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Focus question 4: Who has the final say about laws in Australia?

Teaching and learning activities

Activity 1: Writing a constitution ESL Activity 1
Activity 2: Constitutional powers ESL Activity 2
Activity 3: Interpreting the Constitution ESL Activity 3
Activity 4: The Mabo decision ESL Activity 4

Introduction

In Australia we have six State parliaments, two Territory parliaments, and the Commonwealth Parliament. How do you know which parliament can pass laws in which areas of the law? A document called the Constitution spells it out.

Activity 1: Writing a constitution

Would you be a good constitution maker? Try this situation.

Six school teams in your area have decided to join together to compete against each other in a particular sport. (You choose the sport.) The new sports association is to have one member from each school on its board of management. It needs a constitution to set out which matters are to be decided by the association. For example, it will need a set of rules about what colours the teams wear when they are playing against each other - they cannot all have the same uniforms!

You have been chosen as your school’s member of the board. An early task is to help set up the constitution for the new association. Here are important issues for the board of management to work out.

  • Who needs to agree to the constitution before it starts being used?
  • Who should have the power to make or approve the fixture of events?
  • Who should decide the ‘cut-off’ ages for team players?
  • Who is the final authority on the game rules for association games?
  • Who decides where individual teams will have their home ground?
  • How should the constitution be changed if the need arises?

Your task is to decide which sorts of issues the board needs to be able to make rules about. You do not have to make the rules - just decide on the issues that need rules if the new association is to run fairly and smoothly.

1a Give your association a name.

1b Head a page of your workbook: The Constitution of [and fill in the name of your association].

1c List the six school members of the association on the page.

1d List the areas of rule-making power which your new association needs. You should list at least eight areas in which the new association should have power to make laws or rules.

1e Now that you have drafted your constitution, check that it covers both the situations below. If it does not, add to or change your constitution so that these situations are covered.

  • Two schools each want to have the same nickname. Neither will give up the name. Have you given yourself the power to control the names of the clubs?
  • Two friends are at different schools, and therefore on different teams. They decide they want to be in the same team. Have you given yourself the power in your constitution to allow this or prevent it?

1f Now it is time to test your constitution! Does it meet the needs of the following five situations? Give yourself one point for every ‘yes’ response.

Situation

A    Some clubs decide that they do not like parts of the constitution. Do you have rules about changing it? yes no
B    A new school wants to be admitted to the competition. Does your constitution allow for this to happen? yes no
C    While two teams are playing, one player hits another. Does your constitution have a means of inquiring into such an episode and issuing penalties to offenders? yes no
D    Your sporting venue charges money for hire of some of the facilities. Have you given your association the power to raise money from the teams? Have you given your association power under your constitution to raise money? yes no
E    One school’s team cheats! Have you given your constitution the power to expel the team from the competition? yes no

1g Add up your points:

Score of 4-5: Excellent! You have really got the hang of it! Can you improve it further?

Score of 2-3: Good - but you need to think more about what a constitution should do. Redraft your constitution.

Score of 0-1: Don’t leave school to become a constitutional lawyer just yet! Redraft your constitution. Have a look at some other people’s first.

Our Constitution

A constitution sets up the areas in which an organisation can make rules or laws. If the constitution does not give an organisation power in certain areas, it cannot make rules in those areas.

All Australian States and Territories, and the Commonwealth, have their own constitutions that set out the areas in which their main law-making bodies, the parliaments, can make laws.

In summary, there are a few areas in which only the Commonwealth can make laws, many areas in which both Commonwealth and State or Territory parliaments can make laws, and many other areas in which only the State or Territory parliaments can make the laws.

Before 1901, every Australian State (then called colony) had its own constitution and could make laws for itself and its inhabitants. They were like separate nations.

The purpose of Federation was to give some of these powers to a new national body, so that it could make laws which covered all Australians. The Commonwealth Constitution came into effect in 1901 with Federation. The Constitutions of the States continued.

The group of people who wrote the Australian Constitution set out how the new Commonwealth system would work, and especially made clear which powers the new Commonwealth Parliament would have. The colonies (or States as they would become) would give up those law-making powers to the new Commonwealth.

Activity 2: Constitutional powers

Poster CardMost of the areas in which the Commonwealth Parliament can make laws are set out in Section 51 of the Australian Constitution. The Constitution is available in the Selected Sources. It is also available on the Stories of Democracy CD ROM.

Some of the powers of the three levels (Commonwealth, State and local) of government can be seen on the ‘Levels of Government’ poster.

2a Look at the list of powers set out in Section 51. Give each a symbol to indicate what it covers. For example, you might put $ beside ‘currency’. Some might be hard, but give it a go!

If an area or power is not listed as a Commonwealth power in the Constitution, then the Commonwealth Parliament cannot make laws in that area. Only the States can make a law in that area.

2b Tick any of the powers listed in Section 51 that have ever affected you directly. For example, those of you who have gone overseas for a holiday needed a passport, so would tick ‘immigration and emigration’. How many of these laws have affected your life?

The High Court and the Constitution

In instances where it is not clear if the Commonwealth has the power under its Constitution to make laws in a particular area, the High Court decides how the Constitution should be interpreted, and whether the law-making power in that area belongs to the Commonwealth or to a State or Territory.

Section 51 (v) of the Constitution gives the Commonwealth power to make laws about ‘postal, telegraphic, telephonic and other like services’. When the Constitution was written in the 1890s, there was no radio, television or Internet. Do you think the Commonwealth has the power to make laws about radio, television and the Internet, or are these matters over which the States have the power?

The High Court would decide that the Constitution’s ‘telephonic, telegraphic and other like services’ covers radio, television and the Internet as they fall into the same category as telephone and telegraph. So they would be included in the category, even though the makers of the Constitution did not know about them and even though they did not even exist at the time.

Activity 3: Interpreting the Constitution

The list of powers in the Australian Constitution includes ‘defence’ - protecting the country in time of war. The Commonwealth Parliament, therefore, has the power to make laws about defence.

But suppose that, in time of war, the Parliament passes a law setting the price of petrol at $5.00 per litre to discourage its use by civilians. The Parliament says that the new law is important for defending Australia, as petrol needs to be available to the fighting troops.

Do you think the Australian Constitution would give the Commonwealth Parliament the power to make this law? In making your decision, think about these two questions:

During World War I the High Court in an appeal actually did decide that ‘defence’ included any act which could help the nation operate effectively in time of war. So, while the Constitution does not give the Commonwealth the power to fix prices of goods in times of peace, it can do so in wartime if it helps the national war effort.

Activity 4: The Mabo decision

As well as having the power to make judgements about interpretations of the Australian Constitution, the High Court is the final court of appeal in Australia. The Mabo decision is an example of the High Court acting in this role.

In 1992 the legal actions of a group of Torres Strait Islander people, led by one man, Eddie Mabo, resulted in an important High Court decision on the law relating to ownership of land. The Commonwealth Parliament later passed a law to acknowledge the change.

StoriesUse the Stories of Democracy CD ROM to answer the following.

4a What was Eddie Mabo’s argument about the land?

4b How did he use the courts to try to change the law?

4c Why was the High Court decision so important?

4d How did the High Court decision change the law?

4e Why did the Parliament need to make a law about the same thing?

4f Why was it difficult for the Commonwealth Government to have the Act passed by Parliament?

ESL activities

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