Peter F Hughes ©Legal Studies Unit 3

CHAPTER 3

THE CONSTITUTION

Part A

The Constitution

Outcome 2 represents an in depth look at the Constitution.

Today the Commonwealth Constitution still defines federal law making powers.

The Commonwealth Constitution can be changed today.

We analyse its effectiveness in modern issues of human rights.

The Constitution

The Commonwealth of Australia Constitution Act 1990 (UK)

was enacted on January 1 1901

Federation brought our separate colonies together as the problems in Europe caused many Australians concern.

Australia’s Federation

Ensured the defence of Australia would be done by a combined force.

Regulated the people entering Australia with Immigration laws.

Created a national industrial dispute mechanism.

Regulated imports and protected local producers with Tarriffs.

The Commonwealth Constitution

The role in Australia To determine the powers and duties of

governments. Provides the legal framework for our

Commonwealth Parliament. Provides for elections in the House of

Reps and the Senate Grants the High Court of Aust. the right

to interpret the Constitution.

The division Of law making powers

Created our federationThe states and territories divided their

powers with the Commonwealth Parliament.

States and Territories kept some law making powers for themselves

The division Of law making powers

Residual PowersThe law making powers left with the states

at the time of Federation

Specific PowersCommonwealth law making powers at the

time of Federation.

The division Of law making powers

Specific PowersExclusive – Commonwealth creates laws

in these areas.

Concurrent – Both the Commonwealth Parliament and the State Parliaments can create laws in these areas.

State Power

Residual PowerLeft with the states at Federation and not

listed in the ConstitutionKept many of their laws in operation.Kept many of their portfolios intact such

as

Education, Health, Public Transport, Criminal Law (Gaols, police etc)

State Power

Commonwealth can not make laws in areas of Residual Power.

Some states have given the Commonwealth Parliament power in relation to workplace relations.

Photo: Arthur Beetson , Queensland Captain, leads out his team in the first ever State of Origin rugby league match.

Tied Grants

Some grants are given to the states and have a specified usage from the Commonwealth.

These have nothing to do with residual powers.

Commonwealth is seeking to ensure funds are applied in areas where their policies dictate.

The division Of law making powers

Specific Powers

Can be exclusive or concurrent.

The Constitution grants them to the Commonwealth Parliament.

‘To make laws for the peace, order and good government of the Commonwealth.’

Specific powers in the Constitution

Set out in S51 of the Commonwealth of Australia Constitution Act 1900

In the act they are numbered 1-40 and are called enumerated powers.

(legislative powers of parliament)

Refer page 92 of the text.

Specific powers in the Constitution

Exclusive Powers

Can only be exercised by the Commonwealth Parliament.

Example: s51(xii) Gives the parliament exclusive power to make laws regarding currency, coinage and legal tender.

S.115 - Prohibits states from doing this, thus making it exclusive

Specific powers in the Constitution

Concurrent PowersConcurrent powers are law-making powers

that both the states and the commonwealth share, meaning that they both have the power to pass laws in that area of law.

Examples include:

• S.51(xvii) - bankruptcy

• S.51(xxii) - marriage

• S.51(ii) - taxation

Specific powers in the Constitution

Concurrent Powerssection 109 states that if there is any

inconsistency between the laws made by the commonwealth parliament and the laws made by the state parliaments the commonwealth law shall prevail, and the inconsistent part of the state law shall be invalid.

Restrictions of the Constitution on law making powersRestrictions are mainly concerned with

protecting the rights of the individuals or of the states.

• Examples include:

• S.116 - The commonwealth cannot make any law for establishing, imposing or prohibiting any religion

• S.117 - The commonwealth cannot give preference to people based on their state of residence