Division Of Law Making Powers Flashcards
Specific powers
The powers that are set out specifically in the Constitution. These powers were given to the Commonwealth Parliament under the Constitution. Most of these powers are set out in S51. The powers in this section are numbered and therefore are sometimes also referred to as enumerated powers. Specific powers are either exclusive powers or concurrent powers.
Exclusive powers and the types of exclusive powers
A power which can only be exercised by the Commonwealth Parliament. Some of the specific powers listed in S51 of the Constitution are exclusive to the Commonwealth Parliament. This means that only the Commonwealth Parliament can make laws in these areas; for example, defence.
Some specific powers are made exclusive by other sections of the Constitution. For example, S51(xii) gives power to the Commonwealth Parliament to make laws relating to coining money and S115 states that a state shall not coin money, thereby making this an exclusive power of the Commonwealth.
Other specific powers are exclusive by their nature. For example, S51(xix) gives the power to the Commonwealth to make laws relating to naturalisation (becoming an Australian citizen).
Concurrent Powers
Law-making powers over which both the Commonwealth Parliament and the state parliaments share jurisdiction. Many of the specific powers given to the Commonwealth Parliament in S51 of the Constitution are concurrent powers. In fact, all those powers that are not made exclusive to the Commonwealth Parliament are concurrent powers. This includes Taxation and postal services.
Residual powers
Law-making powers left with the states at the time of federation and not listed in the Constitution. Areas of law-making such as criminal law, education and public transport are not mentioned in the Constitution and are therefore areas of residual power. The states retained the right to make laws in these areas (residual powers). The Commonwealth Parliament has no right to make laws in areas of residual power, although some inroads have been made into these areas by the Commonwealth Parliament, through High Court interpretations, tied grants and changes to the Constitution.
S.109 of the constitution
s.109 (entitled ‘Inconsistency of laws’) of the Commonwealth Constitution states that ‘when a law of a 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’
Impact Of s.109, what it means, when it isn’t invoked and when it dan still be applicable
When a State law and Commonwealth law conflict Commonwealth law will invalidate the part of the State law that contradicts the Commonwealth law. It does not mean that where a conflict exists between Commonwealth law and State law that Commonwealth law abolishes the state law completely. It will not be invoked where both state and Commonwealth laws can exist simultaneously (i.e it is not impossible to obey both laws). It is also not invoked simply because the state lacks power to pass a particular law. s.109 can be applicable where, despite procedural validity a state law ceases to have operative force because it must yield to a Commonwealth law.
A Victorian law has recently been enacted that prohibits owners from walking their pet tortoises without a leash between the hours of 3am – 5am. However, a pre-existing Commonwealth law states that tortoises may be walked without a leash anytime after 9pm but before 12am. To what extent would s.109 be applicable in this case? Justify your answer.
s.109 could not be invoked in this case because both laws can exist simultaneously without coming into conflict with each other. s.109 states that when a state and Commonwealth law conflict the Commonwealth law will prevail to the extent of the inconsistency. In this case no inconsistency exists because the Victorian law (prohibiting tortoises to be walked without a leash between 3am – 5am) can operate without infringing upon the restrictions set out by the Commonwealth law (requiring tortoise owners to not use a leash between 9pm – 12am).
The Victorian law prohibits owners from walking their pet tortoises without a leash between the hours of 9am – 5pm on weekdays. The Commonwealth law, on the other hand, states that tortoise owners may not use a leash only between 10am - 12pm, 7 days a week. Could s.109 be invoked in this case? If so, ‘how much’?
s.109 could be invoked in this case As the Victorian law requires a leash between the hours of 9am – 5pm from weekdays it is only inconsistent to the extent that it overlaps (and therefore in inconsistent with the Cth law). This inconsistency is therefore the 2 hour period (between 10am-12pm) during weekdays. Thus, the Victorian law will not be abolished in its entirety. It is likely that the law would stand but would be amended to include the exception of 10am – 12pm from Monday - Friday.
District 13 (a state) wishes to raise an army against the Capitol (the Commonwealth). Assuming that the Commonwealth Constitution applied to the nation of Panem, identify whether raising an army is beyond the power of District 13. In your answer, distinguish between exclusive and residual legislative power.
District 13 could not raise an army as a state as, pursuant to s. 114 of the Commonwealth Constitution, raising an army or military power is an exclusive power. Therefore doing so would exceed state power as only the Capitol (Commonwealth) has power to exercise exclusive power. Residual power, on the other hand, can only be exercised by the States.
If District 13 (a state) wanted to legislate with respect to marriage (a concurrent power) could they make law however they saw fit?
The law making power of District 13 would be unrestricted in so far as any legislation that was passed within their concurrent power did not conflict with any existing laws passed by the Capitol (as s.109 could be invoked ‘to the extent’ that any state law is inconsistent).
Section 52
Section 52 contains a small list of powers that are also exclusive powers of the Commonwealth Parliament.
Tied grants
Tied grants are grants of money by the Commonwealth to the states that specify what the states must do with the funds.
S.109 example
Marriage is an area of concurrent power. The Marriage Act 1958 (Vic.) provided laws for a valid marriage. When the Commonwealth Parliament passed the Marriage Act 1961 (Cth), it rendered the pre-existing Victorian legislation largely redundant because it covered the same areas and the Commonwealth law prevails. Since this time the inconsistent areas of the Victorian Act have been repealed.
Describe the division of law making powers
The law-making powers of the state parliaments and the Commonwealth Parliament are divided into residual and specific powers.
Obviously in an exam you would explain what these are
