Hello late-night Legal Eagles (hahaha my teacher calls us that.. its kinda embarrassing but funny) around Victoria!
I have a 10 mark question that I keep getting 7/10 for, so I would like some help as to how I can improve my response.. any suggestions are welcome and greatly appreciated!! I re-wrote my answer to the question anyway and it's below:
I know its a massive question to post on here.. soo... skim over it or something haha :p
THANKS IN ADVANCE GUYS!!
cheers
winn
____________________________________________________________________________________________
It is very difficult to change the way the law-making powers are divided between the Commonwealth and State Parliaments. Discuss this statement and indicate the extent to which you agree with it. Include in your answer an explanation of how law-making powers are divided between state and C/W parliaments by the Commonwealth Constitution____________________________________________________________________________________________
Specific powers are the powers enumerated in sections 51 and 51 of the constitution, and are the only areas in which the Commonwealth can make laws. The C/W cannot make laws on any topic not allocated to it by the constitution. Specific powers allow the C/W to “make laws for the peace, order and good government of the Commonwealth. Examples of specific powers include currency, coinage, military defence and external affairs. Of the specific law-making powers listed, some are held exclusively by the C/W where as some are shared with the States.
Exclusive powers are areas of law making that only the C/W can legislate on. The states cannot legislate in certain areas, due to sections of the constitution that expressly restricts states from doing so. For example, under s51, C/W has power over ‘currency, coinage and legal tender’, however in s115, the Constitution states that ‘a state shall not coin money’. Therefore, control over currency and coinage is a “C/W only” exclusive power.
Concurrent Powers are law-making powers shared by both the state and C/W parliaments. Both state and C/W parliaments can make laws in these areas. State parliaments can make laws about some areas in s51 provided they are not excluded from doing so by another section of the Constitution. Under section 109, “The C/W laws will prevail to the extent of the inconsistency” if there are conflicts between laws made by the state and laws made by the C/W and this is challenged at the HC. Examples of concurrent powers include taxation, marriage and health
Residual powers are powers not specifically listed in the Constitution and belong to the states. They are the bulk of the state’s law making powers. C/W cannot legislate in areas of residual law making powers. Under section 106 and 107 of the Constitution, residual powers are recognized as belonging to the states despite not being specifically listed. Residual powers can vary between states causing inconsistencies. Examples of residual power areas include education, environment, criminal law and public transport
The division of powers as outlined can be changed through the referral of powers. States can refer any of their residual powers to the C/W if they believe that the C/W can make better and more consistent laws for them. For this to occur states pass an Act giving law-making powers to the C/W and the C/W passes an Act accepting this power. This results in law-making power moving from the States to the C/W (so the division of powers is changing in favor of the C/W). An example of referral of powers is terrorism – In 2002-2003, after the September 11 attack, all states referred a limited power to allow the enactment of the Criminal Code Amendment (Terrorism) Act 2003.
However states may not want their law-making powers reduced and opt to pass uniform laws instead. Referral of powers centralizes and reduces the law-making powers of the states, thus changing the division of powers.
The process of referendum is another way to alter the Division of Powers. A referendum is a compulsory vote on proposed change to the wording of the Constitution. Historically only 3 out of 8 successful referendums have been successful in changing the division of powers. For example in 1910, section 105 was amended to give the C/W unrestricted power to take over state debts. This gave the C/W financial dominance over the states. The 3 successful referenda that gave power to the C/W were related to economical/financial issues. The remaining 5 were related to minor social issues that did not change the division of powers.
Referendums are not the best way to change DoP because due to s128, there are many specific steps that must be completed before a referendum is successful. It is also difficult to change the Division of Powers due to voter conservatism (where voters do not want to vote for new, unknown changes), the double majority provision and because it is difficult to gain bipartisan support (major political parties cannot agree on a single proposal – e.g. 1999 republic referendum).
Double majority is criteria that must be met in order to allow referendums to be passed. It requires an absolute majority of states and an absolute majority of Australian voters to vote ‘yes’ to a referendum before it can be passed. Due to the rigidity of the double majority provision, it is often very difficult to change the division of powers via referendums. Sometimes the power to change the Constitution may be left in the hands of smaller states. In the 1977 Simultaneous Elections referendum, 62.22% of the voters voted yes, but only 3/6 voted yes (small states voted no) therefore the referendum was unsuccessful.
Under section 71 in the Constitution, the High Court is deemed as the ‘guardian of the Constitution’. The role is to determine the intentions of the founders when they wrote the Constitution, and interpret how the Constitution applies to present circumstances. The HC interprets the words of the Constitution and gives meaning to them. HC interpretation does not alter the written words of the constitution. Section 76 gives the HC the power to hear disputes arising under the Constitution (when there is a dispute over constitutional power) when a case is brought before them. After the 1920 Engineers case, the HC preferred to adopt a broad interpretation of the Constitution and the powers of the C/W were expanded through interpretation by HC judges.
When High Courts use a broad interpretation of the Constitution, this could lead to expansion of the C/W’s powers at the expense of the states’ powers. In the 1942 Uniform Tax Case, the HC’S broad interpretation of section 51 gave the C/W increased financial control over the states, as C/W became sole collector of income tax in Australia. As a result, state governments became reliant on the C/W for funds.
Overall, it is very difficult to change the Division of Powers via referendums due to the many restrictions and challenges in s128 that must be overcome. High Court Interpretation is one of the quicker ways to change the division of powers however it does not alter the words of the constitution.
Home
Help
Search
Login
