Area of Study Two: The Constitution and Protection of Rights Division of law-making power between State and

Commonwealth Parliaments under the Commonwealth Constitution: including specific (concurrent and exclusive) and residual powers and the impact of Section 109. Background Information: Federalism: • • The Australian political system is a federal structure. This means: o o o • There is a central or national government There are sovereign state or regional governments There is a division of powers between the national and state governments

Hence Federalism is the name given to the form of government that unites separate political entities/states within a single national system, but which allows each political entity/state to retain its independence.

At Federation – 1 Jan 1901: • In Australia Federation was achieved on Jan 1 1901 through the creation of the Federal aka Commonwealth Parliament and Government when the Commonwealth of Australia Constitution Act (UK) 1900 came into effect. The 6 states gave up some of their powers, but remained independent. The Constitution is the central document (or set of rules) that determines the structure of government, power and law-making within a sovereign state.

• •

Major Function of the Constitution: • Established the Commonwealth of Australia in which ‘the legislative power of the Commonwealth shall be vested in a Federal Parliament,’ allowing Parliament to form a cooperative federation. To set out the law making powers of the Commonwealth (Federal) Parliament, & anything not specified was to remain power of the states.

Established a division of law-making powers: • Looks after issues of national concern

• • • • •

Eg. Defence, immigration, banking/currency State Parliaments. would deal with & administer important state issues Education & criminal law Each state also has a constitution that regulates its parliament CC also created High Court

Constitution Outlines: • • • • Structure of Comm. Parl. & composition of HoR & Senate. Lists legislative powers of CW (s51 & 52) Gives High Court power to interpret the Const. if the need arises. Const. tells the CW & the states what they can & cannot do

Division of Powers: • The CC divides the law making powers b/w CW & states.

Specific or Enumerated Powers: • • • All powers given to the Commonwealth Parliament under the Constitution at Federation, most are found in s51 & 52. Only areas on which CW can make laws. Cannot make laws on any topic not allocated to it in the Const. S51 of CC gives CW power ‘to make laws for the peace, order & good government of the Commonwealth’ o o (i) – Trade and commerce with other countries, and among the states (ii) – Taxation, but so an not to discriminate between states or parts of states (iv) – Borrowing money on the public credit of the Commonwealth

o •

Of the specific powers listed in the Constitution, some are held exclusively by the CW whilst others are shared with the States (concurrently.)

Exclusive Powers:

if conflict or inconsistencies occur b/w laws made by the CW & laws made by a state… The CW law will prevail to the extent of the inconsistency. while s114 says ‘a state shall not. such as the power to impose customs and excise duties. S51 (vi) gives the Commonwealth control over naval and military defence. the power of the Commonwealth Parliament to make law on a particular subject (for example. Health. External Affairs. without the consent of the parliament of the Commonwealth. They are specific powers that are made exclusive by other sections within the Const. Marriage. Currency. marriage) upon which the states may also make laws provided they do not conflict with Commonwealth laws. Eg.) • • • • • Concurrent Powers: • Law-making powers that shared by federal and state governments – more specifically.’ therefore currency is an exclusive power. Taxation. Eg. McBain v State of Victoria (2002) . but some specific powers can be concurrent (not all exclusive. • • Section 109: • • • • • When there is a dispute over law-making powers. Eg. Under 109 of the CC. Most of the specific powers are shared with the States eg. raise or maintain any naval or military force.’ All exclusive powers are specific. The High Court is the only body that can interpret the Constitution and settle disputes between the Commonwealth & the States. State Parliament can make laws about some areas set out in s51 provided they’re NOT excluded from using that power by another section of the Constitution. the dispute must be heard by the High Court. The States can’t make laws in Defence. S51 (xii) specifies that the CW has the power to ‘coin money’ & s115 says that ‘a State shall not coin money.• Powers that under the Commonwealth Constitution can be exercised only by federal parliament and not by a state parliament.

) were inconsistent with the Sex Discrimination Act 1984 (Cwlth). The CW cannot legislate in these areas. As a result of section 109.o The Federal Court ruled that provisions in the Infertility Treatment Act 1995 (Vic. . These powers were left with the states at Federation & comprise the bulk of the State’s law making powers. Under s106 – 107 CW Const. o o Specific Powers: Exclusive Powers Are held only by the CW Most of these powers are included in s51 Only the CW can make laws regarding • Currency • Defence • External Affairs • Customs & Excise duties The states have no law-making authority Concurrent Powers Powers shared by both the States & CW Found in s51 Eg. The CW made laws in the concurrent area of Marriage (Marriage Act 1961) & Divorce (Family Law Act 1975) The States make their own laws in the area of adoption Other concurrent powers include: • Trade & commerce • Taxation • Health Residual Powers: • • • • Any power not specifically given to the CW in the Constitution belongs to the states. The Commonwealth law clearly stated that a person cannot stuff discrimination on the basis of marital status. the provisions of the Victorian law that did not allow single women to access fertility treatment were declared invalid. residual powers are recognized as belonging to the States despite not being specifically listed in the CC.

High Court Decisions: . eg: o o o Education Criminal law Public transport Changing the Balance of Power from States to Commonwealth: S109: • Any legislation passed by the CW that is in an area of concurrent powers & which conflicts with state legislation overrides the state legislation in area where the conflict exists eg. Laws regarding use of mobile phones & driving offences. Tied Grants: • CW can use its power to give tied grants under s96 & can influence how money is spent by the states. S128 – Change to the Constitution: • A successful referendum can be passed to change the wording of the Constitution to give the CW greater power. Unchallenged Legislation: • CW can pass legislation that may be ‘ultra vires’ (outside its powers). Vary b/w states causing inconsistencies o Eg.• • Residual powers are outlined as part of each State’s Const. Referral of Power: • • States can refer their power to CW Family Law Amendment Act 1987 implemented the referral of power from the states in relation to ex-nuptial children. • Includes most of the laws concerning the day to day life of the community. Financial Dominance: • The CW can use financial dominance to gain support from the states. Taxation. but it will stand if not challenged.

will see the CW law ‘prevail to the extent of the inconsistency’ S90 – The state are not allowed to impose customs and excise duties (taxes) on imported goods . Many of the restrictions are designed to protect the rights of individuals or rights of States. • • • • • The Constitution places some restrictions on the law making powers of both the State and CW Parliaments. States are restricted by s115 that says they cannot coin money. Protects both the CW’s exclusive powers.• • • HC can interpret the Const. and the states’ residual powers. it is restricted to making laws for which is has specific power (either exclusive or concurrent) The main restrictions are concerned with protecting The rights of the states by allowing the states to Maintain some autonomy & equality. Restrictions on the States S114 – No state can raise a military force without the CW’s consent. in effect making this an exclusive power S115 – States cannot coin their own currency Restrictions on the CW Parliament CC prohibits the CW Parliament from making laws on certain matters. While the CW can make laws on taxation under s51 (ii) S99 says the CW can’t make a law that gives Preferential treatment in trade/commerce to any State. Eg. to give more power to the CW Franklin Dam Case Roads Case Restrictions imposed by the Commonwealth Constitution on the law-making powers of the State and Commonwealth Parliaments. The CW is restricted by s116 that says they may not impose or prohibit a religion. Other restrictions on the CW law making powers Protecting the rights of individuals • S116 – cannot discriminate on the basis of religion • S80 – Trial by jury • S117 – No interstate discrimination • S51 (xxxi) – acquisition of property on just terms • S92 – Trade and movement of S109 – inconsistency b/w CW law & state law.

Const.people between the states should be free. Referendum: • • • • Under s128 a change made to the words of the Constitution can only be made by the people via a referendum. A referendum is a compulsory vote for all Australian voters on a proposed change to the wording of the Const. . Why Change the Constitution? : • The main reasons change is necessary is: o To make clear the rights of Parl. It is democracy as it’s where the people have their say. goods traded between states cannot be taxed Principle of separation of powers is also a Restriction on the CW as the CW cannot form a Body that combines both legislative & judicial Powers • Military Court ruled invalid in 2009 S128 – prohibited from changing the wording of the Constitution without a referendum The process of change by referendum under Section 128 of the Commonwealth Constitution and factors affecting its likely success. To reflect the needs of a modern. To provide for social cohesion so that people in all states enjoy similar rights. multicultural society. o o The process of change by referendum: • • Procedure outlined in s128 Proposed change must be written into a Constitution Alteration Bill passed by both Houses of Parliament. to create laws on issues that weren’t contemplated during the 1890 debates. No referendum is required to change the Vic.

after a period of 3 months it is able to be passed by only one house with the consent of the Governor General (using the ‘deadlock provision. Once this is received.• However if one house rejects the proposal. the actual wording of the Constitution is changed. Successful Referenda: • • 8/44 succeeded 1906 Senate Elections: o • Changed the beginning date of the term of Senators 1910 State Debt: o To give the CW unrestricted power to take over State Debt. • • Double Majority: • For the proposal to succeed – double majority must be met which requires: o o o • • The majority of voters in Australia to vote yes AND The majority of states (4/6) to vote yes If the proposal affects a particular state an absolute majority of that state must vote yes. • 1946 Social Services (s51 xxiia) o Gave the CW power to legislate on a wide range of social services (pensions) • 1967 Aboriginal People (s127) .’ of section 128) B/w 2 or 6 months later the proposal must be submitted to a referendum of all voters in Aus. The changes are expressed in one or more questions requiring a Yes/No response on the ballot. • 1928 State Debt (s105) o Gave the CW the power to set up a Loan Council responsible for allocating monies borrowed by the State + CW Govts. The proposal is then submitted to the Governor-General for Royal Assent.

1988 Fair Elections o Proposed to conduct all elections democratically • 1988 Local Government o Proposed to recognise local government. Factors Affecting the Likely Success of Referendums: Process: .o • To recognise Aboriginal people & allow the CW to make laws relating to them. • 1988 Rights and Freedoms o Established further civil rights • 1999 Establish a Republic o Alteration of Preamble to the Constitution. however people believed it would take power away from the states. with the state legislature appointing someone from the same political party. Changes Most Likely to Succeed: • • Those which are supported by both political parties Those with which the voting public can relate to. and increase HoR terms from 3 to 4 years. Unsuccessful Referenda: • 1988 Parliamentary Terms o • Proposed to decrease Senate terms from 6 years to 4 years. 1977 Retirement Age of Judges o Created a retirement age of 70 • 1977 Territorial Representation o Allowed people in territories to vote in referendums • 1977 Senate Casual Vacancies o Senators fill their predecessor’s original term.

especially because they’re the ones promoting change. o People: • Lack of Understanding/Apathy: o o Voters don’t understand the proposed change Some people vote ‘no’ because they are concerned about the impact. • Voter Conservatism: o Voters tend to be conservative & prefer to accept the Constitution as it is rather than vote for the unknown. 1996 Ownership of guns had support from both political parties. States decided to agree on uniform gun laws instead (same effect at no cost) • Timing: o Due to the expense of holding a referendum they’re often held at the same time as an election. Voters see referenda as a grab for power by the CW. even though 62. Simultaneous Elections (1977) failed. Voters are more concerned about which party to vote into office which can take the focus away from the referendum. WA and TAS voted no. as the requirement of a majority of electors in a majority of states is difficult to satisfy. o o • High Cost: o o o There may be an alternative way of achieving the same result.• Double Majority: o This provision is quite rigid which makes it difficult to change the Const. People voted against the republic because people were unsure about which model for the republic was best for Aus & how the change would affect their lives. o o .2% of Australians voters said yes the 3 least populous states QLD. but not the majority of States. 13/44 referendum proposals have received the majority of voters in Aus.

there have been 19 referenda of 44 proposals to change the Const have been put to the people. o • Erosion of State’s Rights: o o Voters in the states may see that the changes aren’t in their interests. Strengths & Weaknesses of the Process of Changing the Constitution: Strengths: People can have their say: The Const. 13/44 referendum proposals have received majority support from the majority of voters in Aus but didn’t satisfy majority of states.Politics: • Lack of bipartisan support o The proposed changes most likely to succeed are those that are supported by both major parties & which cover issues the voting public can relate to. Most changes are minor. If opposition party is against the proposal. Impact of Referendum: • • • • • Since 1901. the information from both parties becomes confusing & the referendum will face almost certain defeat. Only 8 have been successful (less than 20%) 3 have changed the division of law-making powers between the states and the C/W. 1977 simultaneous elections States’ lack of power: To stop the movement of power the only . Smaller states tend to vote against change. Protection of the Const: Process involved protects the constitution Weaknesses: Conservatism: Changes may have merit but voters tend to be conservative when it comes to voting for change. will only change if it has the support of the double majority Protection of the smaller states: Double & triple majority provision protects smaller states from domination by the larger states. 17 attempts by the CW to increase their economic power have been rejected by the voters. Double Majority: Difficult to achieve 13/44 received the support of the majority of Australians overall but not the majority of states eg.

despite several opportunities the High Court has never resolved that it cannot also be used detrimentally Furthermore. Bipartisan support: Voters tend to vote according to their political preferences & the advice of their political party.’ The referendum deleted these words in the Constitution This gave the power to make laws for Aboriginal Australians/Torres Strait Island people to the Commonwealth as a specific (and concurrent) power.from changes being proposed that haven’t been thoroughly considered. The Commonwealth government would now assume control of Aboriginal affairs. The High Court & the Constitution: . • • • • • • The role of the High Court in interpreting the Commonwealth Constitution. The way in which one successful referendum changed the division of law making powers. 1967 Indigenous Australians: • • A vote on the Constitution Alteration (Aboriginal People) 1967 The passing of the 1967 Referendum is generally regarded as a highly significant event in Australian history. aboriginal natives shall not be counted. In that referendum over 90% of electors voted ‘YES’ to alter two clauses in the Australian Constitution in reference to Aboriginal people. and oversee equality for Aboriginal people Although the intent was that this new power for the Commonwealth would be used beneficially. or of a State or other part of the Commonwealth. theoretically able to sweep away racial discrimination. section 127 which read ‘In reckoning the numbers of the people of the Commonwealth. as it stated it could make laws for anyone ‘other than the aboriginal people in any state. grant citizenship rights to Aborigines. Compulsory Vote: The views of the community as a whole are more likely to be represented because voting is compulsory thing the states can do it lobby strongly against the referendum & encourage the voters in their state to vote no. The Commonwealth Parliament challenged section 51 (xxvi) that prevented the Commonwealth from the legislation in relation to indigenous people.’ was wholly removed.

S76 gives the HC the power to hear disputes arising under the Constitution. which sought to protect the residual powers of the states from interference by the Commonwealth. with s73.• • The High Court is the only body that has the power to interpret the Constitution and settle disputes between the Commonwealth and the states. Trend changed in 1920 Engineers Case – the HC used a broader interpretation away from the reserved powers doctrine. towards an approach that affected residual powers. • . If it decides in favour of the state/s. As a result the powers under s51 were widened giving the CW more law making power. Significance of the High Court Decisions: • • • Originally the HC was very conservative in its interpretation of the Const. when a case is brought before them. This may occur when: o o o o There is a dispute over constitutional power A state challenges the CW The CW challenges a state An individual challenges the CW eg. 75 and 76 outlining its jurisdiction Guardian of the Constitution Their role is to determine the intention of the founders when they wrote the Constitution & how those intentions apply to the present circumstances. Brislan 1935 s51 (v) • • • • • • • • If it decides in favour of the CW in areas of concurrent power than s 109 is implemented. The HC is required to interpret the Const. Commonwealth law is declared ‘ultra vires’ – outside their law-making power. Initially used the reserved powers approach. It does not have the power to change the wording of the Constitution (though it can change the meaning by interpreting the words of the CC & giving meaning to them.) Established under s71.

has been fundamental in increasing the CW power over the States since the Engineer’s case that resulted in a broader interpretation of the Const. responsibility that were not included in formal CW responsibilities. Name of Case Roads Case (1926) ie. Section of the Constitution S96 – CW can ‘grant financial assistance to any state on such terms and conditions as the government thinks fit’ Impact of High Court Decision Saw the CW’s financial power substantially increase under s96. For example in 2004 the Howard Government indicated that funding for schools would be partly dependent on state governments changing their assessment policies and ensuring the Australian flag flies in the school. CW is indirectly controlling many of the states’ residual powers. CW can now use s96 to provide special purpose grants to fund areas that were once considered state residual powers. The significance of two High Court cases involving the interpretation of the Commonwealth Constitution. Road construction. The HC confirmed that specific purpose payments from the CW to the states could be directed to areas of govt. Financial Power Summary of Facts Victoria challenged the CW’s ability under s96 to make conditional or tied grants of financial assistance to the states. Extended the Tasmanian Dams CW had passed The Under s 51(xxix) .• HC interpretation of the Const. CW could dictate to the states the conditions on which grants given to the states had to be used eg.

Tas challenged this act. Tas claimed that the CW had no jurisdiction to pass such a law whilst the CW argued that it could make laws on matters of international concern. The CW has used the external affairs powers to create a variety of laws to uphold international treaties. The aim of the act was to protect the cultural & natural heritage of the area. External Affairs s51 (xxix) World Heritage Properties Conservation Act 1983 to prevent all work on a hydroelectric dam planned for construction on the Gordon River in south-west Tas.Case (1983) ie. arguing that the legislation was interfering with Tas’s residual power to build a hydro-electricity dam on the Gordon and Franklin Rivers. This is b/c the CW can now: • Sign international agreements • Pass correspondin g legislation at home & therefore can gain control of areas once considered states’ residual powers. The CW’s increased willingness to enter into international treaties & agreements has led to a correspondingly increased amount of legislation implementing the terms of these international treaties + agreements. ‘External Affairs’ the HC found in favour of the CW & gave them power to make laws that fulfill Australia’s obligations under international treaties. For example the CW ratified the International . meaning of the external affairs power to include law making necessary to uphold an international treaty.

The capacity of the states to refer law-making power to the Commonwealth Parliament. States can refer any of their residual law making powers to the CW using s51 (xxxvii) To do so they pass an Act that refers its legislative power to the CW on an area. Referral of Power: • • • Refers to the ability of the states to transfer their legislative power on a particular area to the CW Parliament. adult homosexuality in private. Why would they do so? • The States may believe that an area of law making is best dealt with by the CW due to their expertise or so that the laws can be consistent across States (assuming that a number of states refer their powers in the same area.Convenant on Civil and Political Rights.) Impact: • Results in a change in the division of powers b/w the States & the CW in favour of the CW. & the CW passes an Act accepting this power. Loss of power for the states as the CW is able to legislate on an area that was previously a residual power. . Then the CW passed 1994 legislation with the express purpose of overturning two sections of the Tasmanian Criminal Code which outlawed consensual.

WA has not referred powers. As a result. In 2003. However. This referral excluded child welfare matters. and access of ex-nuptial children to the Commonwealth. except WA. QLD. The referral also did not refer to property matters arising at the end of de facto relationships. As a result. • • • • • Examples of other areas referred: • • 2002-03 Criminal Code Amendment (Terrorism) Act 2003 (Cwlth. including structural protection. referred the custody. the issue remains unresolved in relation to other states. Protection of Rights under the Commonwealth Constitution: Introduction: • • A right is something an individual is entitled to and is enforceable by law. The Australian Commonwealth created The Family Court of Australia as a specialist court dealing with divorce. . Vic. However. the Family Court of Western Australia. these matters had to be litigated in non-specialist state courts. Democratic rights protect the democratic processes such as the right to vote. maintenance orders are made in the Family Court & property settlements in state courts.) Workplace relations 1996 The means by which the Commonwealth Constitution protects right. the custody of children born outside of a marriage was outside of the Commonwealth’s jurisdiction.De Facto Relationships: • • • • • The Australian Constitution confers legislative power to the Commonwealth over marriage (s51 (xxi)) & matrimonial cause (s51 (xxii)). NSW referred financial settlements to the Commonwealth. although the matters nay be interrelated. maintenance. express rights and implied rights. including custody of children. and has its own specialist court. Between 1986 and 1990 all states.

• Because we don’t have a bill of rights we rely on other methods to protect those freedoms or rights that we take for granted. The systems of mechanisms in the CC that indirectly protect human rights by preventing the abuse of power eg. that interfere with fundamental freedoms. o o o Separation of powers Responsible Government Representative Government . Structural Protection: • • The systems or mechanisms in the C/W Constitution that indirectly protect human rights by preventing the abuse of power and are built into the political system.• • Human rights protect individuals against the actions of the govt. statute law & our moral obligations under treaties. • • • These protections protect the rights of the community & individuals. It is argued that a ‘bill of rights’ would protect rights more effectively because it limits the powers of parliaments to amend the rights – therefore they are seen to guarantee the rights against the abuse of government. Protection of Rights in Australia: • Each of these methods is vulnerable because Parliament is able to pass legislation that overrides common law. Created by the founders who created a system of checks & balances designed to ensure: o Good government & to avoid government power being concentrated in the hands of a few people who might abuse them. In Australia we are used to having our freedom of: o o o Religion Speech Association etc.

responsible to Parliament & indirectly to voters.Representative Government: • • • • • Some constitutional structures are designed to prevent power being concentrated in the hands of a few. when requested. Consequently ministers must explain their actions to Parl. Responsible Government: • • • • Executive (governor general) acts on the advice of the PM & senior ministers.’ This structure indirectly protects human rights as it o Protects govts. ‘be directly chosen by the people. the power to legislate to decide who may vote in an election. or men under 21. ensures that persons elected to parliament to form govt. gives Parl. S8 & 30 of the Const. senior ministers & govt. But by providing that the 2 houses must be ‘directly chosen by the people’ the Constitution does imply that a substantial proportion of the population must be able to participate in the electoral process. In practice. . aborigines. look after the views & interests of the people governed. Exactly who can vote is determined by CW legislation. the executive (PM. Provides that the Senate & HoR will be directly chosen by the people. all adult Australians have a constitutionally protected right to vote. Representative govt. govt. from abusing by making them answerable to people at elections & Ensuring that members of parliament represent the views & needs of those who voted them in. given to elected persons. At Federation ‘people’ did not include women. S7 (Senate) & s24 (HoR) require that members of the parl. Power of govt. To ensure rep. o • • • • • • The Constitution doesn’t guarantee the right to vote. departments) need support of LH to govern.

S53 of CC gives legal recognition for this principle. This involves drawing implications from the wording of the Const. like everybody.) This means that those who enforce the laws (the judiciary) are independent of the government so that they enforce the law fairly & treat all parties (including the govt. Separation of powers ensures that the political powers of the government are kept separate from the judiciary (courts. The HC has decided that in order for structures like representative government to be effective ppl need to be informed about the candidates they vote for. must act within the law. can’t operate unless it can collect tax & spend money. from abusing its power. it either resigns or asks GG if it can dissolve the house to call an election. Govt. that has the confidence & support of the elected LH. loses support of LH in a motion of no confidence. Meaning – it was intended by the founders of the Const. • .• • • • • • • • If govt. needs support of LH to run the country. This notion protects the rights of citizens to be governed by a govt. Only HoR can initiate appropriation bills (for collecting taxes & distributing revenue) & therefore govt. & the people. is responsible to Parl. which means the government. but not explicitly stated.) equally. While MPs usually vote with their party. even if they are not clearly stated. Hence govt. on occasion they may vote with the opposition depending on their views. Separation of Powers: • • • Governments are subject to the rule of law. Implied Rights: • • • • The HC has considered that some rights may be inferred by the Const. Stops govt. This is an important democratic principle that ensures institutions such as the judiciary & parliament are protected from becoming corrupt.

However this is not a right to free speech but only a right to free communication on matters relating to political issues. Some of these rights are restrictions on the CW.. contains an implied right to free political communication. needs to acquire property from an individual.• • • • • • • • Even though it’s not written into the Const. The Const.’ These rights were deliberately written into the Const. the court has implied a right which to designed to ensure effective rep govt. are clearly stated. Democracy is only effective if people are informed about the candidates they vote for The HC found that the Const. . CW 1992 CW passed the Political Broadcasts and Disclosures Act 1991 to ban advertisements during election campaigns. eg. govt. They can only take the property for a purpose or area on which it has the power to make laws. National parks or roads. free political communication is necessary for the system to operate properly.’ This section recognises that there may be reason why Parl. Australian Capital Television vs. establishes a system of rep. They must also give compensation that is reasonable & fair in the circumstances. Can only be removed by a referendum 5 express rights Acquisition of property on just terms: (s51 xxxi) • • • • The CW can make laws to acquire property from individuals on ‘just terms. HC rejected the ban reinforcing rights to be informed by free & open communication on political matters. Express Rights: • • • • • Some rights in the Const. they are called ‘express rights.

Gives protection to Australian citizens from being discriminated against on the basis of the State in which they live or where they came from. o • This section does not apply to state laws. can avoid this by legislating for the offence to be a summary offence. Trial by Jury for Commonwealth Indictable Offences (s80) • • This is a limited right b/c most indictable offences are crimes under state law. Indictable has been ruled by the HC to mean ‘crimes on indictment’ the govt. Freedom on interstate trade & commerce (s92) • • • • Imposed on both CW & the states Provides that trade shall be free among the states & restricts the imposition of taxes on goods moving from one state to another. Primarily refers to trade & commerce but it can also refer to the movement of people b/w states.• It does not apply to the acquisition of property by state govts. This is more of a restriction on economic activity rather than a fundamental democratic human right. Freedom of Religion (s116) • Under this section the CW cannot make a law: o o o o Establishing a national religion Imposing religious observance Interfere with a religion’s practices (unless it’s against public interest) That requires a person to have a particular religious belief in order to be employed by the CW. Also protects the right not to have a religion. Freedom from Intestate Trade & Discrimination (s117) • • • Commonwealth & the states It is unlawful for the states & CW govts. to discriminate against someone on the basis of the state in which the person resides. .

but was serving a 5 yr sentence for negligently causing serious injury in a car accident. She sued the AEC & the CW arguing that the ban was invalid as: o o • • • It violated the implied right to political freedom of communication ie It interfered with the system of representative government the Constitution set up. plus right to political communication which has been implied. govt. In some instances) passing legislation that removes these rights. in Australia there are only 5 protected rights specified in the Constitution. Similarities Rights entrenched within the Canadian Charter ie Fundamental Freedoms and Equality rights. as this would interfere with rep. These rights can only be changed or removed by amending the Const. Australia’s constitutional approach to the protection of right and the approach adopted in Canada. and the CW Constitution also protects some rights ie freedom of religion. was a restriction on the CW’s power to decide who may vote. Roach won the legal point but did not regain her vote. The significance of one High Court case relating to the constitutional protection of rights in Australia. Rights can only be removed by holding a referendum. Prior to this change. however the old ban remained and in the end Ms. Roach v Australian Electoral Commission 2007: • In 2006 the CW Parliament amended the Electoral Act 1918 to ban all prisoners from voting. In effect the CW Parl can’t pass laws which unreasonably take away the right to vote from a class of person. • • The HC found that the Constitution’s requirement that there be rep. by a successful referendum. from either the Canadian Charter of Rights and Freedoms of s128 Differences While in Canada the list of entrenched rights is extensive. only prisoners serving terms of three years or more were disqualified. Canadian Charter allows Parl. govt. can limit the rights protected under the Charter when it is ‘demonstrably justified in a free . Ms Vicki Lee Roach was enrolled to vote in The 2007 Federal Election in the seat of Kooyong. The complete ban on prisoners voting was considered unreasonable.• • Express rights protect Australians from the CW (& the state parls.

In Aus the High Court’s approach has been to simply declare legislation invalid. in a trial the Supreme Court can exclude evidence that has been obtained in violation of the Charter. In Canada.) In Australia. The Australian High Court does not have a similar provision. In Canada the courts can interpret legislation to bring operation within boundaries set by Charter. parliament can’t overrule a HC ruling.of CC. while Australian courts have not adopted this approach to statutory interpretation. Rights are fully enforceable by the courts (Australian High Court & Canadian Supreme Court. Individuals + groups can bring a complaint that an act infringes upon their rights (either from Charter or CC. Dialogue is encouraged between parliament and the courts. . the Australian High Court will not give advisory opinions. a parliament can’t overrule certain legislation declared in valid (right to vote). courts can make another appropriate remedy where rights have been infringed.) The person bringing the case must be directly affected by the infringement of rights. and democratic society. Conversely. In Canada. & democratic and mobility rights are fully enforceable by the courts.’ in Australia there is no similar limitation. In Canada there is a limit on the enforcement of rights (except democratic and mobility rights) as Parliament can override a court order that has declared a law invalid by b/c it infringes a right by passing legislation(which is valid for 5 years) However in Aus none of the protected rights can be overridden by parl. In Canada on top of declaring legislation invalid. but will only consider a legal issue when it is brought before them by parties seeking to have a dispute resolved. The Canadian Supreme Court can be asked to given an opinion on whether proposed legislation will infringe the Charter.

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