constitutional change

constitutional change (definition)

any change to the words of the cx (formal)

any change to the operation of the cx (informal)

alters the meaning of the cx

is highly impactful as the cx defines + limits power AND protects rights of citizens

formal changes

referenda

referenda

authorised by s128

direct vote by eligible electors on a proposal to change the cx

to pass requires:

• a vote of the people counted nationally

• a vote of the people counted in each state

have only been 8 formal changes to the aus cx since 1901 → “labour of hercules” Menzies

requirements of a referenda (3)

1. proposal must be passed by both houses of the same house 2x (seen with 1977 referendum) + be given royal assent by GG

2. proposal must be put to the people 2 - 6 months after receiving royal assent

3. must be passed by a majority of electors (incl. territories) AND passed by a majority of states (excl. territory)

sources of ideas for formal cxal change

govt

• Howard Govt initiated 1999 referendum to establish Aus as a republic

court cases

• social services referendum 1946 was a result of HC striking of the Pharmaceutical Benefits Act 1944

individuals + pressure groups

• aus. civil rights movement prompted the 1967 referendum

royal/cxal commissions OR cxal conventions

• 1998 coxal convention created by Howard to draft a referendum to make Aus a republic

characteristics of successful referenda (4)

support of govt + opposition

• e.g. 1967 Referendum

limited change proposed

• avoids “distrust” factor in voters

• e.g. 1977 Retirement of Judges only altered s72

has an obvious moral arguement

• e.g. 1967 or 1977 territory voters

has clear benefits to the states/voters

• e.g. Social Services 1946

reasons for unsuccessful referenda (3)

conservatism

• “if it ain’t broke, don’t fix it” was NO campaign for ‘99 referendum

• the cx has functioned extremely well for Aus for over a century

• a NO vote is seen as safer

apathy

• many citizens are uninterested

• amplified by compulsory voting

distrust

• s128 means only federal politicians can initiate a referendum

• many citizens distrust politicians and may believe they are having the referendum to increase their power

strengths of referenda (4)

direct democracy

• double majority clause

promotion of smaller states

• double majority clause protects smaller states from being dominated

protection of the cx

• process is lengthy + costly → changes are thoroughly scrutinised throughout the process

compulsory vote

• views of the community as a whole are represented

weaknesses (5)

double majority difficult to obtain

• only 8/44 have passed

voter conservatism

timing

cost

• Voice was > $400M

state lack of power

• states have no influence in proposal for change, can only lobby for its voters to say no if effects are -ive

informal cxal changes (3)

1. HC decisions

2. referral of powers

3. unchallenged legislation

HC interpretations (general) + why they are bad

HC is most important agency of cxal change

authorised by s76

highly influential because can change both political + legal system

controversial sometimes because:

• judges are appointed, not elected (s72)

• no way for the people to hold it to account

• only way to overturn decisions is referendum (e.g. social services 1946)

landmark cases

cases that have significant political + legal impact

fundamentally alter the way the cx operates

2 areas of change:

• federal balance of power

• discovery of implied rights in the wording of the cx

rights of aus citizens

are not specified in the cx

the cx creates an LD which is reliant on political rights of citizens

the cx must imply they exits + discover the

the cx’s role in protection of rights

cx defines relationship between citizens + govt

by defining relations it also protects citizen freedoms + entitlements

most secure form of rights as are immune to legislative + executive change, only subject to judicial interp

cxal rights

freedom/entitlement expressed in the cx

specified rights are scattered throughout the cx

specified cxal rights (5)

s80

• creates entitlement for trial by jury in federal indictable cases

s116

• prevents prlt from establishing an official religion, protects freedom of religion

s117

• prevents discrimination based off state of residence

s92

• free interstate trade + commerce

s51(xxxi)

• cwth can only acquire property from states on just terms

implied rights

not explicitly expressed but inferred from the meaning/intention of the Cx

must be discovered as they are unspecified

occurs when judges “read between the lines” when adjudicating meaning of Cx

referral of powers

federalism

referral of powers in modernising the cx

helps keep cx fit for 21st century democracy

good alternative compared to:

• conservative outcomes of referenda

• slow + incremental HC changes

is a proactive method of cxal change achieved through governmental cooperation

unchallenged legislation (general)

cwth statute that expands its activity into areas of state residual powers without dissent or challenge from the states

2 requirements of cwth law:

1. law should use a cxal head of power

2. law must avoid being declared ultra-vires by HC (according to RoL)

HC cannot declare a law ultra-vires unless brought to them

who can challenge cxal law

parties who have locus standi, they must have a connection to the dispute

prevents most parties from challenging

prevents frivolous litigation

cwth scientific + industrial research organisation

aus’s preeminent scientific + technology institution

cwth has no head of power to legislate its formation under the Science + Industry Research Act 1949

but hasn’t ever been contested