FEDERALISM
Legal 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
Specific powers
Residual powers
(Given to the Commonwealth
in the Constitution)
(Left with the states at
the time of federation)
Commonwealth power
State power
State power
Concurrent powers
Exclusive powers
(S51 of Constitution: exclusive
to Commonwealth Parliament)
(S51 of Constitution: Commonwealth
and State Parliaments share jurisdiction
over particular areas of law-making)
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 referendum
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 governorgeneral for royal
assent.
Referendums
Read page 126 – 130 Referendums (blue 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 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 130 – 133 (blue 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)
• List and briefly explain the strengths and weaknesses of
referendums
Referendums - 1967
• 1967 referendum (Aborigines) – Page 136 – 140
• 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 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)
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 Dams case 1983
•
•
•
Koowarta case 1982
•
•
•
•
http://envlaw.com.au/tasmanian-dam-case/
Textbook 146 - 147
http://blogs.adelaide.edu.au/public-law-rc/2012/05/23/remembering-koowarta-v-bjelkepetersen/
https://www.humanrights.gov.au/guide-law-landmark-cases-under-racialdiscrimination-act-1975
http://www.abc.net.au/7.30/content/2012/s3508700.htm
Brislan’s case 1935
•
Textbook 144 - 145
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
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)