The ConstitutionSources of Contemporary Australian Law

The Australian Constitution is the document that sets out the structure and the role of the Federal Parliament.

It was created in 1900, when British Parliament passes the Commonwealth of Australia Constitution Act 1900 (UK), and came into being in 1901, at Federation.

Each Australian state also has its own Constitution.

What do we remember?

The power to make laws in Australia is divided between the Federal Government and the State Governments.

Our Coat of Arms reflects this sharing of power.

This is not a common system (only 14 countries worldwide have this system)

The Federal Parliamentary SystemThe idea of Federation was not popular with all colonial politicians. Why do you think this was the case? How do you think this reluctance to Federate is shown in our Constitution?

Division of Powers

•EXCLUSIVE•Commonwealth

•RESIDUAL•State

•CONCURRENT•Commonwealth•State

Division of

Legislative Power

The Constitution divides power to legislate between the Federal Government and the State Governments. There are also some areas of overlap.

Section 51 Section 51 of the Constitution lists 40 areas over

which the federal Parliament has legislative power. These include: trade and commerce postal and telecommunications services foreign policy taxation census and statistics weights and measures quarantine lighthouses, lightships, beacons and buoys fisheries currency copyright marriage immigration defence

Section 52 Section 52 of the Constitution stops state

parliaments from making laws in some areas, including defence and communication. This means the federal Parliament has exclusive power to make laws in these areas.

States are also banned from charging customs duties, which guarantees free trade within Australia. The creation of a single Australian market was a key reason for federation–before 1901 each colony taxed goods imported from the other colonies, which made trade difficult and was considered bad for their economies.

Exclusive Powers Held by the Commonwealth Government, only. Broadly speaking, they are in the areas of trade,

defence and foreign affairs, and also include customs They are listed in different “sections” of the

Constitution, for example: S90: give the commonwealth the power to impose

customs and excise duties S114: prohibits the states from raising naval or

military forces S115: prohibits the states from minting their own

coins

Concurrent Powers Concurrent powers are those powers that can be

exercised by both the states and the Commonwealth.

Some of these concurrent powers can be found in s51, including: Health care

Medicare – Federal Hospitals – State

Education Universities – Federal Schools – State What about the National Curriculum?!

If there is a contradiction between the states and the Federal Government, the federal laws prevail over the state laws (s 109).

Section 109 of the Constitution says:When a law of the state is inconsistent with the law of the commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

An inconsistency exists where a state law is in conflict with a federal law, making it impossible to obey both laws.

Residual Powers Before Federation, each colony had its own set

of powers, some of which were handed over to the Commonwealth (s51).

The remaining powers remained with the states (s108); they are called the residual powers and only the states can make laws based on these powers.

Examples of residual powers can be found in the areas of: law and order commerce and industry primary production housing transport public health and social welfare issues.

Separation of Powers

Parliament Executive Judiciary

• Makes and amends the law

• Made up of the Queen (represented by the GG), members of the House of representatives and the Senate.

• Powers are outlined in Chapter 1 of the Constitution (s51)

• Puts the law into action

• Formally known as the Federal Executive Council

• Made up of the Prime Minister and members of the Cabinet.

• Powers are outlined in Chapter 2 of the Constitution

• Makes judgements about law

• Made up of the High Court and other Federal Courts

• Established under s71 of the Constitution

Things to consider1. Explain why Separation of Powers is

important.2. The Australian Separation of Powers is

not actually complete. Where is the area of overlap, and what problems (if any) might this pose?

The Role of the High Court

The High Court is the highest court in the Australian judicial system.

It was established at Federation by s71 of the Constitution (but didn’t ‘sit’ for the first time until 1903)

The functions of the High Court are to: interpret and apply the law of Australia; decide cases of special federal

significance, including ‘constitutional challenges’ to the validity of laws; and

act the final court of appeal, hearing appeals from Federal, State and Territory courts.

Sometimes the High Court is asked to decide whether it is the Commonwealth Government or a state government which has the authority and responsibility to deal with a matter.

Other times, because the Constitution provides specific limits to what the Commonwealth Government is empowered to do, the High Court may be asked to decide whether a law made by the Commonwealth Government is within that power.

Evolving interpretations of the Constitution by the High Court have resulted in stronger law-making powers for the Commonwealth, without any changes to the words of the Constitution. Important court cases have included the Engineers Case (The Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129), the Tasmanian Dam Case (Commonwealth v Tasmania (1983) 158 CLR1) and Work Choices Case (New South Wales v Commonwealth (2006) 231 ALR 1).