Powers Of The Commonwealth And The States example essay topic

The Commonwealth Constitution divides the powers of the Commonwealth and the States so that each have areas in which they can legislate. Outlined in section 51 are specific powers, referred to as 'the 39 heads of power'. These specific powers are the powers in which the Commonwealth is allowed to legislate. Some examples of powers outlined in section 51 are taxation, copyright and marriage. Many of the areas of power outlined in Section 51 are concurrent powers meaning that both the Commonwealth and States can legislate in the area. Exclusive powers are outlined in Sec 52 of the Constitution, meaning that the powers belong solely to the Commonwealth.

Section 52 (i) says; any crown land is exclusive to the Commonwealth and therefore may make law in respect to crown land. Section 52 ( ) provides that any part of the constitution that outlines exclusivity are sole powers of the Commonwealth. Examples are sec 114: no state shall maintain a military or navies forces, and section 115: States do not have the right to coin money. In contrast to the Commonwealths powers, the states have sole power over all areas not mentioned in the constitution. These powers are referred to as residual powers. Sections 106 and 107 of the constitution reassure that the state get these powers.

Section 106 says that a states constitution shall stay the same unless been changed by the state. Section 107 says that states have control of the powers not specifically mentioned in the constitution. Such powers are Health, Education and Transport. The Commonwealth and the states both have rights to legislate in concurrent areas. Examples of concurrent areas are taxation, fair trading laws and environmental issues. However, if an inconsistency arises between the State and the Commonwealth Section 109 reveals that the Commonwealth will prevail to the extent of the inconsistency. b) By Sections 75 and 76 of the constitution the High Court has power to hear matters relating to the constitution.

Before the 1920's the interpretation of the constitution from the High court was very narrow. The constitution was been interpreted as anything not in the Constitution was in the power and control of the states. This was mainly because at this time judges wanted to protect the interests of the states. This made the balance of powers very favoured towards the states. However in recent decades the High Court has adopted a broader interpretation of the constitution therefore altering the application of it. The case that started this broader interpretation was the Engineers case between the Amalgamated Society of Engineers vs. the Adelaide Steamship Co.

The High Court found in favour of the Commonwealth altering the way in which judges interpreted the constitution to give broader power to the commonwealth. One area in which the balance of power has been significantly changed is in the power of external affairs. The case that impacted greatly on this area was the Franklin Dam Case, Commonwealth vs. Tasmania (1983). In this case the Tasmanian Government wanted to turn the Franklin River into a dam.

This sparked a public outcry and pressure groups forced the Commonwealth to legislate to stop the building of the dam. The Tasmanian Government took the Commonwealth to the High Courts alleging it was out of its jurisdiction. The Commonwealth argued that because they were signatory to a treaty on wildlife protection they were obliged to legislate in the area. The High Court found in favour of the Commonwealth and agreed that because they were bound to a treaty they were able to legislate in the residual power of environmental issues. The effect that this decision has on the law today is that now any treaty that Australia is a party to, automatically gives power to the Commonwealth to legislate in residual powers.

This is one major example of how High Court interpretation has greatly impacted on the balance of power between the States and the Commonwealth. Early on the High Court made decisions to protect the interests of the States but now, you can see that the High court has adopted a much broader view on the constitution to give new meaning to different parts of the Constitution and to give the Commonwealth more power. c) A referendum is a very democratic way of changing the Constitution because it asks the voting population whether they want the change or not. It also takes into account the needs of the states therefore we see that it is very democratic. Although this method of changing the constitution is democratic, it really isn't all that effective. This shows as only eight out of forty two proposed changes have been successful. And those that have been successful have only changed minor areas of the constitution.

Referendums are not very effective because the process required to achieve success is very difficult. This is because of the need for a double majority. A double majority means majority of voters and majority of states to be successful. An example of how difficult this is is the 1977 referendum of simultaneous elections. 62% of the population voted for the change but only 31% of states voted for the change, therefore the proposal was not carried. Another reason why referendums are not effective is because there is a lack of understanding within the community about the proposals.

People generally lack awareness of the issues involved and what will be changed therefore people vote 'No' from the fear of not understanding. An example of this was the 1999 republican referendum where people were not to sure of what exactly was going to be changed within the constitution. Furthermore referendums are not successful because of the way Australian people are. Australian people are seen as conservative people who are not very trustworthy of the government. They see parliamentary figures as dodgy people who are only looking for a grab of power. The Australian population is also ageing and therefore our population is more conservative and not willing to change so easily.

Because of this Australian people are hard to convince when it comes to changing the law. Finally referendums can only be effective if there is bi-partisan support for the issue of the change. If there is not bi-partisan support then it is almost certain that a double majority will not be reached. This is because people usually support in favour of their party's recommendation. Overall a referendum is not a very effective way of changing the constitution.