Formal and informal methods if Constitutional change and their impact

Constitutional change

can occur to through the changing of words or the changing of its interpretation

formal change

occurs through a referendum, a direct democratic vote

referendum

-specified under s128 as a process to change the Constitution
-To pass, it requires a double majority of 50% + 1 to say ‘yes.’

Double majority

requires a democratic majority of Australian voters and a majority of the states
-the requirement of a double majority protects smaller states by preventing heavily populated states from changing the Const without broader state support

key features of a successful referendum

• supported by moral argument

• has bipartisan support

• proposes minimal changes

describe a successful attempt at changing the Const

• The 1967 Australian Constitution Referendum sough to allow teh Cwth to make laws for Aboriginals under s51 (xxvi) and count Aboriginals in the census.

• In 1967, 90.8% of Australian voters voted ‘yes’ with the votes passing in all six states.

• The referendum was successful because it had strong bipartisan support and positive moral framing promoting fairness and equality.

Describe a unsuccessful attempt at changing the Const

The 2023 Australian Indigenous Voice Referendum proposed to establish an Indigenous ‘Voice to Parliament’ advisory body.
-In 2023, 60.1% voted ‘NO” with the votes failing in all states
-The referendum was unsuccessful because the liberal party opposed the proposal, there were fear campaigns and there was constitutional uncertainty about how the voice would operate and its legal impact

The impact of formal changed to the Const

• pretty limited

• Out of 45 proposals to the Const, only 8 have passed

• Australians are generally conservative when it comes to legal and political changes

ways of Informal Constitutional changes

• High Court interpretation

• referral of powers

• unchallenged legislation

• cross vesting judicial powers

High Court interpretation as informal change

• most important change

• s76 vests HC with jurisdiction to interpret the Cont

what has the high court’s interpretation mainly changed

1) federal balance of power
2)the discovery of implied rights

what are some changes in the federal balance of power caused by HC interpretation

-expanding Cwth law making power (Tassie Dams)

-expanding Cwth taxing and spending power (uniform Tax case and Ha and Hammond case)
-removing implied protections of state powers

Constitutional rights

freedom or entitlement expressed in the Const

Specified and express rights

rights stated directly within the Aus Const

what are the 5 express rights in the const

s80 - right to trial by jury in federal courts for indictable offences
s116 -freedom of and from religion

s117 -prevents discrimination against Australian citizen based in their state of residence

s92- ensures interstate trade be ‘absolutely free’
s51 (xxxi) - ensures just compensation for the acquisation of property by the Cwth govt

implied constitutional rights

freedoms or entitlements not explicitly expressed but inferred from the meaning of the Const

Referral of powers

s51 (xxxvii) allows states to voluntarily transfer their residual and concurrent power to the cwth.

impact of referral of powers

• faster process than referendum or HC interpretation

• Fair Work Act 2009 - to create a uniform national workplace system, several states referred some of their industrial relations power to Cwth

• increased cwth legislative area of law

Unchallenged legislation

laws passed by the Cwth parl that mat expand the practical operation of the Const without being challenged in the HC

give an example of how unchallenged constitution brought Constitutional change

The Cwth’s Jurisdiction of Courts (Cross-vesting) Act 1987 (cwth) allowed the Cwth and states to cross vest jurisdiction. Where state courts could exercise federal jurisdiction and federal courts could exercise state jurisdiction. While the Aus Const did not explicitly permit this, the scheme operated unchallenged.
In the case of Re Wakim; Ex parte McNally (1999) , the HC held that major parts of the cross-vesting scheme was unconstitutional.

describe the impact of unchallenged legislation to Constitutional change

the cross vesting scheme changed how the Australia’s judicial system operated even though the words of the Const never changed. Federal courts had jurisdisdiction to state courts and vise versa.
-however, even so, the HC ultimately determines constitutional validity

Cross Vesting judicial powers

The Cwth’s jursidiction of Courts ( Cross -vesting) Act 1987 allows federal courts to hear state jurisdiction and vise versa even if it wasnt explicitly permitted in the Const
→ reduce the jurisdictional complications
→Improve cooperation between federal and state judicial systems.
- however in Re Wakim, the HC invalidated the conferral of state jurisdiction on federal courts, demonstrating the HC can constrain legislative attempts at constitutional reform

provide an example on how HC’s interpretation can lead to the discovery of implied rights

In Australian Capital Television Pty Ltd v Cwth(1992), the HC invalidated Cwth laws banning political advertising during election periods. The Court held that although the Constitution does not expressly mention freedom of political communication, an implied right exists because representative government under s 7 and 24 requires voters to communicate and receive political information freely.

define the impact of the discovery of implied rights

although no words were changed in the Const, a new implied right was created protecting the freedom of communication and is applied to future cases