ANOTHER 3 QUESTIONS...
1) When a state refers a area of law making power over to the Commonwealth, they pass an act . So each state passes an act referring their power to the Commonwealth so if there are 4 states, 4 acts will be passed by each of these states. When the Commonwealth parl. passes an act to ACCEPT these powers, does it pass one act to receive all? And in the act it says which states it is receiving from? Or it passes one for each state
2) Regarding rights. So it goes like this?
Express Rights is split into ENTRENCHED rights and STATUTORY rights.
Then comes rights PROTECTED BY COMMON LAW.
And IMPLIED rights?
And the difference between rights protected by law and statutory rights is that statutory rights are contained in a bill of rights?
3) Also it says the Cth parliament is the supreme law making body so whatever law it makes prevails...so why is the High Court the final arbiter of their power? It also says that the High Court is unable to change a bill of rights BECAUSE parliament is the Commonwealth is the supreme law making body...Confused..
Thanks..
1. Just one. They're not accepting the power as much as they're *using* the power. For example, in 2003 the Cwlth included this section in their Terrorism act following the state referral:
100.3 Constitutional basis for the operation of this Part
Operation in a referring State
(1) The operation of this Part in a referring State is based on:
(a) the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)); and
(b) the legislative powers that the Commonwealth Parliament has in respect of matters to which this Part relates because those matters are referred to it by the Parliament of the referring State under paragraph 51(xxxvii) of the Constitution.
2. Express rights are those rights written explicitly in one section of the Constitution. Don't talk about statutory or common law rights for Australia, because the topic in the Study Design is the 'constitutional protection of rights'. Implied rights are NOT written explicitly in one section of the Constitution - they are found to be implied by the wording of the Constitution when the HCA reads two or more sections together.
A bill of rights is simply when the rights are all collected together in one list. They can be collected together in a bill of rights in the constitution (such as in the USA or South Africa) or they can be collected together in a bill of rights in a normal statute (such as in Victoria or NZ). If the bill of rights is in the constitution it is called 'entrenched', because the parliament cannot ignore or change it whenever they like; if the bill of rights is in a normal statute it is called 'statutory' because the parliament can ignore or change it whenever they like.
3. The Cwlth Parliament is not the supreme law-making body: parliament *in general* is the supreme law-making body. Cwlth Parliament, for example, is not supreme over state parliament; Cwlth Parliament is the supreme law-maker within its jurisdiction, and state parliaments are the supreme law-makers within their jurisdictions.
The role of the HCA is to decide what exactly their jurisdiction is. That's why the HCA can 'override' the parliament, because when they decide that an area is outside the parliament's power (as per the Constitution), they are saying that the legislation wasn't passed with legitimate power. If the legislation is *within* the parliament's power, the HCA *cannot* override it. The parliament is still the supreme law-maker within its jurisdiction, but the HCA interprets what that jurisdiction includes.
The HCA cannot change a bill of rights the same as it cannot change ANY legitimate act of parliament. The HCA cannot pass or change legislation; it can only interpret it and apply it, and decide whether it is within or outside the parliament's power.
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