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LAWsome LAWcast  Podcast Host : Olivia Rodrigo from First Class Law Firm

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Commonwealth of Australia Constitution Act.
AN ACT
the C.omuuu•wealth of AIBtraha.

Legal political document   Outlines Took effect on 1st January 1901

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CHAPTER VIII:
Alteration of the
Constitution

Section 128 : Allows constitution to be amended

- Provision of  Section 128  allows Constitution to be changed through a  referendum process. - Founding Fathers intended the Constitution to be amended to keep up with the changing needs and values of society.   - Allows constitutional law to evolve to strengthen social cohesion.

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-90.77% of the nation voted "Yes for Aborigines" - Amendment of  Section 51 (xxvi) of the Australian Constitution  - Gives federal parliament the power to make laws in relation to the Aboriginal and Torres Strait Islander people  - Provides certainty to the Aboriginals  - Created a change in values of society to remove discrimination against Aboriginals and protect their rights

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CONSTITUTION ALTERATION (SENATE ELECTIONS) ACT 1906

[63 & 64 vrc•r.]
Commonwealth of Auatralia (C n. 12.]
Conatitution
tony after the Senate And oneh first
mooting of the following n dissolution themof. Senate divide
senators ebo.en for eaeb State into two an nearly in nun.tuzr
; Of the or
the expiraLiuu ot year. and the of of
at Ot thu year, (rot" beginning Ot
Of afterward.' the of
expiration or yearn the heginning of their term of
The election till vocani place nhAll in the year the expiration
Of nr-e
For the Of Of Of bo
On of following tho Ot
except in tho of tho election and of next after any
of it taken to begin on the first dhy or
January preceding tho dny of hig election.
14. the or dimini•hed. FunYr
of fOr
Of Of •enator• for Stata nn it to
maintain r•vulnrity in the rotuiioa.
15 If the place nf a ænntor vacant Iv'forø the expiration Of his
term of tho Ilotlße. ot Parliament of t.ho Stato for which he
chou•n .hnll. sitting nud voting tog"tlwr, A penon bold the lilace
until tbe expiration of the Orto. or until the election of herein.
aner provided. whicbever tir*t blippens if thc Houses of Parliament of
the State are not in at tho time when tho in notified.
Governor of State. with the advice of Executive Council thereof. may
appoint a to 1.01d the until tho of foarteen days after
the of tho next •emionof tho Pnrliarocot of the State, or until
election Gf a wbEehever tiBt hapr*na.
At the general election Of Of the ot
or at the next ot "enators for tho State. whichever fine
'hull. if term not then expired. to hold the place
frotn the date of his election until tho expiration Of ebe term.
The name of tuxy senator so or Certified by tho
Governor at tho Stato to Governor-Gooeml.
ld. qualiii•ztious of •hall the name Eb06e Of member
17. Tho Senate nbnll. before proceeding to despatch of any other
boginoa, to I.e the President of the Seuate; often
of I'rv*ideut vacant the Senate again oeuntoe
to 10 the President.
The President Allan eoaso to bold hib otfiee if he to
He by a vote oi Senate, or his
or h" hy to
18. or during any absence of tho president, tho may
to I.erfortti his duties In his absence
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FIRST SUCCESSFUL COMSTITUTIONAL REFERENDUM

- 82.65% voted in favour  - Altered  Section 13 of the Australian Constitution  to cause Senator's terms to commence in July instead of January

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- Constitution Alteration (Retirement of Judges) Act 1977 - Amendment of  Section 72 of the Australian Constitution - Alter the provisions in the Constitution for payment and terms of office of judges - Increases quality of justice system and rises confidence of people  - Provides avanue for the changes in politics, values, and views of society

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The Australian Constitution  IS NOT truly Organic

Success rate of the Australian referendums are very low  Only  8  successful attempts out of  44  proposal since 1901

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- Founding Fathers made the process of amending the Constitution difficult in order to keep the Constitution stable  - To provide a sense of certainty for the government to run the country

- In the parliamentary and referendum stage, a referendum must obtain an absolute majority in both Houses to obtain an approval together with a dual criteria requirement

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-  Alter the Constitution to establish the Commonwealth of Australia as a republic with the Queen and Governor-General replaced by a President - Did not achieve success as they failed to satisfy democratic criteria - Did not gain an absolute majority, just 45.13% 'Yes' votes - Not truly flexible

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Section 76 (i) of the Constitution expands or restricts the use of ambiguous words

Founding Fathers have intentionally inserted ambiguous words to be interpreted in accordance to the changing needs and values of the society.

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- Word interpreted = "Other like services" - Validity of  Section 51(v) of the Australian Constitution  was challenged - Chief Justice Latham of the High Court of Australia decided wireless radio is also a mode of communication and is considered as "other like services" - Organic as the High Court's interpretation proves that they are trying to keep up with the change in  technology

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- Word interpreted = "external affairs" - Interpreted under Section 51(xxix) of the Australian Constitution - Mr Koowarta argued on validity of racial discrimination  - High Court interpreted "external affairs" as 'anything of internation concern'. They decided that racial discrimination was indeed a matter of international concern - Provides certainty to the Aboriginal people as their rights are protected - High Court was trying to keep up with the change in values of society.

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High Court's interpretation often results in a shift of  states lawmaking  power to the  Commonwealth Parliament

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Residual Powers
• These powers are those that were left with the states
at the time of federation and therefore are not listed in
the Constitution (residual- left over)

- States lawmaking power is not codified in the Constitution  - Anything that is not specified in the Constitution should belong to the state parliament = residual power

- Since states lawmaking power is not codified, it now becomes vague as to which area belongs to the lawmaking power of states - Causes High Court to shift lawmaking power to the Commonwealth Parliament.

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- Validity of  Wireless Telegraphy Act 1905  was challenged which was passed by the Commonwealth Parliament - Act was ultra vires - High Court interpreted that wireless radio was  'like services' thus automatically shifting the law-making power to the Commonwealth Parliament. - Proves the inflexibility of the Constitution as High Court expanded Commonwealth's power at the state's expense - Failed to adapt to changing needs of society

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- Racial discrimination was not written in the Australian Constitution, so by right, it should be a state residual power. - State Parliament was confident that the area of  racial discrimination belonged to them.  - Chief Justice Sir Harry Talbot Gibbs of the High Court of Australia decided it was not a residual power but a shared power between Commonwealth Parliament under Section 51(xxix) - Interpretation validated Racial Discrimination Act - Failed to adapt to changing needs of society

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-Australian Constitution is  organic   -Flexible and provides certainty in accordance to the changing values and needs of the society

1999 referendum would actually help to break the mould of Australian referendum practice and ensures that future referendums will be more open and participative, but at the same time less predictable and manageable in hopes of a more open community deliberation   -John Uhr-

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