Essay on S. 51 (Xxi)

Submitted By LilMissRugrat1
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Good Morning, class and Mrs Braithwaite, today I am going to be talking to you about a section of the constitution, specifically section 51 (xxi). First I will give you a bit of surrounding knowledge about where this section is in the constitution, and what it does. | Section 51 is in the first of 8 chapters, which sets up the legislative part of the government, the parliament. And is in part 5 of this chapter, which lays out the powers of the parliament. This part of the constitution includes everything from “51. Legislative powers of the Parliament, 52. Exclusive powers of the Parliament, 53. Powers of the Houses in respect of legislation, 54. Appropriation Bills, 55. Tax Bill, 56. Recommendation of money votes, 57. Disagreement between the Houses, 58. Royal assent to Bills, Recommendations by Governor-General, 59. Disallowance by the Queen, 60. Signification of Queen's pleasure on Bills Reserved.” | Section 51 is the legislative powers of the parliament, these powers are called ‘specific powers’, and contain concurrent powers, which means that both the commonwealth and states can legislate, though if a state law contradicts the federal law, then it becomes void under section 109 of the constitution. Section 51 includes 39 ‘heads of power’ which the commonwealth can make laws about. | My Oral is based on Section 51 subsection 21 (xxi) which states “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xx) (xxi) Marriage (xxii)” Note that here, no definition or details are given as to what marriage is or means, I will discuss this later in my oral. | The Following are two case studies, one displaying an unsuccessful argument based around section 51 (xxi) and the powers of the commonwealth to make laws in regards to this, and where departments have attempted to rely on a section of the constitution to build a case, where it is decided that it does not actually apply. The other is a case challenging elements (sections 89-94) of the 1961 marriage act. This act was passed to give specific laws in regards to marriage, as the constitution simply states that the commonwealth is permitted to make laws, but does not provide any details. | My first case is from 1980, and the two parties are not usual in terms of a constitutional case in the high courts. For this case that is: The queen vs LambertAbout: In QLD under the “children’s services act 1965-1979 (Q)” a young girl was removed from her parents and admitted to the care and protection of the director of the QLD department of children’s services. Later, an order of the family court under section 10 of the family law act, which looks at resolving family disputes, awarded custody back to her father. | Argument was That sect 10 of the family law court act was beyond the scope and invalid to hear and determine and application by the father (who is married) for the custody of child (of the marriage) when the child is in care of the director of QLD children’s services.The justices together That the family law court order (that awarded the father custody) took legal precedent over the state wardship law (which enabled the child to be removed from her father in the first place) | EXPLAIN: It may seem that this case does not have much of a link with my section of the constitution, and you know what, that is correct. Even the chief justice stated that the QLD dept children’s services had no grounds to argue that section 51 xxi had to do with this case. The only reason that it was bought in may have been as a last stint to attempt to try to keep the child out of its parents’ custody. And as the parents were married, this is how it related. So in actual fact this case is an example of where my section has been used in the courts as the basis for an argument unsuccessfully. | I will now move on to my second case. This is a case from 1962 and is between the Victorian Attorney general
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