The Constitution
Commonwealth of Australia
Constitution Act 1900 (UK) came
into force on the 1st of January
1901. A set of Rules or principles
guiding the way our nation is
governed. States have their own
separate constitutions.
CONSTITUTI
ON
Key Terms
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Bill of Rights
Concurrent Powers
Constitution
Division of powers
Exclusive powers
Referendum
Residual Powers
Specific Powers
Federation
• A federation involves the notion of separate entities coming together to
form one single body.
• In the 19th century Australia was made up of different British colonies.
Each state was a separate colony, and each colony made laws on its own
behalf.
• In 1891 a convention of the Australian colonies was held and the
framing of a federal Constitution was approved.
• The colonies were reluctant to give up all of their powers to a
central body. Most of the powers for the day-to-day running of the
states were kept by the colonies, however law-making powers relevant to
Australia as a whole such as defence and coining money were given to
the central body.
• At the time of Federation the separate colonies became states with
their own parliaments and a central body, the Commonwealth
Parliament, was formed.
• The constitution is a formal document. Its formal name is
Commonwealth of Australia Constitution Act 1900 (UK).
Role of the Constitution
• A constitution is a set of rules setting out the
nature, functions and limits of government.
• The role of the constitution is to determine the
powers and duties of government.
• The Commonwealth of Australia Constitution
Act 1900 (UK) (the Constitution) is the most
important legal and political document affecting
the lives of Australia.
Role of the Constitution
• Role of the Commonwealth Constitution;
1) Facilitate the division of law-making
powers- Explains what laws the Commonwealth
Parliament can make. States can make laws that are
not specified by the Constitution.
2) Provide a legal framework for the creation of
the Commonwealth Parliament and outline the
structure of the Commonwealth ParliamentIncludes the composition of the Senate and HOR.
3) Gives the High Court the power to interpret the
Constitution.
Specific Powers
• The Constitution gave the Commonwealth Parliament
specific powers to ‘make laws for the peace, order and
good government of the Commonwealth’ in relation to
ANY of the specific powers listed in the constitution.
• The powers that are set out specifically in the document
are called SPECIFIC POWERS. Most of these powers are
set out in s51 and are referred to as the ’39 heads of
power’.
• S51 The Parliament shall, subject to the constitution,
have power to make laws for the peace, order and good
government of the Commonwealth with respect to:
(i) Trade and commerce with other countries and among
the states.
(ii) Taxation
(xxi) Marriage
(xxii) Divorce in relation to parental rights, custody,
guardianship
The Division of Power under the
Constitution.
• The commonwealth of Australia Constitution Act 1900 (UK) came
into force on the 1st of January 1901.
• The constitution divides the law making powers between the
Commonwealth and State Parliaments. All powers of Commonwealth
Parliament are listed in the Constitution. These powers are known as
SPECIFIC POWERS, listed in s51 and s52 of the
Constitution.
• Powers that are shared between the states and commonwealth
parliament is concurrent powers.
• Powers that solely lie with the Commonwealth Parliament is
exclusive powers.
• Powers left with the State are residual powers.
• Refer to page 92 of your text book for the list of specific powers.
Exclusive Powers
• An exclusive power is a power which can only be exercised by the
Commonwealth Parliament.
• An exclusive power is a law-making power that is not
shared with any other lawmaking authority. These powers are
not shared with the state parliaments.
• Section 52
• All of the powers stated in section 52 are exclusive powers.
• Section 52 states that the Commonwealth Parliament has the
exclusive power to make laws about: Areas of Exclusive power are
coining money, military and customs.
• S115 states that the states shall not coin money. Coining money is
therefore a exclusive power of the Commonwealth.
• S51(vi) Gives power to the Commonwealth Parliament to make laws
relating to military forces.
• S115 States cannot coin money or legal tender
• S114 States cannot raise armies or navies.
Concurrent Powers
• Concurrent powers are law-making powers which both
the Commonwealth Parliament and the state
Parliaments share jurisdiction (shared powers).
• Many of the specific powers given to the Commonwealth
Parliament in s51 of the Constitution are concurrent
powers.
• Eg. The power to make laws in relation to taxation is
given to Commonwealth parliament, but state
parliament can also levy taxes. Commonwealth tax
includes the GST and State tax includes stamp duty and
pay roll tax. S51(ii)
• Both the Commonwealth parliament and State
parliaments have the right to make laws on marriage,
divorce, taxation and bankruptcy.
The Impact of s109
• Under s109 of the Constitution, if there is a
conflict between the state and commonwealth
legislation in a area on concurrent law-making
power the commonwealth law will prevail.
• Read John McBain V. The State of Victoria & Ors
(2000)- Page 95-96 of your text book.
• Complete questions; 1, 2, 3, 4, 7, 8.
• Do this at the end of the slide show 
Residual Powers
• Residual powers are those law-making powers left with the
states at the time of federation and are not listed in the
constitution.
• The states have the power to make laws on areas that affect
their area/state.
• The states retain the rights to make laws in these areas: law
enforcement, education, public transport and health. Those
areas are not listed in the Constitution and the Commonwealth
Parliaments has no right to make laws in areas of residual
power.
• The Constitution protects the power of the states. Each state,
has its own constitution outlining their law-making powers.
• S106 recognises the need for separate state constitutions.
Exclusive
Powers given
to the
Commonwealt
h Parliament
Residual
Powers- All
the powers
left with the
states after
Federation.
They are like
the
remainder
left in the jug.