Unit 3: AOS 2 -The Constitution and Protection of Rights
Key
Knowledge
1:
The division
of lawmaking power
between state
and
Commonweal
th parliaments
under the
Commonweal
th
Constitution,
including
specific
(concurrent
and exclusive)
and residual
powers, and
the impact of
Section 109
Constitution
Powers (S=E+C)
Specific powers: Law making powers that are listed
or enumerated in the Constitution, and given to the
Commonwealth parliament to legislate on eg. Trade,
marriage, census. Applies to all of Australia.
Exclusive powers: Law-making powers given to
the Commonwealth by the constitution that can only
be exercised by the Commonwealth parliament eg.
Power to impose customs.
Concurrent powers: Law-making powers shared
by federal and state governments. Must not conflict
with Commonwealth laws eg. Marriage and taxation.
Residual powers: All powers that were not specifically granted to the Commonwealth ∴ remain with the
states eg. Road rules, criminal law and school education.
S.109
s.109 (restriction)
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If inconsistences arise between the Commonwealth and states in an area of concurrent powers, the
Commonwealth will prevail to the extent of the inconsistency.
States can’t legislate in areas of exclusive powers.
Key
Knowledge
2:
Restrictions
imposed by
the
Commonweal
th
Constitution
on the lawmaking
powers of the
state and
Commonweal
th parliaments
Constitution restrictions on Commonwealth law-making
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Comm doesn’t have power to legislate in residual areas.
Some sections of the Constitution specifically restrict Comm legislating eg. s.116 concerning freedom of
religion.
Some sections of the constitution explicitly refer to an area of law eg. s.80 Trial by jury for federal
indictable offences.
Some sections protect the states from Comm interference eg. s.106 and 108.
S.51 (xxxi) states the Comm must acquire property on ‘just’ terms. Prevents the Comm from taking
property without giving just compensation for market value.
S.128 restricts the Comm from changing the wording of the Constitution without a referendum.
Constitution restrictions on State law-making
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States can’t legislate in areas of exclusive powers
Comm will prevail to the extent of the inconsistency in concurrent power cases. eg. s.109.
States are not allowed to impose customs and taxes on imported goods eg. s.90.
States can’t establish a military force eg. s.114.
States can’t produce their own currency, only Comm can coin money eg. s.115
Role of the High Court in relation to the Constitution
When the Constitution was drafted, the HC was established as the arbiter of disputes involving law-making
power and jurisdiction. Has the following roles:
 Known as custodian of the Constitution as it determines the day-to-day operation and relevance to
society via solving cases involving the constitution.
 When the Const. was written, it needed to be relevant and appropriate to Australians, done by HC
interpreting and giving meaning to it.
 HC provides checks and balances regarding the use of Comm power.
 HC reads, interprets and applies the words of the Const. to reach decisions in cases as they arise.
Roads case 1926
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Victorian Government vs. Commonwealth Government.
Vic govt. challenged Comm power to make tied/conditional grants for financial assistance under s. 96.
Vic argued that s.96 was unconstitutional and Comm was getting involved in residual matters (s.96 allowed
Comm to give tied grants to states).
HC found in favour of the Comm as it was within its constitutional power to give tied grants even if it’s in an
area of residual powers.
This ↑ Comm financial dominance over states as if states wanted a grant they must accept Comm conditions.
Eg. Grants were given to state schools but the condition was the schools had to fly the Aus flag.
Engineers case 1920
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Work place dispute (industrial relations)
H.C had to decide if the Commonwealth parliament had the power to get involved under conciliation and
arbitration.
HC found in in favour of the commonwealth, expanded their law making powers.
Created a precedent that cast aside the Reserve Powers Doctrine which preserved the law-making powers of
the states, instead established a new way of interpreting the constitution.
A broad, purposive approach, looking for the intention behind the law (constitution).
Has allowed for future cases to be found in favour of the commonwealth increasing the Comm law-making
powers over the states.
Key
Knowledge
3:
The process
of change by
referendum
under Section
128 of the
Commonweal
th
Constitution
and factors
affecting its
likely success
Referendums
Referendums: Process through which changes can be made to the Comm constitution (s.128). Electors vote
for/against a particular change. For the change to take effect, must achieve double majority.
Reasons why referendums often fail
1. Complexity of proposal
If voters are presented with an issue that they don’t understand, unlikely to support the proposal.
Prefer to maintain the status quo.
2. Double majority is difficult
To obtain this, a majority of voters must vote yes in a majority of states (4/6).
If referendums affect a particular state, that state must be included in the (4/6).
3.
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Difficulty gaining bi-partisan support
A lack of both main political parties supporting proposed change.
Each party will try to persuade voters to vote according to their political stance in relation to the change.
Voters tend to take lead from their chosen political party and vote accordingly.
4. Many Australians are politically apathetic
Many don’t care about the proposed change.
They don’t take any time/interest to find out about it ∴ they vote no.
S.128
s.128 (changing the constitution)
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Key
Knowledge
4:
The way in
which one
successful
referendum
changed the
division of
law-making
powers
Establishes the mechanism for changing the constitution.
Limits Commonwealth’s power by making it difficult to change.
Referendum is the only way.
Impact of referendums on altering division of law-making
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44 referendums.
Only 8 proposals were accepted and passed.
Only 3/8 had an impact on the division of law-making powers.
Successful referendums mean alteration of the wording of the constitution.
1967 referendum: Aboriginal people

Up until the successful 1967 referendum, the power to make laws in relation to Aboriginal people
remained with the states, as it was thought that states were in a better position to make such laws.
Although Aboriginals were classed as Australian citizens and had been granted the right to vote, further
change was desired to ensure that the Constitution did not discriminate against Aboriginal people.
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In May 1967 a referendum regarding equal citizenship rights for aborigines was passed.
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Received 90.77% of votes and a majority of states.
Contained 2 main proposals, to include them in the national census and to allow Comm to make laws
regarding them.
Words ‘other than the aboriginal race’ were deleted from s.51 (xxvi) which lead to s.127 being amended.
Key
Knowledge
5:
The role of
the High
Court in
interpreting
the
Commonweal
th
Constitution
High Court Interpretation of the Constitution
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High Court is the only Court in the country that has the jurisdiction to interpret the Constitution
The High Court is considered to be the guardian of the Constitution
The High Court can give meaning to the words of the Constitution
The High Court keeps the words of the Constitution up-to-date and relevant in modern society
The High Court can determine if legislation is ultra vires
The High Court has successfully impacted on the division of powers.
Strengths:
 High Court judges are constitutional experts
 High Court can repeal ultra vires legislation
Weaknesses:
 The High Court cannot change the words of the Constitution
 Accessing the High Court can be time consuming and expensive
 The High Court is complaints based and can only deliver a verdict on cases brought to it by a party
with standing
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High Court judges can be conservative and tend to favour the Commonwealth
Key
Knowledge
6:
The
significance
of two High
Court cases
involving the
interpretation
of the
Commonweal
th
Constitution
in terms of
their impact
on the lawmaking power
of the state
and
Commonweal
th parliaments
Examples of High Court Interpretation:
Brislan (1935) where the High Court interpreted s51(v) and extended the meaning of ‘other like
services’ to include ‘wireless devices’ (residual to specific)
Summary of facts
- Mrs Brislan charged under Telegraphy Act 1905 with having a wireless without holding a license for it. She
challenged validity of the Act, claiming that the Constitution did not give the Comm Parl power to make laws
about wirelesses.
Section
- s.51 (v) postal, telegraphic, telephonic, and other like services
High Court decision
- ‘Other like services’ included wirelesses, as they were a communication device like the other devices in the
section. Therefore the Wireless Telegraphy Act was valid.
Impact of High Court decision
- Extended the meaning of x.51(v) thereby giving more legislative powers to the Commonwealth Parliament,
and bringing the section up to date with current needs. Any state laws could not be inconsistent with Comm
laws, or s.109 would apply.
Tasmanian Dams (1983) where the High Court interpreted s51(xxix) and extended the meaning of
‘external affairs’ to include ‘international treaties’
(residual to specific)
Summary of facts
- The Comm Parliament passed the World Heritage Properties Conservation Act 1983 to prevent the clearing,
excavation and building of a dam at the Gordon and Franklin Rivers, Tasmania, as this area was included in
the World Heritage List. The aim of the act was to protect the cultural and natural heritage to the area. The
state of Tasmania, wishing to dam the site for a hydro-electric scheme, claimed that the Commonwealth had
no jurisdiction to pass such a law.
Section
- s.51 (xxix) – external affairs
High Court decision
- High Court decided that the external affairs power gave the Comm Parl the power to make laws to fulfil
Australia’s obligations under international treaties (UNESCO). Therefore the Act was valid and the
Commonwealth was able to stop the Tasmanian Government from constructing the dam.
Impact of High Court decision
- Extended the meaning of the external affairs power to include law-making necessary to uphold obligations
under an international treaty. This greatly expanded the law-making powers of the Comm Parl, as the Comm
was able to legislate on an area that was previously a residual power. The Comm has since used the external
affairs power to create a variety of laws to uphold international treaties, such as: Human Rights (sexual
conduct) Act 1994 (Cwlth).
Key
Referral of power
Knowledge Referral of power: When a state gives or refers their law-making powers to the Comm under s.51 (xxxvi).
7:
 States choose to do this when they think it’s an area best dealt with by the Comm.
The capacity
of the states to  Comm can accept/decline the referral.
 Only affects the given state.
refer lawmaking power
Mirror legislation: States make same/similar legislation on a topic made by all states eg. Gun ownership laws.
to the
Commonweal  Preferred by states.
th Parliament  Enables uniform laws in Australia.
 No loss of power for states.
 Gives power to amend it to meet the needs of the states later on.
 Inconsistencies between states can occur if a state amends original law.
External affairs power
s.51 (xxix) allows the Commonwealth to sign international treaties on behalf of the nation.
 Country that becomes a signatory must uphold the treaty terms.
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Upheld by the creation of legislation that makes treaty law.
Eg. Signed int. treaty for the protection of World Cultural and Natural Heritage.
 Article 4 obligates Aus to ensure the protection and conservation of natural features.
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Once signing this treaty the Comm took legal action.
Protection of rights
A right: Is an entitlement to be treated in a specific way.
Structural protection of rights
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1.
2.
3.
4.
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Four main structures.
Const. writers in 1890 were concerned with making sure a good system of government in Australia and
preventing the new Commonwealth with interfering with the rights of the states.
They thought that the best way of protecting the rights of the individuals was to ensure the peace, order and
good government of Australia.
They established a system of checks and balances that would prevent the government's power being
concentrated in the hands of a small number of people who might abuse it.
Bicameral parliament
Senate can check on the HoR and legislative program of govt.
Separation of powers
Ensures nobody assumes total control over the 3 arms.
Provides each arm with checks and balances.
Responsible government
Designed to make the ministers answerable and accountable to parliament and the community.
Representative government
Designed to ensure the members of the house are accountable to their electorate and represent the
values of the voters.
The Roach Case
Roach v Electoral commissioner (2007). An example of how the HC can confirm the structural protection of the
constitution.
The players
 Vickie Roach (6 year sentence) took the Comm Electoral Commissioner to the HC.
 Challenging the validity of the Comm Parliaments legislation which prevented her from voting in Federal
elections.
The legislation
 The Electoral Act 1918 (Comm) stated that only prisoners serving 3 years or more were disqualified from
voting in federal elections. Included in this Act via an amendment in 2004.
 The electoral and Referendum Amendment (Enrolment Integrity and other measures) Act 2006 amended this
provision and banned all prisoners from voting.
 Roach claimed it was unconstitutional and breached s.7 and 24 (representative government) of the
constitution.
 She also argued that it was an infringement on the implied right ‘political freedom of communication’
The judge’s decision
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The Judges believed that a complete ban on prisoners was unreasonable.
HC upheld the concept of representative government and s. 7 and 24.
Still banned prisoners with 3 year sentences or more as they had engaged in conduct that was viewed as
taking them outside community expectation.
The impact
lied rights
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The Commonwealth Parliament can’t pass laws that unreasonably take away the structural protection of
being able to vote from a class of persons as it would interfere with representative government.
Vickie Roach could not vote as her prison term was for 6 years.
However approx 10,000 prisoners serving sentences were now able to vote.
Summary
The Roach case clearly illustrates how the structures of our Federal parliament can protect rights. The structure of
Key
Knowledge
9:
The
significance
of one High
Court case
relating to the
constitutional
protection of
rights in
Australia
The Roach Case
Roach v Electoral commissioner (2007). An example of how the HC can confirm the structural protection of the
constitution.
The players
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Vickie Roach (6 year sentence) took the Comm Electoral Commissioner to the HC.
Challenging the validity of the Comm Parliaments legislation which prevented her from voting in Federal
elections.
The legislation
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The Electoral Act 1918 (Comm) stated that only prisoners serving 3 years or more were disqualified from
voting in federal elections. Included in this Act via an amendment in 2004.
The electoral and Referendum Amendment (Enrolment Integrity and other measures) Act 2006 amended this
provision and banned all prisoners from voting.
Roach claimed it was unconstitutional and breached s.7 and 24 of the constitution.
The judge’s decision
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The Judges believed that a complete ban on prisoners was unreasonable.
HC upheld the concept of representative government and s. 7 and 24.
Still banned prisoners with 3 year sentences or more as they had engaged in conduct that was viewed as
taking them outside community expectation.
The impact
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The Commonwealth Parliament can’t pass laws that unreasonable take away the structural protection of
being able to vote from a class of persons as it would interfere with representative government.
Vickie Roach could not vote as her term was for 6 years.
However approx 10,000 prisoners serving sentences were now able to vote.
Summary
The Roach case clearly illustrates how the structures of our Federal parliament can protect rights. The structure of
representative government protects our right to vote in federal elections. We cannot have a representative
government if we cannot vote for those representatives. S.7 and 34 set out the structure of representative
government
Key
Knowledge
10:
Australia’s
constitutional
approach to
the protection
of rights and
the approach
adopted in
one of the
following
countries:
Canada, New
Zealand,
South Africa,
or the United
States of
America.
Evaluation of the Constitutional protection of rights in Australia
Strengths
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A referendum is the only way rights can be
altered. Power to the people.
Referendums potentially allow us to add more
rights.
HC can declare legislation invalid if it infringes
rights in the Const.
HC can imply rights when interpreting the
Const.
HC established guardian of the Const. Apply,
and interpret the Const. Upholds rights.
Expressed rights are entrenched ∴ protects
from easy removal.
Structural protection eg. Separation of
powers.
Weaknesses
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Referendums can cost money, very timely.
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Case has to be taken the HC (time, costly,
national important, ‘standing’).
HC doesn’t provide a remedy to the party.
HC reluctant to imply rights as the Const.
wasn’t intended to be a document of rights.
Only protects limited no. of rights, most need
to be protected via statute/common law.
Rights protected in the Const. only relevant
to the Comm not states eg. Right to trial for
federal offences.
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Australia and USA constitutional approach
Differences
Australia
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Few rights in the Const.
Rights can only be altered via s. 128
Has the High Court.
Only 5 expressed rights in the Const.
Overlap in the separation of powers.
Govt. is answerable and accountable, elected
by the people.
USA
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Bill of rights in the Const.
Referendums are more complex (both houses
2/3 votes and 3/4 states).
Has the Supreme Court.
Extensive express rights in the Const.
Powers are 100% separate.
No structural protection of responsible govt.
Similarities
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A court can find a section of an act unconstitutional because it breaches one of the express rights ∴
section is invalid.
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Both have separation of powers.
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Individuals/groups can complain that an act infringes on their rights set out in the Const.
Entrenched rights in the Const.
All rights are fully enforceable by the courts.
Common rights eg. Trial by jury and freedom of religion.
Both constitutions provide structural protection of right via representative govt., separation of powers
and bi-cameral system.
Both have 1 implied right (US is right to privacy).