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Unit 1 The Australian legal system: Topic 3 Powers of the Commonwealth and State Parliaments to make laws

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Commonwealth of Australia Constitution Act 1900 (UK)
Commonwealth Parliament

 

Commonwealth of Australia Constitution Act 1900 (UK)

The Commonwealth of Australia Constitution Act 1900 (UK) created our Federation or Commonwealth. With Federation, the states gave some of their powers to the Commonwealth Government. The powers given by the states were specified in the Commonwealth Constitution. This gave the Commonwealth Government exclusive powers in some areas—for example, defence, customs and excise. In certain other areas it shared its powers with the states—for example, taxation and banking.

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Commonwealth Parliament

The British Parliament enacted the Commonwealth of Australia Constitution Act which established the Commonwealth of Australia from 1 January 1901.

The Commonwealth Constitution does the following:-

The Constitution sets out clearly the division of powers between the State and Federal Governments. It does this by stating the powers given to the Federal Government and then providing that the powers not mentioned remain with the states. Such powers are called residual powers.

The Constitution allows the states to make laws in areas over which the Commonwealth has power (provided that the state laws do not conflict with those of the Commonwealth). This occurs where the states and the Commonwealth have concurrent powers—that is, a shared power to legislate. An example of this is in the area of taxation, where state taxation takes the form of stamp duty and federal taxation takes the form of income tax.

If there is a conflict of interest between the states and the Federal Government, or if there is an inconsistency in these laws, the federal laws prevail over state law.

The Constitution outlines specific powers given to the Commonwealth by the states. These specific powers can be classified as either exclusive or concurrent.

Exclusive powers

Exclusive powers are those powers that can only be exercised by the Federal Parliament. These powers are listed in the Constitution and include:

Concurrent powers

Concurrent powers are those powers that can be exercised by both the states and the Commonwealth. Some of them can be found in s 51, including:

A power is said to be concurrent if both the State and Federal Governments can pass laws on the same matter.

If there is a conflict of interest between the states and the Federal Government, or there is an inconsistency in these laws, the federal laws prevail over the state laws (s 109). Section 109 states that:

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. At Federation some of these powers were handed over to the Commonwealth (s 51). The remaining powers stayed with the states (s 108); 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:

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