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How Can The Division Of Law Making Powers Between Commonwealth And States Be Altered? (Australian Legal System)

1238 words - 5 pages

When the founding fathers of our nation came together at the turn of the nineteenth century to establish the law-making capacities of both the federal and state governments, they had a definite vision that the majority of political activity should continue to be performed at state level. However, it is a usual feature of a federal system of government that the balance of law making powers will shift with time and this has definitely been the case with Australia. Over the past one hundred years, the Commonwealth has become more politically powerful by a variety of means, including successful referenda, the states' referral of powers to the federal parliament, as well as High Court interpretations of the Constitution.The only means by which to change to written word of the Constitution is by referendum. Writers of the Australian Constitution considered the words to be so important, they made changing them a very difficult task. In order for a referendum to result in change, it must be introduced to either the House of Representatives or the Senate in the form of a bill. It needs to be approved by parliament before it is proposed to the public; both houses of parliament must pass this proposal. However, special provisions involving the Governor-General do exist when one house rejects a referendum proposal twice. After the bill is passed in both houses, the amendment is imposed to the people as a 'yes' or 'no' vote. In order for alteration of the Constitution to occur, the referendum must receive a 'yes' vote from a majority of electors and a majority of states (four out of six). This system of changing the constitution was adapted from the Swiss Federation's method.It can be seen that Australians are not great advocates of change. Out of forty-four proposed amendments to the written word of the Constitution, only eight have been passed. The most notable of these occurred in 1967 when s.127 of the Constitution was repealed and Aboriginal people were recognised as citizens of Australia and granted the right to have their votes counted for the very first time. The failure of referenda is often attributed to voter apathy and misconceptions about the meaning of the question, some people say that it is because Australians are 'non-thinkers' and 'negative'. Generally, referenda do not succeed because the process of changing the Constitution is instilled in politics.Co-operative measures between the two tiers of government can also be seen as a medium in changing the balance of law-making powers within Australia. Firstly, with the co-operation of the states, the concurrent powers of the Commonwealth may be extended under s.51 (xxxvi), whereby the states (either in groups or individually) refer their power to the Commonwealth Parliament. An example of this occurred in 1977 when both the South Australian and Tasmanian governments referred their law-making powers concerning railways. Once these powers have been referred, the states may not be granted them...

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