70102 Lecture Notes - Lecture 6: Commonwealth V Tasmania, Primary And Secondary Legislation, Constitution Of Australia
Seminar 6 – The constitutional framework 1: Federalism
3.10 –3.36
3.1 – The constitution is a cultural symbol. The only two references to Indig. People in
constitutions were both negative, this is testatemnt to the constitution as a cultural
construct that reflects and articulates the values and beliefs of the society which it is part.
Preamble – an introductory statement that may outline the objectives of a document. Also
can reflect history and politics of nation at a time.
Australian constitution preamble to Imperial Act not to Constitution.
- No bill of rights. When Australian constitution was drafted rights were not accorded
the same priority they are today. Nor did those who were most in need have the
power to assert their need for rights. It also reflects the confidence of its drafters in
the common law and parliament to protect those interests and values which they
wished to prevail. Any express rights have been interpreted quite narrowly by the
High Court.
There has been some discussion about a bill of rights in statutory form.
There was a recommendation, it was not adopted instead some reforms that were adopted
include The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) which requires a
statement of compatibility with international human rights to accompany each new federal
bill.
Some legislative charters have been enacted at a state and territory level. E.g The Human
Rights Act 2004 (ACT). In broad terms, it requires scrutiny of bills for consistency with
human rights and interpretation of laws in a way that is consistent with human rights.
- Statutory rights can be overturned by later legislation and entrenched rights are
hard to change. Due to our federal system with integrated court system it would
have to be carefully drafted otherwise it would limit its effect.
Constitutions as frameworks
The constitution divides power in two broad ways,
- By establishing a federal system
- By creating three arms of cth gvt with specific functions vested in each
The cth creates a federal system and achieves an institutional separation of powers by:
- Specifying separate institutions for the exercise of Cth (legislative, executive,
judicial)
- Preserving, subject to constitution, the existing state constitutions and
parliamentary powers
- Investing the cth with enumerated legislative power, s51
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Document Summary
Seminar 6 the constitutional framework 1: federalism. 3. 1 the constitution is a cultural symbol. People in constitutions were both negative, this is testatemnt to the constitution as a cultural construct that reflects and articulates the values and beliefs of the society which it is part. Preamble an introductory statement that may outline the objectives of a document. Also can reflect history and politics of nation at a time. Australian constitution preamble to imperial act not to constitution. When australian constitution was drafted rights were not accorded the same priority they are today. Nor did those who were most in need have the power to assert their need for rights. It also reflects the confidence of its drafters in the common law and parliament to protect those interests and values which they wished to prevail. Any express rights have been interpreted quite narrowly by the. There has been some discussion about a bill of rights in statutory form.
