division of powers

AREA OF STUDY 2 The Constitution and the Protection of Rights Key knowledge: • The division of law-making power between state and Commonwealth parliaments under the Commonwealth Constitution, including specific (concurrent and exclusive) and residual powers, and the impact of Section 109 Key Skills: • explain the role f the Commonwealth Constitution with respect to law-making powers and the protection of rights • identify the types of law-making powers

• • • • •

Reasons for Federation To regulate immigration Strengthen defence To control industrial disputes Tariffs-Uniform tax laws on importation of goods Uniform laws in key areas such as, banking, currency marriage and divorce-to allow for equal treatment of all Australians.

Becoming a Federation created • a Federal Parliament and a Federal Constitution • Provided a legal framework for the Commonwealth Parliament and a structure of the Commonwealth Parliament • Created the High Court and gave it the power to interpret the Constitution if the need arises

Prior to Federation who made the laws for each colony?

Each colony made its own laws. Tax transport

defence

schools

health

crime

coining money police Hospitals

immigrations

Australia became a Federation on the 1 January 1901, as a result of a law passed in Britain called: The Commonwealth of Australia Constitution Act 1900 (UK)

Division of Power At the time of Federation, 1/1/1901, the State Parliament gave up some of their lawmaking powers to the Commonwealth Parliament. ie They divided the law making powers between the two parliaments- state and commonwealth- and that why it’s called, ‘The Division of Power’.

They gave the Commonwealth Parliament the power to make laws in areas they thought needed to be consistent across the whole of Australia, such as in defence, immigration, coining of money…

State Parliament

Eg • Public transport • Hospitals

Federal Parliament Eg • Defence • Taxation • Marriage • Immigration

Residual and Specific Powers • The powers left with the states at the time of Federation were called Residual Powers. These powers are not mentioned in the Commonwealth Constitution. (residue = leftover) eg public transport • The Powers the states gave up to the Commonwealth Parliament were called Specific Powers (because they are specifically stated in the Commonwealth Constitution). The states gave up 39 Specific powers to the Commonwealth Parliament. Eg Defence

Exclusive and Concurrent Powers • The states didn’t want to relinquish (give up) all their powers to the Commonwealth Parliament. • Of these 39 specific powers, only some are exclusive to the Commonwealth Parliament ( ie Exclusive powers are powers where ONLY Commonwealth parliament may legislate). Eg Defence, immigration • The rest of the Specific powers are Concurrent (ie both State and Commonwealth parliament may legislate in these areas.) Eg taxation

Past exam question: Question 1 2011: Distinguish between exclusive and residual powers. 2 marks. Example of a good response: ‘Exclusive powers are a subset of specific powers and are established under section 51 and 52 of the Constitution. These powers are only exercisable by the Commonwealth Parliament; no other parliament has power in these areas. Residual powers, on the other hand, are not stated in the Constitution and unlike exclusive powers rest solely with the states’.

• The phrase ‘on the other hand’ in the answer is making a distinction between the two types of powers and shows that they are answering the question.

Other points of distinction that could have been included (if the marks were higher, for example) • some exclusive powers are protected by other sections of the Constitution, such as S 115 (coining money), but state powers are only recognised by section 107. • exclusive powers are usually those powers given to the Commonwealth that affect the entire nation, such as defence, currency and customs, whereas residual powers are often those that can affect states indifferent ways (traffic and roads, local government, crime, etc)

Cont. • Exclusive powers are specifically listen under the Constitution, for example some powers under S 51, whereas residual powers are those left with the states at he time of federation and not listed in the Constitution.

Specific Powers Specific Powers: include Concurrent and Exclusive Power

S= E + C S (specific) = E (exclusive)+ C (concurrent)

What happens if there is a conflict in concurrent powers? ie since both Commonwealth Parliament and State Parliament can legislate in this area then what happens if both Parliaments make laws that conflict? Toss a coin??

The impact of S 109 • With regards to Concurrent Powers eg taxation, if a State Law conflicts with a Commonwealth Law, in an area of concurrent power, then under S 109 of the Commonwealth Constitution, the Commonwealth Parliament’s law will prevail and the state law will become invalid to the extent of the inconsistency.

P 89 sets out the Chapters in the Constitution

The Division of law-making powers At federation the States agreed to give up some of their lawmaking powers to the new Commonwealth Parliament. • _______________ powers- are those powers left with the states at the time of federation and not listed in the Constitution Eg ______________________ • ______________ powers- are those law-making powers given to the Commonwealth Parliament at the time of Federation. Some of these powers are _______________ ( ONLY the Commonwealth Parliament can create laws in these areas) eg ____________________ and some are ______________ (both the Commonwealth Parliament and the state parliaments can create law in these areas) eg ________________________.

The Division of law-making powers At federation the States agreed to give up some of their lawmaking powers to the new Commonwealth Parliament. • __Residual________ powers- are those powers left with the states at the time of federation and not listed in the Constitution Eg __ public transport _________ • __Specific_________ powers- are those law-making powers given to the Commonwealth Parliament at the time of Federation. Some of these powers are __Exclusive_________ ( ONLY the Commonwealth Parliament can create laws in these areas) eg _Defence _ and some are __Concurrent_____, that means ,both the Commonwealth Parliament and the state parliaments can create law in these areas) eg ___Tax__.

S 51 of the Constitution lists the Specific Powers of the Commonwealth Parliaments p 92-93 text

Sections of the constitution I must know and explain their relevance: •

S 51- lists the specific powers (S=E+C) of Commonwealth Parliament

•

S 109- states that in concurrent powers where there is a conflict between a state and Commonwealth Law, then the Commonwealth Parliament’s law will prevail and the state law will become invalid to the extent of the inconsistency

•

S 128- sets out the referendum process, which is the only way to change the words in the constitution.