UNIT 3 P+L - CONSTITUTIONAL CHANGE

the 5 ways of constitutional change

• referendums (only formal way)

• high court decision

• implied rights

• referral of powers

• unchallenged legislation

referendums success rate

8/45 have passed

how much did the voice to parliament referendum cost

411 million

steps to a referendum

1. bill is introduced by parliament and must be passed through both houses

2. case committees are formed (yes and no)

3. a writ is issued by the gg (close of electoral roll is 7 days after issue of write, polling day must be on a saturday 33-58 days after issue of writ)

4. information posted to voters for both yes and no campaigns

5. voting day

6. must be approved by a double majority, that is a majority of voters across the country, and a majority of voters in a majority of the states (4/6)

7. if successful, royal assent is given

2 examples of successful referendums

1967: to remove the prohibition agaisnt counting aboriginal people in the census

1977: (3 proposals) 1. if someone in senate dies then their position is replaced by a party member 2. to allow people in territories to vote in referendums 3. to make judge retire at 70

2 examples of unsuccessful referendums

1951: banning the communist party

2023: voice to parliament

4 factors contributing to successful amendments

• bipartisan support, eg in 1967 both parties agreed so only yes campaign made

• good education: citizens must understand what they are voting on

• minor, non controversial change such as judges retirement

• supports universally held australian values eg protecting aboriginals 1967

4 factors contributing to unsuccessful referendums

• the common view ‘if it aint broke dont fix it’

• questions on voting sheet can be too lengthy and people dont understand it eg 1999 referendum about making australia a republic

• political factors like thinking it will give the govt more power and states less

• lack of education and people who dont know vote no

1967 referendum

• firstly to remove the words "other than the aboriginal people in any state" in s51. (regarding to who parliament can make laws about)

• secondly to remove section 127 entirely 'In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives should not be counted

• there was no ‘no’ campaign as both parties agreed

• all states over 80% yes votes

• overall 90.77% voted yes, which was the biggest in history

• combined with a second statement about increasing members in HOR which failed at 40% so shows people considered their votes well.

2 high court cases that changed the constitution

• Ha case: s86+90 - expanded definition of 'excise' to include tobacco licencing fee

• Vanderstock case: s86+90 - expanded to include usage charge for electric vehicles

2 case examples of implied freedom of political communication

1. precedent case: Australian Capital Television v Commonwealth(1992)

• the political broadcast act 1991 limited political advertising during election campaigns.

• tv companies challenged this

• under section 7 and 24, it states that govt is chosen by the people, so the high court declared this means the voters need information about their candidates via tv ads

2. Clubb and Edwards (2019)

   • Tas and Vic passed laws establishing safe access zones around abortion clinics, banning protesters within certain distance

   • Protesters challenged laws in HC

   • Hc ruled that laws were proportional, allowed, protestors could not challenge law

2 referral of powers examples

• family law

• terrorism

what is unchallenged legislation

• Commonwealth legislation must be lawful under the constitution, if not it risks being struck down as ultra vires (outside of powers) by the High Court.

• But, what if the commonwealth passes this legislation, but no one challenges it in court?

• You need standing, money, resources to bring case to High Court, but most people do not have standing

example of unchallenged legislation

commonwealth scientific and industrial research organisation (CSIRO)

• australias main scientific research body, they invented wifi

• the company was established by Science and Industry Research Act 1949 which the commonwealth passed despite having no constitutional power on

• however never been challenged due to all the great things theyve done