The constitutional division of powers AOS 2: On completion of this unit the student should be able to explain the role of the Commonwealth Constitution in defining law making powers within a federal structure...

Federation In the 19th Century, each of our current states was a separate colony, making laws on its own behalf. In the late 1800s there was real fear of invasion and realisation that there needed to be a central body to take charge of the defence in Australia.

In 1891 a convention was held of all the Australian colonies and they framed and approved a federal constitution. But the colonies were reluctant to give up their law making powers to a central body, and so most of the powers were kept by the colonies. Only law-making powers relevant to Australia as a whole, such as defence and the coining of money, were given to the central body. With federation, the separate colonies became states, with their own parliaments, and the central body, the Commonwealth Parliament was formed.

The Constitution The Constitution is the formal document by which this process of federation was achieved. Its full title is the Commonwealth of Australia Constitution Act 1900 (UK). It was an act of British Parliament.

The constitution The Australian Constitution’s main role is to: Facilitate the division of law-making powers (what Commonwealth Parliament can and cannot do re: law-making) Provide a legal and political framework for the creation of the Commonwealth Parliament (including the House of Representatives and the Senate) Provide for direct election of MPs by the people of the Commonwealth of Australia Give the High Courts power to interpret the Constitution if the need arises It does not contain a bill of rights. However, it does provide some protection for a limited number of rights, which we will look at next term.

The constitutional division of powers Refers to the way law-making powers are divided between the Commonwealth Parliament (also known as the federal parliament) and the State Parliaments

The Constitutional division of powers The division of powers is DIFFERENT to the separation of powers ******* DO NOT CONFUSE THE TWO********

Law making powers Powers not listed in the Constitution Powers listed in the Constitution Powers not listed in the Constitution Specific Powers Powers given to the Commonwealth Parliament under s.51 of the Constitution to make laws for the ‘peace, order and good government’ of Australia. Examples include: trade, marriage, census etc. *These laws apply to the whole of Australia Residual Powers Powers left with the states at Federation- not listed in s.51. Examples include criminal law, education, public transport, etc. These laws apply to that state, and so the laws may differ from state to state. Exclusive Powers Only the Commonwealth Parliament can pass laws in these areas. They are made exclusive by virtue of other sections of the Constitution Examples include: Defence military forces (s. 114) Coining money (s.115) Customs and excise (s. 90) Concurrent Powers Both the Commonwealth and State Parliaments can pass laws in these areas (shared) BUT if there is an inconsistency, then the Commonwealth law prevails (s.109) Examples include: Bankruptcy Taxation marriage These are both Specific powers!

There are 4 types of law-making powers Specific Powers: These are listed in s.51 of the Constitution and were the powers given to the Commonwealth Parliament to make laws for the ‘peace, order and good government’ of Australia. Includes: trade and commerce, taxation, external affairs, immigration, defence. These powers can be exclusive or concurrent

Exclusive Powers Only the Commonwealth parliament can exercise these law-making powers. For example s.51 (xii) gives Commonwealth Parliament power to make laws regarding currency, coinage and legal tender; this is made excusive because s.115 declares that a ‘state shall not coin money.’ Examples include coining money (s.115), defence and military forces (s.114) and customs and excise

Residual Powers These powers are those that were left with the states at the time of federation and therefore are not listed in the Constitution (residual- left over) Includes criminal law, education, public transport and health Some were deliberately left to the states- like criminal law- others have developed as residual, since the area of law did not exist when the constitution was passed (for example IVF laws) s.106-108 protect the laws and the Constitutions of the states.

Residual Powers An example: After the Port Arthur massacre in April 1996, the then Prime Minister, John Howard, wanted to have uniform gun laws throughout Australia. As laws governing gun control are residual powers, the Commonwealth was unable to pass legislation to do this. Howard, therefore, had to persuade each state parliament to pass the same gun laws.

Concurrent powers These are areas of law-making power where both Commonwealth and State Parliaments have authority to pass laws- so they are shared powers. They are specific powers that have been given to the Commonwealth Parliament but they have not been made exclusive (i.e the power was not taken away from the states) Many of the specific powers in s.51 are concurrent

Section 109 This section is listed in the Study Design so you MUST know it. Under this section, any conflict between the Commonwealth and state legislation dealing with concurrent matters will result in the Commonwealth legislation overriding the state legislation to the extent necessary to remedy the inconsistency. Examples include taxation (s.51(ii)) and marriage (s.51(xxi)). So while both Commonwealth Parliament and Victorian Parliament have the right to make laws on marriage, the Commonwealth law prevails over state law and can render it invalid.

So in summary... Certain powers are specifically listed (mainly in s.51 and s.52)-SPECIFIC Other sections make some of those specific powers only exercisable by the Commonwealth – EXCLUSIVE Those which are not made exclusive may be shared with the states (but consider the impact of section 109)- CONCURRENT There are also many law-making powers left out of the Constitution and left to the states - RESIDUAL

Study this table Specific Powers Exclusive Powers Concurrent Powers Specifically listed in the Constitution Trade, marriage, census s.51 and s.52 Exclusive Powers Powers that only the Commonwealth can exercise Coining money s.115 Raising an army s.114 Customs and excise s.90 Concurrent Powers Powers that both the states and the Commonwealth share REMEMBER S.109 Taxation s.51(ii) Bankruptcy s.51(xvii) Marriage s.51(xxi) Residual Powers not stated in the constitution and have been left up to the states to legislate on Education Criminal law Health. S.106-108 protects the laws and constitutions of the states

To what extent are the law-making powers of the Commonwealth and State parliaments limited? In your answer include specific examples of specific prohibitions on the law-making powers of both the Commonwealth and State parliaments (6 marks)

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

Changing the division of law-making powers There are three main ways the division of law-making powers between the Commonwealth and state parliaments can be changed: Through amending the wording of the Constitution by holding a referendum 2) Through a decision of the High Court in a case that involves some interpretation of the Commonwealth Constitution 3) Through the states referring or giving some of their law-making powers to the Commonwealth Parliament.