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March 29, 2024, 06:46:08 am

Author Topic: Just 2 legal questions I would love some help with / ideas on :)  (Read 1068 times)  Share 

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12345luke

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- To what extent does the Constitution limit the powers of the Federal Parliament?

- The process of a Referendum is primarily responsible for the success or failure of a change to the Constitution. Discuss.

What are your ideas / opinions on what to say / how to answer these two questions --- any help would be greatly appreciated!

Thanks in advanced! :)

eeps

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Re: Just 2 legal questions I would love some help with / ideas on :)
« Reply #1 on: April 07, 2012, 01:02:23 pm »
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1. This question refers to the restrictions placed on the Commonwealth Parliament by the Commonwealth Constitution. For example, federal parliament cannot make laws which restrict: the free exercise of religion and free trade between states. However, having said that, the Commonwealth Constitution does also set out the Commonwealth's law-making powers - exclusive/concurrent powers.

2. I would agree with the statement given. Refer to the low success rate - 8/44 referendums have been successful in recent years. Give reasons why the referendum process has been unsuccessful. Note that it says 'change to the Constitution' which implies you can't really discuss High Court interpretation or the referral of powers.

Newton

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Re: Just 2 legal questions I would love some help with / ideas on :)
« Reply #2 on: April 13, 2012, 12:02:38 am »
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1. This question in simpler words is asking how the constitution can stop the federal parliament from exercising certain laws. The constitution limits the powers of the Commonwealth Parliament or federal Parliament in many ways. The Commonwealth Parliament cannot initiate legislation where the state has residual power. Moreover under section 116 the the Commonwealth cannot make laws concerning the establishment of Religion.

2. I believe you should start of with "a referendum is the only way to change the actual wording of the constitution". Than proceed to give a short explanation of the "process of a referendum". For example, suggestions for a change to the wording of the constitution arise, the change to the wording is drafted, The bill can than be passed through both houses parliament or a majority in one house which than requires approval of the Governor General. In order for a referendum to be successful, it must meet the requirements of section 128, which require a majority of 'yes' voters (50% and more) while also gaining a majority of states/territories (4 out of 6 states). However if the referendum does not meet the requirements of section 128 and does not obtain a double majority, the referendum will fail and therefore the wording of the constitution will remain the same.

meganrobyn

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Re: Just 2 legal questions I would love some help with / ideas on :)
« Reply #3 on: April 16, 2012, 10:08:37 am »
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- To what extent does the Constitution limit the powers of the Federal Parliament?

- The process of a Referendum is primarily responsible for the success or failure of a change to the Constitution. Discuss.

What are your ideas / opinions on what to say / how to answer these two questions --- any help would be greatly appreciated!

Thanks in advanced! :)

1. This question wants two things: specific powers and restrictions. The Constitution limits the power of the Cwlth because the Cwlth can ONLY make laws in areas specifically listed in the Constitution, primarily in the s51 Heads of Power list (and divided into concurrent and exclusive powers). If the area is not listed in the Constitution, the Cwlth cannot use it. [You would then define specific powers and give a couple of examples.] The Constitution also limits the power of the Cwlth by imposing both express (eg s116) and implied (eg residual powers or the separation of powers) restrictions on its power; these can be absolute prohibitions or just limitations on the full exercise of power. The Cwlth cannot legislate in any areas the Constitution says are outside its power. [You would then use a couple of examples to illustrate this.] **Amount of detail depends on number of marks allocated.**

2. This question should really only be worth a few marks, because it limits what you can discuss quite significantly. It doesn't ask for the process of a referendum, so you don't need to include that - but content regarding the process should come out in the course of your answer. Essentially this question is asking why the double majority is so difficult to achieve, so you want to look at the marks and give an appropriate number of reasons. Look at state interests versus national ones; the concentration of nationwide votes in populous states such as Vic and NSW; the fact that five times we've had a nationwide majority without a state majority, but not the other way around. Chuck a couple of examples in if you can to illustrate.
[Update: full for 2018.] I give Legal lectures through CPAP, and am an author for the CPAP 'Legal Fundamentals' textbook and the Legal 3/4 Study Guide.
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