the division of law-making powers Flashcards
explain how the powers were assigned to either states or the commonwealth
- Before Federation, Australia consisted of six colonies, each creating its own laws for its residents.
- To achieve Federation, the colonies had to relinquish some of their powers to the new Commonwealth Parliament.
- Upon becoming states, they retained some powers, shared others with the Commonwealth Parliament, and completely ceded some powers.
explain the division of law-making powers
- Law-making powers are the authority given to parliament to make laws in certain areas.
- Parliament, as the supreme law-making body in Australia, has the ultimate authority to make and change laws within its powers.
- Significant areas for law-making in Australia include roads, education, tax, currency, marriage, trade, and crime.
- When the Commonwealth Parliament was established, the Australian Constitution specified which powers were allocated to it and which were left to the states.
- The colonies agreed on the areas for Commonwealth law-making and the areas where state parliaments would retain their power to make laws.
In particular, the Australian Constitution divides the law-making powers into:
- residual powers
- exclusive powers
- concurrent powers
define residual powers
powers that were not given to the Commonwealth Parliament under the Australian Constitution and which therefore remain solely with the states (as opposed to concurrent powers and exclusive powers)
– law-making powers that were left with the states. The Commonwealth Parliament generally has no authority to make laws in these areas
define exclusive powers
powers in the Australian Constitution that only the
Commonwealth Parliament can exercise (as opposed to residual powers and concurrent powers)
– law-making powers that are held only by the Commonwealth Parliament, and only that parliament can create laws in these areas (the states cannot create law in those areas)
define concurrent powers
powers in the Australian Constitution that may be exercised by both the Commonwealth and the states (as opposed to residual powers and exclusive powers) – law-making powers that are shared by the Commonwealth and the state parliaments.
explain residual powers
- Residual powers are law-making powers left with the states at the time of Federation.
- These powers are not listed in the Australian Constitution.
- Before Federation, the states, as separate colonies, had the power to make laws on all areas affecting their colony.
- At Federation, some powers were given to the Commonwealth Parliament, but many were left with the states.
- Specific sections of the Constitution, including sections 106, 107, and 108, protect the continuing power of the states to create laws in areas not given to the Commonwealth.
- Section 107 is a key section that preserves state power.
The Australian Constitution
- Section 106 Saving of Constitutions
The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State
The Australian Constitution
- Section 107 Saving of Power of State Parliaments
Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the
establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.
The Australian Constitution
- Section 108 Saving of State laws
Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the
Colony had until the Colony became a State.
examples of residual powers
- Areas of law-making such as criminal law, medical procedures (including in vitro fertilisation), road laws, education, and public transport are not mentioned in the Constitution.
- These areas remain as residual powers that belong to the states.
- As a result, state laws may differ in these areas.
- For example, crime is an area of law-making held by the states; thus, each state has its own courts, laws establishing crimes and sanctions, and police force.
explain exclusive powers
- Most of the law-making powers of the Commonwealth Parliament are set out in section 51 of the Australian Constitution and are referred to as ‘heads of power’.
- These key powers of the Commonwealth are either exclusive powers or concurrent powers.
- An exclusive power is a power that can only be exercised by the Commonwealth Parliament.
- Only the Commonwealth Parliament can make laws in areas of exclusive power.
Examples of exclusive powers include:
- defence (the Australian Defence Force including the army, navy and air force)
- currency (printing and coining money)
- customs and border protection (immigration, controls on imports and exports, and border security).
what are examples in the constitution when exclusive powers are held by commonwealth
- Some powers held by the Commonwealth are made exclusive by specific sections of the Constitution.
- For example:
- Section 51(xii) gives the Commonwealth Parliament the power to make laws related to coining money.
- Section 115 provides that states shall not coin money, making this an exclusive power of the Commonwealth.
Law-making power given to the Commonwealth - Section 51(iii)
gives power to the Commonwealth Parliament
to make laws regarding customs and excise.
Section of the Constitution that makes the power exclusive - Section 90 states that this power is exclusive to the Commonwealth Parliament
