Legal Studies - Constitution
The balance of power between the commonwealth and states can be modified directly through a referendum. Under section 128 which states that the proposed change to constitution must first be passed by the commonwealth parliament and then a 'double majority' must attained in a compulsory vote in order for the actual words of the constitution to change. Changing the words in the constitution would mean that the powers of either state, or the commonwealth parliament would wither increase or decrease. However the Referendum is not a very effective method of changing the balance of power as since 1901 only out of 44 referendums have been successful, and t
An indirect way of modifying the balance of power between commonwealth and the states is through high court interpretation. This is a much more effective method then the referendum. These are called residual powers and include legislating on criminal law, police etc. The constitution states in S107 that there are powers not listed in it which are to be left solely to the states. he alteration of the balance of power has not been very significant. The commonwealth is forbidden to legislate in areas called specific prohibitions. The commonwealth of Australia Constitution Act 1900 limits the law-making power of the commonwealth parliament as it sets out specific powers (S51) that both state and commonwealth parliaments have regarding law making. Concurrent powers cannot change constitution without referendum and high court. Since 1900 there have been several cases - Brislan's case (1935) - high court ruled under S51 that wireless sets are apart of 'postal', telegraphic and other like services', therefore giving commonwealth parliament power to legislate in the case of wireless sets - and Franklin Dam case (1983) - Commonwealth parliament legislate international affairs even if it interferes with residual powers. Franklin Dam covered by international treaty.
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