The Division of Powers Flashcards
What is the division of Powers?
The division of powers is a concept that describes how the power to make laws is divided between the Commonwealth Government (also called the Federal Government) and the State and Territory governments around Australia
The Rule of Law & Division of Powers
The rule of law requires that the use of power is controlled by law. The division of powers is an important concept in understanding how power is controlled - the Commonwealth Government’s power to make law is limited by s51 of the Australian Constitution. State governments’ powers to make laws is limited by s109 of the Australian Constitution.
Section 109 of
the Australian Constitution
“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.”
Key Terms
- Bill of Rights
- Concurrent Powers
- Constitution
- Division of powers
- Exclusive powers
- Referendum
- Residual Powers
- Specific Powers
Federation 1.1
- A federation involves the notion of separate entities coming together to form one single body.
- In the 19th century Australia was made up of different British colonies. Each state was a separate colony, and each colony made laws on its own behalf.
- In 1891 a convention of the Australian colonies was held, and the framing of a federal Constitution was approved.
Federation 1.2
- The colonies were reluctant to give up all their powers to a central body. Most of the powers for the day-to-day running of the states were kept by the colonies, however law-making powers relevant to Australia such as defence and coining money were given to the central body.
- At the time of Federation, the separate colonies became states with their own parliaments and a central body, the Commonwealth Parliament, was formed.
- The constitution is a formal document. Its formal name is Commonwealth of Australia Constitution Act 1900 (UK)
Role of the Constitution
- A constitution is a set of rules setting out the nature, functions and limits of government.
- The role of the constitution is to determine the powers and duties of government.
- The Commonwealth of Australia Constitution Act 1900 (UK) (the Constitution) is the most important legal and political document affecting the lives of Australia.
Role of the Commonwealth Constitution
- Facilitate the division of law-making powers- Explains what laws the Commonwealth Parliament can make. States can make laws that are not specified by the Constitution.
- Provide a legal framework for the creation of the Commonwealth Parliament and outline the structure of the Commonwealth Parliament- Includes the composition of the Senate and HOR.
- Gives the High Court the power to interpret the Constitution.
Section 51 1.1
The Parliament shall, subject to the constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:
(i) Trade and commerce with other countries and among the states.
(ii) Taxation
(xxi) Marriage
(xxii) Divorce in relation to parental rights, custody, guardianship.
The Division of Power under the
Constitution
- The commonwealth of Australia Constitution Act 1900 (UK) came into force on the 1st of January 1901.
- The constitution divides the law making powers between the Commonwealth and State Parliaments. All powers of Commonwealth Parliament are listed in the Constitution. These powers are known as SPECIFIC POWERS, listed in s51 and s52 of the Constitution.
- Powers that are shared between the states and commonwealth parliament is concurrent powers.
- Powers that solely lie with the Commonwealth Parliament is exclusive powers.
- Powers left with the State are residual powers.
Exclusive Powers
- An exclusive power is a power which can only be exercised by the Commonwealth Parliament.
- An exclusive power is a law-making power that is not shared with any other lawmaking authority. These powers are not shared with the state parliaments
Section 51 1.2
- All of the powers stated in section 52 are exclusive powers.
- Section 52 states that the Commonwealth Parliament has the exclusive power to make laws about:
o Areas of Exclusive power are coining money, military and customs.
o S115 states that the states shall not coin money. Coining money is therefore a exclusive power of the Commonwealth.
o S51(vi) Gives power to the Commonwealth Parliament to make laws relating to military forces.
o S115 States cannot coin money or legal tender
o S114 States cannot raise armies or navies.
Concurrent Powers
- Concurrent powers are law-making powers which both the Commonwealth Parliament and the state Parliaments share jurisdiction (shared powers).
- Many of the specific powers given to the Commonwealth Parliament in s51 of the Constitution are concurrent powers.
o For Example: The power to make laws in relation to taxation is given to Commonwealth parliament, but state parliament can also levy taxes. Commonwealth tax includes the GST and State tax includes stamp duty and pay roll tax. S51(ii) - Both the Commonwealth parliament and State parliaments have the right to make laws on marriage, divorce, taxation and bankruptcy.
Residual Powers
- Residual powers are those law-making powers left with the states at the time of federation and are not listed in the constitution.
- The states have the power to make laws on areas that affect their area/state.
- The states retain the rights to make laws in these areas: law enforcement, education, public transport and health. Those areas are not listed in the Constitution and the Commonwealth Parliaments has no right to make laws in areas of residual power.
- The Constitution protects the power of the states. Each state has its own constitution outlining their law-making powers.
- S106 recognises the need for separate state constitutions.
