TOPIC 13
COMMONWEALTH PARLIAMENT
In this topic, we will examine the Commonwealth Parliament which is the National Parliament
and one of the parliaments affecting New South Wales. We will look at the structure of the
Commonwealth Parliament, the relationship between the Houses constituting the
Commonwealth Parliament and the legislative powers given to the Commonwealth
Parliament. A number of aspects of the Commonwealth Parliament’s legislative powers will
be considered including the Commonwealth Constitution’s division of law-making power
between the Commonwealth Parliament and the State Parliaments and the manner in which
conflicts between Commonwealth and State legislation are resolved. We will also look at
some of the ways (but not all of the ways) in which the Commonwealth Parliament has been
able to control States’ areas of power and at some of the so-called Constitutional guarantees
(rights and freedoms) contained in the Constitution.
Materials

Reilly et al, Chapters 4 and 5
Legislation

The Commonwealth Constitution
Cases (extracts only)
Western Australia v The Commonwealth (First Territorial Senators Case) (1975) 134 CLR 201
Queensland v The Commonwealth (Second Territorial Senators Case) (1977) 139 CLR 585
Amalgamated Society of Engineers v Adelaide Steamship Co (Engineers’ Case) (1920) 28
CLR 129
Viskauskas v Niland (1983) 153 CLR 280
University of Wollongong v Metwally (1984) 158 CLR 447
The Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1
13.1

Description
Constitution s 1
13.2
Structure
13.2.1 Queen and Governor-General
Constitution ss 1, 2, 58, 59, 74


Role and powers of the Queen in the Constitution
Discretionary powers of the Governor-General
13.2.2 Senate
Constitution ss 7, 13
Western Australia v The Commonwealth (First Territorial Senators Case) (1975) 134 CLR 201
Queensland v The Commonwealth (Second Territorial Senators Case) (1977) 139 CLR 585

Composition of the Senate and election of senators


Terms of office
Provision for senators to be elected from the Territories
13.2.3 House of Representatives
Constitution ss 24, 27, 28


13.3
Composition of the House of Representatives and election of members
The House to be as near as practicable twice the size in number as the
Senate
Legislative powers
13.3.1 Enumerated specific powers
Constitution ss 51-60

Law-making provisions in the Constitution
13.3.2 Exclusive and concurrent powers
Constitution ss 106-109
 Difference between exclusive and concurrent powers
 Ways in which the Constitution makes powers exclusive to the
Commonwealth Parliament
13.3.3 Inconsistency of Commonwealth and State legislation
Constitution s 109
Viskauskas v Niland (1983) 153 CLR 280
University of Wollongong v Metwally (1984) 158 CLR 447


The function of s 109
o Confirms the legislative supremacy of the Federal Parliament over the State
Parliaments with respect to concurrent powers
o Eliminates conflicts of law that may arise between State and Federal laws
operating in the same field
o Allows the Commonwealth to determine whether it might allow State laws to
operate in areas that might otherwise be the subject of Federal laws
o “laws” in s 109 refer to Acts of State or Federal Parliament
Tests of inconsistency applied by the High Court:
o “cover the field” – A Federal law evinces an express or implied intention to
provide an exhaustive statement over the relevant subject matter
o direct inconsistency:
 where it is impossible to simultaneously obey both State and
Federal law
 where one law takes away a right or privilege conferred by another
13.3.4 Commonwealth control of States’ areas of powers
Constitution ss 51(xxix), 96, 109
Amalgamated Society of Engineers v Adelaide Steamship Co (Engineers’ Case) (1920) 28
CLR 129
Victoria v The Commonwealth (Federal Roads Case) (1926) 38 CLR 399
A-G (Vic) (ex rel Black) v The Commonwealth (DOGS Case) (1981) 146 CLR 559
The Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1





New South Wales v Commonwealth [2006] HCA 52
Early narrow view of Commonwealth powers in relation to States powers
Effect of the Engineers’ Case
Use of s 96 & s 109 in widening the scope of Commonwealth power
External affairs power (s 51(xxix))
13.3.5 Constitutional amendments
Constitution s 128