1. The Commonwealth Constitution of Australia

2. Learning Objectives Success Criteria
The role of the Commonwealth Constitution
Success Criteria
Explain the role of the Commonwealth Constitution  with  respect  to law-making powers and the protection of rights
identify the types of law-making powers
Specific powers
Exclusive powers
Concurrent powers
Residual powers
Explain the impact of S109
Describe restrictions imposed by the Commonwealth Constitution on the law-making powers of state and Commonwealth parliaments.

3. The Commonwealth Constitution
Australia is a constitutional monarchy. Our head of state is the queen, but the political system is based on the Constitution.
The role of the constitution is to:
Facilitate the division of law making powers
Provide a legal framework for the creation and structure of the commonwealth parliament
Provide for election of members of the House of Representatives and the Senate by the people of Australia
Give the High Court the power to interpret the constitution

4. The Commonwealth Constitution

5. The Commonwealth Constitution
The Constitution describes how the Federal Parliament works, what it can make laws about and how it shares its power with the states. It also describes the roles of the government and the high court.
Sometimes there are disagreements over the issues relating to the Constitution. The High Court of Australia is responsible for providing the official interpretation of the Constitution and deciding on these disagreements.
The Constitution is divided into eight chapters. Each of these chapters is divided into sections which describe the different powers in detail.
Changing the Constitution requires a nation-wide referendum. A majority of Australian voters, and a majority of voters in at least four states, must agree to the changes. The Constitution has had a total of eight changes since 1901.
More than 100 years on, the Constitution continues to guide how Australia is governed and how laws are made. It is the framework for our democracy.

6. Key features of the Constitution
Chapter 1 describes the composition and powers of our federal Parliament, which consists of the Queen and a bicameral legislature with:
Single-member representation for each electorate for the House of Representatives (the lower house)
Multi-member representation for each state for the Senate (the upper house).
Chapter 2 describes the power of the most formal elements of Executive Government, including the Queen, Governor-General and the Federal Executive Council.
Chapter 3 provides for the creation of federal courts, including the High Court of Australia, which is the final court of appeal. The High Court can interpret the law and settle disputes about the Constitution.
Chapter 4 deals with financial and trade matters.
Chapters 5 and 6 outline the federal relationship between the Commonwealth, and the states and territories.
Importantly chapter 5 states that if federal Parliament and a state parliament both pass laws on the same subject and these laws conflict, then the federal law overrides the state law. Section 122 in Chapter 6 gives the federal Parliament the power to override a territory law at any time. It also allows the Commonwealth to legislate for the representation of the territories in federal Parliament.
Chapter 7 describes where the capital of Australia should be and the power of the Governor-General to appoint deputies.
Chapter 8 describes how the wording of the Constitution can be changed by referendum.

8. The Commonwealth Constitution

9. Division of law-making powers

10. Division of Powers
All powers of the commonwealth parliament are listed in the Constitution. These powers are known as enumerated or specific powers. Most of the enumerated powers are listed under S51 and S52.
Specific powers
Given to the Commonwealth Parliament by the Constitution
Divided into exclusive powers and concurrent powers

11. Division of law-making powers
Exclusive powers
A law-making power that is not shared with any other law-making authority.
Made exclusive by other sections of the Constitution
Eg coining money (S51(xii) and S115)
S51 (iii)
customs and excise
(vi)
naval and military forces
(xii)
coining money
(xix)
naturalisation and aliens
Areas of Exclusive Powers
Pg 109

12. Division of Law-Making Powers cont …
Concurrent powers
Given to the Commonwealth Parliament by s51 of the Constitution and shared by the Commonwealth and the states
Examples: taxation, marriage, bankruptcy, trade
Residual powers
Not in the Constitution and left to the states
Examples: roads, crime, education, health

13. Division of law-making powers: s109
Section 109 of the Constitution deals with inconsistencies between state and Commonwealth laws, arising in the area of concurrent powers
Where the laws are inconsistent, under s109 the Commonwealth law will prevail to the extent of the inconsistency
That means the part of the state law that is inconsistent with the Commonwealth law will be void (invalid)
Example: McBain v. State of Victoria & Ors – provision of IVF

14. Borrowing money on public credit of the Commonwealth
Specific
Exclusive
Stated as exclusive
Section 52
Exclusive by nature
Borrowing money on public credit of the Commonwealth
Exclusive because states are prohibited
S51 Commonwealth can make laws about currency
S115 States cannot coin money
Concurrent
S109 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.
Residual
Not in the Constitution and left to the states

15. Specific Restrictions
S99, S92 Commonwealth Parliament cannot discriminate against a state
S116 – freedom of religion
S227 equal rights of citizens of all states
S80 right to trial by jury for Commonwealth indictable offences
S51(xxxi) individual’s property can be acquired by the government only on just terms.

16. Restrictions on State Parliaments
S114 – a state shall not raise an army or navy
S115 – a state shall not coin money
S90 – the imposition of duties of customs and excise is exclusive to the Commonwealth

17. Learning Objectives Success Criteria
The role of the Commonwealth Constitution
Success Criteria
Explain the role of the Commonwealth Constitution  with  respect  to law-making powers and the protection of rights
identify the types of law-making powers
Specific powers
Exclusive powers
Concurrent powers
Residual powers
Explain the impact of S109
Describe restrictions imposed by the Commonwealth Constitution on the law-making powers of state and Commonwealth parliaments.

18. Questions LEARNING ACTIVITY 3.1 LEARNING ACTIVITY 3.2
Qs 1-7 (verbally)
LEARNING ACTIVITY 3.2
Qs 1-5 & 7 & 8