2 3 Constitutional restrictions on parliamentary lawmaking processes

2. 3 Constitutional restrictions on parliamentary law-making processes

Quick revision: We learned about the history of the constitution We learned about the division of powers and examples of these We learned what the relevance of s 109 is

Exam questions: Using one example, define the term ‘concurrent powers’. (DEFINE: give the exact meaning of – PEE!) (2 Marks) VCAA 2012 ‘Section 109 of the Commonwealth Constitution acts as a restriction on the state parliaments. ’ To what extent do you agree with this statement? Discuss. (DISCUSS: Give a reasoned argument for and against and you can also give your opinion) (4 Marks) VCAA 2012

2. 3 Constitutional restrictions on parliamentary law-making processes The Constitution places restrictions on the The Commonwealth may only Commonwealth and state parliaments, one of acquire property on just terms which includes the provision that the for a "purpose in respect of Commonwealth can only acquire property on just which the Parliament has power terms (s 51(xxx 1). to make laws". This means that http: //www. youtube. com/watch? v=Gp 6 f 1 EMn 1 lo every law supported by s 51(xxxi) must also be supported by at least one additional legislative power. http: //en. wikipedia. org/wiki/Se ction_51(xxxi)_of_the_Constituti on_of_Australia#Just_terms 4

2. 3 Constitutional restrictions on parliamentary law-making processes The Constitution places restrictions on both the federal and state parliaments with regard to law-making powers. WHY? Restrictions on law-making powers are necessary to reduce the potential for conflict between the Commonwealth and states, and to ensure that the Commonwealth has exclusive control over areas of national security and financial management

Restrictions on the Commonwealth Parliament Does not have the power to legislate where the states have residual power, for example, road rules are different across Australia with regard to the age at which a person can obtain a probationary licence. When the massacre of 35 people occurred at Port Arthur in Tasmania in 1996, there was a call for national, uniform gun laws. The Commonwealth Parliament did not have the authority to act, because firearms are a residual power. Uniformity was achieved when each state passed identical legislation to impose tight restrictions on the purchase and storage of weapons. The Constitution specifically restrict the Commonwealth legislating in certain areas for example, s. 116 concerning freedom of religion. (Table 2. 2 – P 57) Sections of the constitution explicitly refer to some areas of law for example, s 80 of the Constitution states the right to trial by jury on indictment for Commonwealth offences, so the Commonwealth could not legislate to take this power away Protect the states from interference by the commonwealth http: //australianpolitics. com/constitution-aus/text/chapter-5 -the-states Referendum required regarding changes to the constitution (s 128)

Restrictions on the state parliaments If the Commonwealth have been given exclusive power in a certain area then the state cannot legislate