FEDERALISMLegal Studies 3C

Federalism•Federation – separate colonies coming together to form a single nation (Australia!)

•Why was a federal system adopted?

•Watch the following 2 clips and read textbook and complete the following table:

• https://www.youtube.com/watch?v=ecB-Lpm_AZ0

• http://www.peo.gov.au/multimedia/videos.html

•Textbook reading page 110-111 (Blue edition)

•Textbook reading page 102 (Red edition)

Pre 1900 Reasons for federation

Process that led to federation

Constitution/Division of law-making powers

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

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 of law-making power

Commonwealth power

Specific powers(Given to the

Commonwealth in the Constitution)

Exclusive powers(S51 of Constitution:

exclusive to Commonwealth

Parliament)

Concurrent powers(S51 of Constitution:

Commonwealth and State Parliaments share jurisdiction over particular areas of law-

making)

Residual powers(Left with the states

at the time of federation)

State power

State power

Division of powers• Diagram on board

•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 111 – 124 (Blue edition)

•Textbook page 102 – 115 (Red edition)

•Learning Activity 3.2 •Q1 – Q5•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•3 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

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 referendumParliament 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.

ReferendumsRead page 126 – 130 Referendums (blue edition)

Read page 116 – 121 Referendums (red edition)

(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 powersIn 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 questionsRead page 130 – 133 (blue edition)

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 133 – 136 (blue edition)

•Read page 130 (red edition)

•List and briefly explain the strengths and weaknesses of referendums

Referendums - 1967 •1967 referendum (Aborigines)

• Page 136 – 140 (blue edition)• Page 122 – 125 (red edition)

•Legal Studies Preliminary reading (Wordpress site)

•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 interpretationHigh 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 interpretationInvestigate the following cases (with suggested readings):

• Tas 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-koo

warta-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• Textbook

High Court interpretationOutline 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

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)