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Division of Law-making powers Changing The Constitution

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1 Division of Law-making powers Changing The Constitution
The High Court Protection of Rights Lucky Dip 100 100 100 100 100 200 200 200 200 200 300 300 300 300 300 400 400 400 400 400 500 500 500 500 500

2 Division of Law-Making Powers 100
Why are law-making powers divided and outlined within the Constitution (50pts) and who decided this should be the case? (50pts) A: 50pts = During the time of federation Colonies were reluctant to give up all their law-making powers therefore law making powers relevant to Australia as a whole, were given to the Commonwealth and the rest remained with the states. This was done by outlining the division of law-making powers. (Not allowing any state or the Commonwealth to have total control) 50pts = The founding fathers of Federation created the Constitution

3 Division of Law-Making Powers 200
How are the powers between the States and the Commonwealth divided within the Constitution? (25pts for the name and a brief explanation of each) A: 25pts = Specific powers (Powers specifically listed in the constitution) 25pts = Exclusive powers (Powers made exclusive to the Commonwealth only) 25pts = Concurrent powers (Powers shared between Commonwealth & State) 25pts = Residual powers (Powers left with the States)

4 Division of Law-Making Powers 300
Explain section 109 of The Constitution A: Section 109 of the Constitution provides a mechanism for resolving inconsistencies that arise in the area of concurrent powers (150pts). Under S109 of the Constitution, if there is a 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 (150pts).

5 Division of Law-Making Powers 400
Explain how Specific powers and Exclusive powers are linked and provide an example A: 150pts = Specific powers are the powers that are specifically outlined in The Constitution. Some of these specific powers are made exclusive to the Commonwealth in other sections of the Constitution . 150pts = Eg.

6 Division of Law-Making Powers 500
Outline two restrictions placed on the states and two restrictions placed on the Commonwealth within the Constitution. Include sections in your response. A: Correct section number = 25pts Correct section explanation = 100 STATES 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, federal law prevails over state law, to the extent of the inconsistency, and the inconsistent state law is considered invalid or inoperable. S92 Trade within the Commonwealth must be free COMMONWEALTH S106, S108 Guarantee of state powers Guarantee that the states’ constitutions, powers and laws remain in force. Therefore, the Commonwealth Parliament cannot pass any laws that interfere with the states’ powers and laws. The Commonwealth cannot pass laws in areas of residual power. S116 Freedom of religion Prevents the Commonwealth Parliament from legislating with respect to religion, thereby guaranteeing freedom of religion. S117 Rights of residents in states Prevents the residents of a state being discriminated against. S99 Preference The Commonwealth cannot give preference to one state over another. S92 Free trade The Commonwealth cannot restrict free trade between states, although since the case of Cole v. Whitfield (1988) 62 ALJR 303, some restrictions on the movement of goods between states are allowed. S51(xxxi) Acquiring property The Commonwealth Parliament is prevented from acquiring property without paying just compensation. S51(ii) No discrimination in taxation Gives power to the Commonwealth to make laws with respect to taxation, but does not allow discrimination between states or parts of states. S128 Changing the Constitution S128 provides the mechanism for changing the Constitution.

7 Changing The Constitution 100
Fill in the blanks : The Commonwealth ___________ can ask people to agree to a change in the wording of the Commonwealth Constitution. Under section __________ of the Constitution, for a change to be made to the words in the Constitution, the people must be asked to ____________ on the change in a ___________. A: 25pts = Parliament 25pts = 128 25pts = Vote 25pts = Referendum

8 Changing The Constitution 200
What impact does a successful referendum have? A: The impact of a successful referendum is that the law-making power of the states and Commonwealth parliaments may be altered (100pts) and the wording of the constitution may change (either added or deleted). (100pts)

9 Changing The Constitution 300
Explain the double majority process A: A majority of voters in the whole of Australia (including the territories) must vote ‘yes’. (150pts) AND A majority of voters in a majority of states must vote yes to the proposed (150pts)

10 Changing The Constitution 400
What factors hinder the success of a referendum? (need four out of eight – 100pts each) Timing Double majority success lack of bipartisan support Confusing information Voter conservatism Opposition in the community Erosion of state rights High cost of holding a referendum

11 Changing The Constitution 500
Explain the process for changing the Constitution A : 20pts for each box

12 The High Court 100 What sections of the Constitution are important to the High Court? A: The High Court was established under S71(50pts) of the Commonwealth of Australia Constitution Act. S76 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 (50pts).

13 The High Court 200 Name (50pts) and briefly explain (50pts) two cases where the High Court interpreted the Constitution. What was the wording being interpreted for each? (100pts) A: Brislan Case (“other like services”) Tasmanian Dam Case (“external affairs)

14 The High Court 300 What is one strength and one weakness of the high court as a method of interpreting the Constitution? (150pts each) A:

15 The High Court 400 What is the role of the High Court in interpreting the Constitution? A: 100pts = to act as guardian of the Constitution 100pts = to keep the Constitution up to date 100pts = to act as a check and balance on any injustices that may arise or any abuse of power 100pts = to give meaning to the words in the Constitution and apply the Constitution to everyday situations

16 The High Court 500 Explain how the interpretation of the Constitution can impact on the division of law making powers using an example. A: Whenever the High Court is called on to interpret any section or word, the interpretation adds meaning to the Constitution and can change the division of law-making powers between the states and the Commonwealth. In most instances High Court decisions have led to a shift of law-making power from the states to the Commonwealth. However, not all the early decisions favoured the Commonwealth. Examples – Brislan or Tasmanian Dams Case Explanation = 250pts Example = 250pts

17 Protection Of Rights 100 Fill in the blanks:
Australia is the only western nation that does not have a national ____ __ ______. In Australia, rights are mainly protected by a __________ and _________ _____approach. However, there are some rights protected under the _______________. A: 25pts = Bill Of Rights 25pts = Legislation 25pts = Common Law 25pts = Constitution

18 Protection Of Rights 200 List the five express rights outlined in the Australian Constitution and include the section numbers. (20pts = section & 20pts = section number) A: freedom of religion (S116) free interstate trade and commerce (S92) not be discriminated against on the basis of the state where you reside (S117) receive ‘just terms’ when property is acquired by the Commonwealth (S51(xxxi)) trial by jury for indictable Commonwealth offences (S80).

19 Protection Of Rights 300 Define:
Structural protection of rights (100pts) Express rights (100pts) Implied rights (100pts) A: The structural protection of rights refers to the protection of rights contained in the structure and text of the Commonwealth of Australia Constitution Act 1900 (UK), which provides indirect protection of the rights of Australians in their dealings with the Commonwealth Parliament. Express or explicit rights are rights that are expressly referred to in a constitution, bill of rights or similar document. Some express rights are entrenched in a constitution. This means they cannot be easily changed by an act of parliament. Express rights are also referred to as explicit rights. Implied rights are rights that are not expressly referred to but are read into a constitution by implication.

20 Protection Of Rights 400 SIMILARITIES DIFFERENCES
List two similarities and two differences between Australia and South Africa’s protection of rights. SIMILARITIES DIFFERENCES Both have entrenched rights Australia has 5 express rights where South Africa has an extensive list Rights can only be altered or removed by amending the constitution. South Africa does not use a referendum to alter their constitution. Individuals or groups can bring a complaint that an act infringes on their rights. In Australia the Individuals or groups can bring a complaint only if they were directly affected A court can find that a section of an act is unconstitutional because it contravenes one of the express rights and therefore the relevant section of the act is invalid. The list of protected rights in South Africa includes economic, cultural and social rights. Australia does not have these. All rights are fully enforceable by the courts. Australia does not have a Commonwealth Bill of Rights Parliament can change or amend the offending act. The Bill of Rights in South Africa provides that parliament can limit these rights when it is ‘demonstrably justified in a free and democratic society’. There is no similar limitation in Australia. In both countries, citizens are protected by the principle of separation of powers. Under this principle, the High Court is a separate independent body. 100 pts for each.

21 Protection Of Rights 500 100pts for each box
Explain one High Court case that is an example of the High Court’s role in protecting the rights of the Constitution. In 2006, the Commonwealth Parliament passed the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act (Cth), which prohibited all convicted and sentenced prisoners from voting in elections. At the time there were around prisoners in Australia who would be affected by the act. Vicki Lee Roach, who was serving a six year term of imprisonment for five offences, challenged the constitutional validity of the 2006 act in the High Court in Roach v. Electoral Commissioner (2007) HCA 43. She also challenged the constitutional validity of the previous act passed in 2004, which banned prisoners serving a sentence of three years or longer from voting. The High Court held the 2006 act was inconsistent with the system of representative democracy established by the Constitution. The High Court found that the act was unconstitutional because S7 and S24 of the Commonwealth Constitution, which require that parliament be chosen ‘directly by the people’, enshrine the right to vote. (breach of Australia’ structural protection of rights) Chief Justice Gleeson stated that the right to vote could be removed for serious criminal misconduct, but not removed for prisoners who had been sentenced for less culpable criminal offences. The 2004 legislation was therefore valid (banning prisoners serving three years or more). However, it was unconstitutional for all sentenced prisoners to be denied the right to vote. The outcome of this case is that Australians have been given the constitutional protection to the right to vote because of the provision for representative government in the Constitution. This is a restriction on the law-making powers of the Commonwealth Parliament, which is unable to pass a law that restricts the right to vote, other than in the circumstances outlined. Roach was still unable to vote because the 2004 law was considered valid and she was serving a six-year sentence. 100pts for each box

22 Lucky Dip 100 How many? Australian referendums?
Successful referendums? A: 50pts = 44 referendums 50pts = 8 successful

23 Lucky Dip 200 What is an example of a successful referendum (100pts) and explain how it changed the constitution (100pts) A: 100pts = The Constitution Alteration (Aboriginals) 1967. This proposal sought to remove any ground for the belief that the Constitution discriminated against people of the Aboriginal race, and, at the same time, to make it possible for the Commonwealth Parliament to enact special laws for these people. The questions put to the people were: whether Indigenous people should be included in the federal census and whether the federal government should be allowed to make policies in respect of them. 100pts = This referendum gave the Commonwealth Parliament the power to legislate for Indigenous people in the states and to include them in national censuses. This amendment altered S51(xxvi) of the Constitution and deleted S127.

24 Lucky Dip 300 When might law-making powers be referred? Why would they be referred? What is the impact of this? A : States can refer their residual law-making power to the Commonwealth (100pts) To be uniform across the country (50pts) and because Commonwealth may have better expertise in the area (50pts) 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 (100pts).

25 What are the four main roles of the Australian Constitution?
Lucky Dip 400 What are the four main roles of the Australian Constitution? A: 100pts = facilitate the division of lawmaking powers by setting out what the Commonwealth Parliament can do with respect to law-making, that is, the types of laws that can be passed by the Commonwealth Parliament — the states can make laws in any area not mentioned in the Constitution, or not specifically made exclusive to the Commonwealth Parliament 100pts = provide a legal framework for the creation of the Commonwealth Parliament and outline the structure of the Commonwealth Parliament, including the composition of the House of Representatives and the Senate 100pts = provide for direct election of the members of the House of Representatives and the Senate by the people of the Commonwealth of Australia 100pts = give the High Court the power to interpret the Constitution if the need arises.

26 Lucky Dip 500 List two strengths and three weaknesses of the process of changing the constitution? A: 100 pts each

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