament’s right to make laws about broadcasting. The case went to the High Court, who found in favour of the government based on section 51 (v) of the Constitution. This section gives federal Parliament responsibility for ‘postal, telegraphic, telephonic and other like services’. The Court decided broadcasting could be defined as being like a telegraphic or telephonic service because it involved sending communications over a distance by electronic means. The High Court’s interpretation of section 51 (v) means that today the federal Parliament can make laws about all forms of communication, including television and the internet.

Chaplains Case Read handout and answer the following questions: Q1: What was the challenge that Ronald Williams brought against the Federal Government in the High Court? Q2: Why was the case heard in the High Court? Q3: What were the two bases for the High Court challenge discussed in the article and explain the results of these challenges? Q4: What was the main consequence of this ruling by the High Court?

Altering of the division of powers Ways in which the division of law-making powers in the Constitution can be changed: A successful referendum, which changes the words in the Constitution High Court interpretation of the Constitution, which changes the meaning of words in the Constitution Referral of powers from the states to the Commonwealth Parliament, where law-making powers are given to the Commonwealth by the states High Court judgements in favour of Commonwealth creating vertical fiscal imbalance Complementary legislation and the role of Council of Australian Governments (COAG).

Referendum Under Section 128 of the Constitution, for a change to be made to the words in the Constitution, the people must vote on the change in a referendum. The impact of a successful referendum is that the law-making power of the state and Commonwealth Parliaments may be altered (but not in all cases). Process of changing the Constitution (S128) has three stages: Parliament The people Governor-General

3 stages of referendum Bill prepared and introduced to Parliament The people Governor-General Bill prepared and introduced to Parliament Either passed by both houses or Passed by one house twice Prior to referendum, information sent to each household Referendum is put to the people not less than two months, and not more than six months, after passed by Parliament Yes or No question asked To be successful, must satisfy the double majority provision: A majority of voters in the whole of Australia must vote ‘yes’ AND A majority of voters in a majority of states must vote ‘yes’ If proposed change receives a ‘yes’ vote as per double majority provision, it is then presented to the governor-general for royal assent.

Referendums Read page 116 – 121 Referendums (Take notes/highlight) especially on double majority provision Q1: Why could the Commonwealth have greater power after a successful referendum? Q2: How many referendums have been successful in Australia? Q3: Are people in the NT and ACT able to vote in a referendum? Explain

Referendums changing division of powers In some cases a referendum will change the division of powers between the States and the Commonwealth. This has generally given more law-making power to the Commonwealth Parliament. This results in the law-making power of the states becoming more restricted (as per S109).

Referendum reading and questions Read page 121, 126-128 (red edition) Q1: What are the four referendums that have increased the division of law making power in favour of the Commonwealth? Q2: What is the significance of S109 when referendums change the division of powers in favour of the Commonwealth? Q3: List and briefly explain the factors affecting the success of referendums

Evaluation of referendums Strengths and weaknesses Read page 130 (red edition) List and briefly explain the strengths and weaknesses of referendums

Referendums - 1967 1967 referendum (Aboriginals) Page 136 – 140 (blue edition) Page 122 – 125 (red edition) Legal Studies Preliminary reading (Blog) Investigate the 1967 referendum Outline: The two proposals included in the 1967 referendum The success of each proposal Reasons for the change to the Constitution Which sections of the Constitution were changed How did the division of powers altered The effort of the referendum http://www.abc.net.au/archives/80days/stories/2012/01/19/3411520.htm http://aso.gov.au/titles/documentaries/foundation-1963-1977/clip3/

High Court interpretation High Court cannot change the words of the Constitution but it can change the way words in the Constitution are interpreted. The interpretation can add meaning to the Constitution and can change the division of law-making powers between the States and the Commonwealth (not in all cases though). Read page 141 – 150 (blue edition) Read page 131 – 140 (red edition) Q1: What is the role of the High Court in interpreting the Constitution? Q2: Briefly outline the strengths and weaknesses of High Court interpretations

High Court interpretation Investigate the following cases (with suggested readings): Tas - Franklin Dams case 1983 http://envlaw.com.au/tasmanian-dam-case/ Textbook Koowarta case 1982 http://blogs.adelaide.edu.au/public-law-rc/2012/05/23/remembering-koowarta-v-bjelke- petersen/ https://www.humanrights.gov.au/guide-law-landmark-cases-under-racial- discrimination-act-1975 http://www.abc.net.au/7.30/content/2012/s3508700.htm Brislan’s case 1935

High Court interpretation Outline the following for each case: Title of the case Parties to the case Section of the Constitution being interpreted Reasons for interpretation (explain) Outcome of the interpretation (division of law-making powers)

Referral of powers The states can refer or give their residual law-making powers to the Commonwealth. S51(xxxvii) of Constitution gives the Commonwealth power over any matters referred to it by the states, but that power can only operate in those states that have referred their power to the Commonwealth. Read page 150 – 154 (blue edition) Read page 140 – 144 (red edition)

Referral of powers Q1: What is the process for referring of powers from the state to the commonwealth? Q2: Briefly explain the strengths and weaknesses of referral of powers Q3: Briefly explain the change in the division of power and the reasons why the power was referred in the following areas: Ex-nuptial children Property and financial matters of de facto couples Terrorism Murray-Darling Basin

Vertical fiscal imbalance – General Tas Government revenue 2015-2016 Total Revenue 2015-2016 $5 307.8 million

Vertical fiscal imbalance Financial dominance - through High Court decisions the Commonwealth has gained greater power in the area of taxation. The states rely on the Commonwealth for money. As a consequence the Commonwealth is able to exert influence over the states (First Uniform Tax case & Ha v State of NSW). Tied grants – The commonwealth can use its power under S96 to give tied grants to the states. Section 96 gives the Commonwealth the right to ‘grant financial assistance to any state on such terms and conditions as the Parliament thinks fit’ (The Roads case). The right to use money – Section 81 gives the right to use money for purpose of the Commonwealth and subject to the charges and liabilities imposed by the Constitution. This right has been used by the Commonwealth to influence areas of state power (Appropriations Power case).

Vertical fiscal imbalance First Uniform Tax Case: South Australia v The Commonwealth of Australia (1942) 65 CLR 373 The Roads case: Victoria v Commonwealth (1926) 38 CLR 399 Appropriations Power case Victoria v Commonwealth (1975) 134 CLR 338 Ha case Ha and another v The State of NSW; Walter Hammond and Associates Pty Ltd v The State of NSW & others (1997) HCA 34

Vertical fiscal imbalance case questions Page 148 – 150, 155 textbook (blue edition) Page 138 – 140, 144 (red edition) For each of the 4 cases answer the following questions: Who are the parties to the case? What legislation or section of the Constitution was interpreted? What was the dispute (main points of the case)? What was the interpretation by the High Court? What was the consequence of the interpretation for the States and Commonwealth (how have the division of powers altered)?

Complementary legislation Passing of legislation by the states that complement current Commonwealth legislation. Used when Commonwealth are unable to legislate due to a residual power or when states do not wish to refer legislative power to the Commonwealth. Creates consistency and uniformity between states Example gun laws and road rules

Complementary legislation Example road rules: The National Transport Commission (Road Transport Legislation – Australian Road Rules) Regulations 2006 was a national scheme to provide uniform road laws throughout Australia (provided under the National Transport Commission Act 2003 Cth). The Australian Road Rules project was aimed at establishing a model set of road rules that States and Territories across Australia could adopt in their local laws to create improved national uniformity and consistency

Complementary legislation Road safety legislation in each state: Traffic Act 1925 (Tas) Road Traffic Act 1961 (SA) Road Safety Act 1986 (Vic) Roads Act 1993 (NSW) Road Traffic Act 1974 (WA) Transport Operations (Road Use Management) Act 1995 (Qld)

Complementary legislation Example gun laws: Commonwealth able to legislate on importation of firearms and ammunition (Section 51 (i) Trade and commerce with other countries, and among the states). States able to legislate on sale, purchase, possession and storage of firearms (residual power). After Port Arthur 1996, laws were tightened including a ban on certain guns, licensing requirements, regulating gun registration and mandating safe storage of firearms along with training requirements for all gun owners (1996 National Firearms Agreement – states aligned their gun law). Reference: http://theconversation.com/martin-place-siege-review-makes-case-to-tighten-not-relax-gun-laws-37964

COAG (Council of Australian Governments) The Council of Australian Governments (COAG) is the peak intergovernmental forum in Australia. The members of COAG are the Prime Minister, State and Territory Premiers and Chief Ministers and the President of the Australian Local Government Association (ALGA). The Prime Minister chairs COAG. The role of COAG is to promote policy reforms that are of national significance, or which need co-ordinated action by all Australian governments (uniformity and consistency). COAG meets as needed, usually once or twice a year, though at times it has met up to four times in a year. COAG may also settle issues out-of- session by correspondence Reference – www.coag.gov.au

COAG (Council of Australian Governments) Task 1: Access the following website (www.coag.gov.au). Click on the Reform Agenda tab Select 2 areas of reform identified by COAG In a paragraph, summarise (in your own words) what the reform is about. What is the importance or significance of COAG’s involvement? Task 2: COAG leaders are attending a Leaders Retreat from 22 – 23rd July. Research this retreat and explain what will be discussed during this time.

COAG (Council of Australian Governments) Task 3: Watch the following clips on GST/Domestic violence and further research on the internet. http://www.abc.net.au/lateline/content/2015/s4218911.htm https://www.youtube.com/watch?v=_nsZtI3vRC0 http://www.abc.net.au/7.30/content/2015/s4218864.htm Summarise what the 2 issues are. What is the significance/important of COAG’s involvement in each issue? Do you think the proposed domestic violence national protection scheme may be classified as complementary legislation? Why?

Why does division of law-making alter? Issues that require a national response (environmentally, economically, socially) Growth of inter-relationship between the states and a greater need for a national response International pressure needing a national response High Court decisions which are significant and have long term consequences Limitations of dividing power generally (re; cost, conflict, lack of uniformity)

Strengths and limitations of federal system in Australia Federal not good at administration (pink batts case) GST debates (states want more money) States can be creative (bikie laws, drug/needle rooms) Not consistent laws, money issues, difficult to administer laws Handouts