Division of Constitutional Law-Making Powers Flashcards
Division of law-making power
the way in which the constitution has allocated law-making powers to the commonwealth parliament and the state parliaments.
Exclusive powers
powers handed to commonwealth entirely. they can only be exercised by the commonwealth parliament.
Example of exclusive powers (with section)
an example of an exclusive power would be the control over defence, border security etc. section 51(xxxii)
Concurrent powers
shared some powers with commonwealth. specific law-making powers that are shared by the commonwealth parliament and the state parliaments.
Example of concurrent powers (with section)
an example of concurrent powers would be trade, taxation, marriage, postal services. s.51 (xxi)
Residual law-making powers
law making powers not listed in the constitution as they were not given to the commonwealth parliament. these powers are the domain of the states.
Example of residual powers (with section)
an example of a residual power is primary and secondary education, health and public transport. s. 106-108
Section 109 wording
when a law of the 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.
Significance of s. 109
this allows s. 109 allows disputes that arise from state and commonwealth laws to be resolved. because s 109 ensures whenever an inconsistency is found between state and commonwealth law the latter shall prevail.
Case that considered section 109 (name)
McBain vs. state of victoria
Brief facts of McBain’s case
mcbain was a doctor in a victoria specialising in IVF
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Outcome of McBain’s case
the section of victorian law that said a woman being denied IVF based on marital status was invalid after s 109 was applied.
Significance of McBain’s case
people could not be denied access to IVF treatment in victoria on the basis of their marital status.
