reply to post by richard42smith
I don't agree with this assessment of the Australian Constitution. There is no bill of rights in the Australian Constitution, as there is in the USA;
We have a right to trial by jury for indictable offences (section 80), however the parliament can change what offences are indictable.
The right to vote in section 41 was a transitional provision, guaranteeing a right to vote for those who had already been granted such right to vote
in state / colonial elections.
I do agree with your assessment that the Constitution has been bastardized though. This country was supposed to be be a federal system with strong
states; the power and responsibilities of the federal government was supposed to be limited by the constitution; most of the powers are contained in
s 51 (xxvi) is the controversial race power.
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect
" (xxvi) the people of any race ,
other than the aboriginal race in any State
>, for whom it is deemed necessary to
make special laws;"
It has been interpreted very broadly by the courts. The words 'deemed necessary' means that the law need not actually be necessary, parliament just
needs to deem it necessary.
This power was amended by referendum to remove the constraint on making laws for aboriginal peoples, not the other way around as was suggested by
This provision was originally enacted with the intent of allowing the federal parliament to discriminate against any race they chose; it was a
response to fears at the time of federation about the influx of immigrants into Australia. The provision sort specifically to allow for discriminatory
laws. The framers of the constitution were well aware of the US constitution and chose specifically not to include a bill of rights.
The move from federalism to centralism is the greatest bastardization of the Australian constitution. The high court has allowed the Commonwealth to
coerce the states into giving up their powers of taxation (see the Uniform Tax Case 1 and 2). As it stands, the federal government can force the
states to do things with the threat of withholding funding. While legally the states could impose their own income tax or GST, it would be politically
impossible, as the people of that state would still have to pay federal taxes.
Further, the external affairs power in s 51 (xxix) can be used by the federal government to pass laws which would otherwise be ultra vires (Beyond
The Emissions Trading scheme was in part (a large part) grounded in the external affairs power - The 'Clean Energy Act 2011' purported to give effect
to Australia's obligations under the Kyoto Protocol and Climate Change Conventions.
However I think it could also be grounded in the corporations power which has also been interpreted very broadly.
Our High Court continually thinks that it change the constitution and subvert the will of the people. Provision is made for constitutional amendment
in s 128 - Constitutional amendment requires referendum and a double majority - that is a majority of the major states and a majority of the entire
population. The High Court however, has changed the Constitution by stealth over the 200 years since federation. We now have a country with impotent
states and an unconstrained federal government. This is a very dangerous state of affairs.
edit on 25-2-2013 by bigdohbeatdown because: (no reason given)
edit on 25-2-2013 by bigdohbeatdown because: (no reason