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In 2002 the Prime Minister publicly considered holding a referendum to change the Commonwealth Constitution - VCE - SSCE Legal Studies - Question 8 - 2004 - Paper 1
Question 8
In 2002 the Prime Minister publicly considered holding a referendum to change the Commonwealth Constitution. The opposition indicated that it was worth thinking abou... show full transcript
Worked Solution & Example Answer:In 2002 the Prime Minister publicly considered holding a referendum to change the Commonwealth Constitution - VCE - SSCE Legal Studies - Question 8 - 2004 - Paper 1
Step 1
Explain how the Constitution can be changed by holding a referendum.
Answer
The Constitution can be changed through a referendum, which is a direct vote in which an entire electorate is invited to vote on a particular proposal and can result in the adoption of a new law or constitutional amendment. The process is outlined in Section 128 of the Constitution, which requires that:
- The proposed law must be passed by an absolute majority in both Houses of Parliament.
- It must then be put to the voters in a referendum, where a majority of voters in a majority of states must support it, along with a majority of voters nationwide.
This ensures that any changes to the Constitution reflect both national and regional consensus.
Step 2
Comment on two factors that could influence the outcome of a referendum.
Answer
Two significant factors that could influence the outcome of a referendum include:
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Public Opinion: The prevailing attitudes and beliefs of the electorate play a crucial role in determining the success of a referendum. Campaigns and media coverage can shape how people perceive the proposed changes, which may lead to either support or opposition.
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Political Context: The political environment at the time of the referendum can also greatly affect its outcome. For example, if the referendum is presented during a period of political unrest or dissatisfaction with the government, voters may be less inclined to approve changes, regardless of the content of the proposal.
Step 3
Using one example, illustrate how the lawmaking powers of the State and Commonwealth Parliaments have been changed by High Court interpretation of the Commonwealth Constitution.
Answer
One prominent example is the interpretation of the "external affairs" power found in Section 51(xxix) of the Constitution. The High Court has interpreted this power broadly, allowing the Commonwealth to legislate on matters that are internationally relevant and have a domestic impact. For instance, in the case of Tasmanian Dam Case (1983), the High Court upheld the Commonwealth's ability to legislate regarding environmental protection, impacting both State and Commonwealth lawmaking powers. This interpretation demonstrates how judicial review can alter the balance of power between different levels of government.
Step 4
Describe how courts and Parliament make law.
Answer
Courts and Parliament both play essential roles in the law-making process, but they operate differently:
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Parliament's Role: Parliament creates laws through a formal legislative process involving the proposal, debate, and voting on bills. Bills can be introduced in either House and must pass both Houses before receiving royal assent from the Governor-General to become law.
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Courts' Role: Courts interpret and apply the law. When a case is brought before a court, judges examine the relevant statutes and precedents, applying them to the facts of the case. Their rulings can set precedents that guide future cases, effectively creating common law.
Step 5
Discuss two differences between the lawmaking processes of courts and Parliament.
Answer
Two key differences between the lawmaking processes of courts and Parliament include:
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Nature of Lawmaking: Parliament creates statutory laws through a planned and structured legislative process, while courts create common law through case-by-case adjudication and legal interpretation. Courts react to disputes that arise, rather than proactively creating laws.
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Scope of Authority: Parliament has the authority to legislate on a wide array of subjects, including those outside the judiciary's scope. Courts are limited to interpreting existing laws and do not have the power to create new laws unless there is a gap that needs addressing. Thus, the interaction between the two can result in a dynamic area of law.