Federation and the Constitution – The Division of Powers

Key knowledge

Step back in time… http://museumvictoria.com.au/reb/history/federation/ https://www.youtube.com/watch?v=tjlj3KKKAlA

Discuss… Imagine a society in which we did not have a Commonwealth parliament. For example, what might happen if the states had their own armies? What might happen if the states could produce their own currency? Why is freedom of religion valued in Australia? What would happen if a Commonwealth Government tried to ban religious practice? At the moment, the states are allowed to make laws regarding the age at which young people can get their licence. What problems does this create? Is the age at which a young person in Victoria can get their probationary licence the same as for New South Wales and Queensland? Is this fair?

Australia is a “Federation” which means that we have a political union of all our States (originally colonies) with a central government in control of its own internal affairs The Constitution was passed as a British Law in 1900, coming into effect in January 1 1901 The Commonwealth of Australia Act 1900 (UK)

Why a federation? Economical development National security

Role of Constitution Sets out the principles of the Australian parliamentary system, sets up the role of the High Court, establishes governor general as head of state and sets out law-making powers of the commonwealth and stats

Division of Powers With the creation of the Constitution, it was realised that to function effectively under a federal system, the exact powers of the parliaments would have to be made clear They tried to limit the powers of the Commonwealth Parliament to clearly defined areas, which allowed the states greater authority as new areas emerged that required regulation

DIVISION OF POWERS: Definition The division of powers refers to the way law-making powers are divided between the Commonwealth Parliament and the State Parliaments.

Division of powers

Specific Powers

Specific Powers Are all powers given to the Commonwealth Parliament under the constitution at federation for the ‘peace, order and good government’ of Australia. They are specifically mentioned in the Constitution and enumerated. Specific powers can be either concurrent or exclusive. To enumerate means to mention separately or name one by one (to number…numerate from numeral) it is necessary when defining specific powers to use a term other than specific. Use “enumerated”. “specific powers are those that are enumerated within the constitution” Many of these listed in Section 51 of Constitution Eg – external affairs, quarantine There are 40 of these powers mentioned in this section

Examples of specific powers Section 51 (i) trade and commerce with other countries and among the states Section 51 (xii) Currency, coinage and legal tender Section 51 (ii) external affairs

Exclusive Powers

Exclusive Powers An exclusive Commonwealth Power is a law making power that can be only exercised by the Commonwealth Parliament and are law-making powers that are not shared with any other law-making authority. Exclusive powers can be exclusive by nature or exclusive because the states are prohibited. All powers stated in section 52 are exclusive powers Section 52 states that the Commonwealth Parliament has exclusive power to make laws about The ACT Matters relating to control of the public service Other matters declared by the Constitution to be within the exclusive power of the Commonwealth Parliament

Exclusive Powers Many of the exclusive powers of the Commonwealth Parliament are also stated in section 51 of the Constitution However, not all specific powers in section 51 are exclusive powers (remember, specific powers can be EITHER exclusive or concurrent) They can be exclusive by nature – they refer to things that only a Commonwealth Parliament can do eg – “Borrowing money on the public credit of the Commonwealth” section 51 They can be exclusive because States are prohibited – some powers listed in section 51 can be used only by the Commonwealth Parliament because state parliaments are prohibited in other sections of the Constitution fro making laws about these issues Examples: section 114 “a state shall not raise or maintain any naval or military force” Section 115 “states shall not coin money” Both exclusive as states are prohibited

Concurrent powers

Concurrent Powers Are areas of law-making power where both the Commonwealth and State Parliaments have authority to pass laws, as they are shared powers. Concurrent powers are specific powers that have been given to the Commonwealth Parliament, but have not been made exclusive Most of these are found in section 51 In other words, the powers were never taken away from the states Therefore, these law-making powers can be exercised by both State AND Commonwealth.

Examples of concurrent powers All found in section 51: Marriage Taxation Bankruptcy

Section 109 If both States AND the Commonwealth Parliament can make laws in particular areas, what happens if they BOTH back a law in the same area (such as marriage) and they contradict one another? ACT legalises same sex marriage http://www.news.com.au/national/act-legalises-samesex-marriage/news-story/50dfdc9b53ea81e7f96a8442c449c1b3

Significance of section 109 Ifthere is an inconsistency in the laws made by the Commonwealth Parliament and a state parliament in one of these areas of shared power, then section 109 of the constitution states that “when a law of State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid” Condensed: due to section 109 when a concurrent state law is inconsistent with a Commonwealth law, the latter shall prevail to the extent of the inconsistency. In other words, Commonwealth parliament will always reign over the states in areas of concurrent law making power.

Residual Powers

Residual powers These are areas of law-making power that are not listed in the constitution, and hence they remain with the states, as they have not been given to the Commonwealth parliaments. Sections 106-108 of the Constitution protect the laws and Constitutions of the States Some of these areas were deliberately left to the states to legislate on eg Criminal law Some have developed as residual powers as the area of law did not exist at the time the Constitution was passed eg: IVF laws

Examples of Residual Powers Criminal law Primary and Secondary school education Public transport and health

2.2 questions 3, 5, 6, 7 Power Example/explanation Specific exclusive Concurrent Residual

Restrictions on lawmaking powers

Acquisition of property on just terms Daryl Kerrigan and his counsel are presenting argument to the court that no monetary value can be placed on the value of a family home. Is this is, in fact, true. Is there a difference between the acquisition of a private home and a vacant block of land? What does just terms actually mean? https://www.youtube.com/watch?v=ITUSZ6LRHrk

Restrictions on law-making powers The constitution places some restrictions on the jurisdiction of both Commonwealth and State Parliaments. Restrictions on law-making powers are necessary to reduce the potential for conflict between the Commonwealth and states, and to ensure that the Commonwealth has exclusive control over areas of national security and financial management. Many of these restrictions are designed to protect the rights of individuals or the rights of the states.

Restrictions on State Powers Restrictions on Commonwealth Powers States cannot legislate in areas of exclusive power, as they belong solely to the Commonwealth Section 114 A state shall not raise or maintain any naval or military force Section 115 A state shall not coin money Section 90 The imposition of duties of customs and excise is exclusive to the Commonwealth (no taxes on imported goods) Section 116 The Commonwealth shall not make any law for establishing, imposing or prohibiting religion Section 117 No discrimination against people based on their state of residence Section 99 The Commonwealth shall not give preference to one state over another state Section 92 Trade between the states shall be free-no state can charge trade duties to another state Section 92 The Commonwealth cannot restrict free trade between the states Section 109 In areas of concurrent power, any state law that is inconsistent with a Commonwealth law shall be declared invalid Section 51 Any acquisition of property by the Commonwealth must be done on just terms

Explain two restrictions imposed on the law-making powers of the Victorian Parliament stated in the Constitution (2 marks)

One restriction imposed upon the lawmaking ability of the Commonwealth Parliament is found in section 116 where the Commonwealth is prohibited from making a law that establishes, imposes or prohibits a religion. This is restrictive as it disallows the Commonwealth from stipulating a religion upon the country. Another restriction imposed is found in section 99 where the Commonwealth cannot give preference to one state over another. This prohibits discrimination between the states.

Ensure you explain how it is restrictive, not just identify the restriction 1 mark per restriction explained

Sample response One restriction imposed upon the Victorian State Parliament from the Constitution is found in section 114. this states that a state cannot raise or maintain naval or military force. This restricts the states from making law in this area and essentially gives the power exclusively to the Commonwealth. Another restriction imposed upon the Victorian Parliament is found in section 109. This is restrictive as it states that if the Victorian Parliament and the Commonwealth Parliament both make a law in an area of Concurrent power and there is an inconsistency, the Victorian law would be invalid to the extent of the inconsistency, restricting its ability to make law in that area. For example, in the law making area of Marriage.

Explain how it is possible that different states can make different laws in the same area (3 marks)

2.2 2.) Define, and give one example of, the following terms: exclusive powers concurrent powers residual powers. 3.) Explain the purpose of s. 109 of the Constitution. 4.) How do state governments know from the Constitution what their powers are?
 5.) In terms of the creation of law by the states, what problems can arise in their exercise of residual powers? 6.) Why was it appropriate for law-making regarding defence, customs, currency and external affairs to be given to the Commonwealth? 7.) Explain how s. 109 of the Constitution was applied in McBain v. State of Victoria (2000) FCA 1009.

Thumbs up Middle of the road Thumbs down

Explain why each of the state parliaments in Australia is able to make different laws about the same area of law. 3 marks State parliaments can make different laws about the same area of law due to concurrent and residual powers. Residual powers are those not listed in the consitutiton and hence remain with the states, and are protected in sections 106-107 of the constitution. Therefore, areas such as criminal law may differ from state to state. Similarly, concurrent powers are shared between the state and commonwealth and hence may also differ from state to state if a state has legislated in this area. Therefore, areas such as marriage may differ from state to state, unless a state law is inconsistent with a commonwealth law, in which case section 109 states that the commonwealth shall prevail.