Example research essay topic: Constitutional Law High Court - 1,196 words

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The Australian constitution which came into effect on the first of January, 1901 was a significant Act which forged the Federal Commonwealth of Australia. The constitution is a set of rules which have been created to establish principles to help define and control the institutions of government and sets out rules and procedures that must be followed in order for their actions to be lawful. (Butterworth Course Materials, 2001) It has been recently stated by a writer that the Australian Constitution had become fossilized and that changes were urgently required to modernise it. This is because changing the Commonwealth Constitution can only occur in accordance with section 128. Briefly, it states that a bill must be passed by an absolute majority of both houses of parliament and between two and six months after approval by the parliament the proposed alteration must be submitted to voters in each state and territory. The bill then requires a majority of the electorate nationwide plus a majority of voters in a majority of states (4: 6) must approve the referendum.

This process is known as double majority. Only after the bill has been passed with the support of an overwhelming majority from the electorate can the proposed alteration be presented to the Governor General for royal assent. (S, 128, 1900) The first major feature of section 128, states that a proposed alteration to the constitution begins as a Commonwealth Bill that must pass by absolute majority through each house of parliament. (Evans, H, 1997 p. 263. ) This procedure puts effective control for the setting of new agendas strictly in the hands of the Commonwealth Government. Commentators have been critical of this procedure and suggest that it generates a monopoly for the government of the day; automatically helping to create the suspicion of centralised control by the government over changes to the constitution. This sense of suspicion may help to explain the low rate of succession for constitutional referendum held in this country as voters question the motives of the government. (Saunders, C, 1994, p. 55. ) Some writers have criticised the double majority because it has been seen to create such a high standard that the figures necessary to pass constitutional change are difficult to obtain. (Ranney, A, 1978, p. 130. ) If, however, the double majority was to be negated and majority was seen as only being more than half of the states as proposed in 1974, the success of the following referendums would have occurred. Air Navigation (1937) 53. 6 per cent Primary Produce Marketing (1946) 50. 6 per cent Industrial Employment (1946) 50. 3 per cent Simultaneous Elections (1984) 50. 6 per cent Source: Galligan, B, 1989, p. 137. Professor L.

F. Crisp is a critic of voters and blames their ignorance and their conservatism as being major factors leading to a low success rate of referenda. (Crisp, L. F. , 1983, p. 51. ) This point of view by the professor provides an impression that portrays the average Australian voter as puzzled or even confused by the wordings of referenda. Voters may even be overwhelmed by the complexity of the issue that is under consideration and therefore are more inclined to put forward a no vote. Therefore it should be seen necessary that during referendums the public require more information and education regarding the issue being presented. They also need to be informed regarding which particular Act of parliament is being changed as to allow the voter more confidence to support constitutional change.

The Australian Labor Party believes that the constitution and federalism was seen as a barrier to social change. This was because it hindered central government interventions and making solutions to social problems difficult to achieve. (Bennett, S, 1975, pp. 9 - 13. ) This attitude has been important in influencing the way that Labor politicians regard the constitution. The Labor Governments throughout the years have failed to institute constitutional changes, only having a single success in 25 attempts to change the constitution. Labors determination for constitutional change could occur more frequently if their push for a centralised government with more constitutional powers for amendment could occur. Judicial review is a primary method for the constitution to evolve in modern times through the interpretation by the High Court of Australia. Over time the High Court has interpreted, developed and sometimes rewritten the understandings of constitutional meanings without the need for a referendum.

Professor Coper has noted that on at least four other occasions the High Court of Australia has made changes to constitutional law were these previous proposed amendments were rejected through public referendum in diverse areas such as aviation, marketing schemes and freedom of speech. (Coper, M, 1994, pp. 78 - 80. ) The States have the ability to formally authorise the exercise of additional powers by the Commonwealth Parliament under subsections 51 (xxxvii) and (xxxviii) of the Constitution. Although neither subsection has been extensively employed, they have proved useful in areas such as family law and offshore waters. Notably, the Australia Act 1986 (Commonwealth), which severed most remaining constitutional links with Britain, was passed at the request of the Parliaments of all the States' in reliance on subsection 51 (xxxviii). Recently the South Australian Parliament held a citizens convention inviting a select group of the public an opportunity to express their ideas and directions for parliament to take. One issue to arise in this convention was the concept of citizen initiated referendum. This would allow the electorate the ability to suggest ideas that they feel most complied to vote for.

By allowing the electorate an oppurtunity to suggest amendments they may feel more passionate and confident with, may bring about a greater rate of constitutional change. A reflection on the history of the Australian voting public suggests that despite many attempts for constitutional amendment, the record has indicated that Australian voters have been cautious and conservative to change. Perhaps through the provision of powers increasing governments ability to push for amendments, lowering the standard of double majority, giving the people more education or even allowing them to suggest amendments, will Australia see a modernisation of the constitution. REFERENCES Bennett, Scott, Federation, Cassell, Melbourne, 1975, pp. 9 - 13. Butterworths Course Materials, Introduction to Law, LexisNexis Butterworths, The Constitution, pg 27 Coper, Michael, 'The People and the Judges: Constitutional Referendums and Judicial Interpretation' Future Directions in Australian Constitutional Law. Sydney, Federation Press, 1994, pp. 78 - 80.

Crisp L. F. , Australian National Government, Longman Cheshire, Melbourne, 5 th ed. 1983, p. 51) Evans, Harry, (ed), Offers' Australian Senate Practice, Canberra, AGPS, 8 th ed, 1997, p. 263. Galligan, Brian and Nethercote, J. R. (eds), The Constitutional Commission and the 1988 Referendums, Centre for Research on Federal Financial Relations and Royal Australian Institute of Public Administration, Canberra, 1989, p. 137. Ranney, Austin (ed), Referendums.

A Comparative Study of Practice and Theory, American Enterprise Institute for Public Policy Research, Washington, 1978, p. 130. Saunders, Cheryl, 'The Australian Experience with Constitutional Review', Australian Quarterly, vol. 66, no. 3, Spring 1994, p. 55. Section 128, Australian Constitution, 9 th July 1900 Part 4 Australian Constitution, 9 th July 1900, Section 51, subsections; xxxvii & xxxviii

Research essay sample on Constitutional Law High Court