The referendum - Practice Revision materials for Law Units PDF

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4.1.5 THE SIGNIFICANCE OF ONE HCA CASE INTERPRETING SECTIONS 7 AND 24 OF THE CONSTITUTION •

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S7 and 24 of the Constitution establish the composition of the Senate and the House of Representatives, stipulating that its members are to be ‘directly chosen by the people’ through regular elections. As such, this establishes a system of representative government. Vicki Lee Roach case (Roach v Electoral Commissioner (2007) HCA 43) is a notable example of a HCA case that has interpreted sections 7 and 24 of the Const. FACTS: In 2007, female prisoner Roach launched case in HCA to clarify the constitutional protection of the right to vote. The 2006 amendment of the Commonwealth Electoral Act 1918 (Cth) imposed a complete ban on prisoners voting come election. Prior, only prisoners serving more than 3 yrs were disqualified. She argued that ban was invalid as it interfered w/ system of rep gov and was in breach of s7&24, as well as being in violation of the implied right to political freedom. HCA justices held that the Electoral Act amendment was invalid and unconstitutional as it was inconsistent with the principle of rep gov. Old ban on prisoners of 3+ years was still valid after case. SIGNIFICANCE: HCA’s decision affirmed that adults have a constitutional right to vote in elections, protected through the notion of representative government established by s7&24. HCA justices did not, however, go as far as to say that it was an implied right. Thus, rep gov can act as a restriction on the law-making powers of the Commonwealth, which is unable to legislate away the right to vote w/o good reason (eg engagement in serious indictable offence which contradicts community values, thus results in incarceration and removal from society for a long period of time).

Q: Discuss the impact of one significant High Court case in the interpretation of sections 7 and 24 of the Australian Constitution. Sections 7 and 24 of the Constitution state the composition of both the House of Representatives and the Senate, and thus enforce a system of representative government in which members of parliament are chosen by the people and represent and apply societal values in the law-making process. The High Court case of Roach v Electoral Commissioner (2007) was initiated after an amendment to the Electoral Act which banned all prisoners from voting in national elections. Prior to this amendment, only prisoners serving a sentence of three years or more were prohibited from voting. Vicki Lee Roach – an Aboriginal woman serving a sixyear sentence – challenged the validity of this law in the High Court, claiming that the amendment was unconstitutional and restricted the functioning of a representative system of government under sections 7 and 24. Roach also claimed that right to vote was an implied right. In a majority decision, the High Court justices held that the amendment to the Electoral Act was indeed unconstitutional, and whilst it was a structural right to support the principle of representative government, it was not an implied right. The decision of Roach v Electoral Commissioner thus determined that the Act’s amendment was invalid. The original law, however, still stood, and the plaintiff was still unable to cast a vote due to the duration of her sentence. This High Court decision was significant as it affirmed the structural right of all Australian adults – to the exclusion of some populations, including prisoners serving sentences of

more than three years – to vote in elections. This right ultimately upholds the system of representative government as established by sections 7 and 24 and restricts the lawmaking powers of parliament to legislate away the right to vote without good reason.

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The referendum process allows the people to change the Const, as well as protect it by voting against a proposal. Compulsory for all on electoral roll. 8/44 have been approved in history. FACTS: 1967 Referendum proposed two amendments to Const in regards to Indigenous Australians – for aforementioned populations to be included in population statistics (more to do with gov funding per capita), as well as the ability of the CommP to make laws regarding Indigenous people. Successful, with support from majority of states and 90.77% nationwide. SIGNIFICANCE: The successful 1967 Referendum altered sections 51(xxvi) and removed 127. S127, which prohibited Indigenous Australians from being counted in population statistics, was eradicated entirely to ensure their inclusion. S51(xxvi) was amended, with the phrase ‘other than the Aboriginal race in any state’ removed from the subsection. The latter amendment meant that the CommP could now legislate with regard to Indigenous Australians. This referendum also resulted in a shift in the division of law-making powers, as the authority to legislate became an area of concurrent power, whereas it was previously a residual power.

4.1.7 THE SIGNIFICANCE OF ONE HCA CASE WHICH HAS HAD AN IMPACT ON THE DIVISION OF CONSTITUTIONAL LAW-MAKING POWERS •

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Under s76, the HCA is the only court w/ power vested to interpret Const. However, a challenge must be made by someone with standing (party must be directly affected and suffer harm in some form). This can occur when legis. is passed that is ultra vires (beyond parliament’s power). The Brislan case (R v Brislan (1935) HCA 78) is a case which has had an impact on the division of constitutional lawmaking powers. FACTS: s51(v) vests in Comm power to legislate with regard to postal, telegraphic, telephonic and other like services. Wireless Telegraphy Act (1905) requires those whom own wireless sets (radios) to hold license. Defendant was charged for not having license. Brislan challenged validity, claiming that Comm was not vested w/ power to legislate in area, and that ‘other like services’ did not include wireless sets. Case required HCA to interpret meaning of ‘other like services’ – decided that wireless set was a ‘like service’, thus the Act was valid. SIGNIFICANCE: Significant because resulted in a shift in division of powers. Extended the meaning of s51(v) and strengthened the powers of the Feds by giving the CommP more legislative ability. Made communication a concurrent power, and today both the CommP and states can make laws regarding television and internet, amongst others – s109 applies.

Q: Referring to one case, discuss how the High Court has impacted on the division of lawmaking powers. (5 marks) The division of law-making powers refers to the way in which legislative powers are allocated between state parliaments and the Commonwealth, in accordance with the Australian Constitution. Exclusive powers are solely exercisable by the Commonwealth, residual powers by the states and concurrent powers are shared between the state and

the Commonwealth. One case that resulted in a shift in the division of law-making powers was R v Brislan. Section 51(v) vests in the Commonwealth the power to legislate with regard to communication and other ‘like services’. The Wireless Telegraphy Act (Cth) required those whom owned a wireless set to hold a license, to which the defendant was charged due to a failure to comply. Brislan challenged the validity of this law, claiming that the Commonwealth was acting ultra vires as this was an area of residual power. The High Court interpreted the meaning of ‘like services’. It decided that the phrase included wireless sets, and that the Act was indeed valid. This case impacted the division of law-making powers as the High Court interpreted ‘like services’ to include wireless sets, thereby extending the meaning of section 51(v). It also resulted in a shift in the division of powers, affirming that telecommunication is an area of concurrent power, thus broadening the law-making ability of the Commonwealth Parliament....