AREA OF STUDY 2
The Constitution and the Protection of Rights
Key knowledge:
• The division of law-making power between state
and Commonwealth parliaments under the
Commonwealth Constitution, including specific
(concurrent and exclusive) and residual powers,
and the impact of Section 109
Key Skills:
• explain the role f the Commonwealth
Constitution with respect to law-making powers
and the protection of rights
• identify the types of law-making powers
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Reasons for Federation
To regulate immigration
Strengthen defence
To control industrial disputes
Tariffs-Uniform tax laws on importation
of goods
Uniform laws in key areas such as,
banking, currency marriage and
divorce-to allow for equal treatment of
all Australians.
Becoming a Federation created
• a Federal Parliament and a Federal
Constitution
• Provided a legal framework for the
Commonwealth Parliament and a
structure of the Commonwealth
Parliament
• Created the High Court and gave it
the power to interpret the
Constitution if the need arises
Prior to Federation who made the laws
for each colony?
Each colony made
its own laws.
Tax
transport
defence
schools
health
crime
coining money
police
Hospitals
immigrations
Australia became a Federation on
the 1 January 1901, as a result of
a law passed in Britain called:
The Commonwealth of Australia
Constitution Act 1900 (UK)
Division of Power
At the time of Federation, 1/1/1901,
the State Parliament gave up some of
their lawmaking powers to the
Commonwealth Parliament.
ie They divided the law making powers
between the two parliaments- state and
commonwealth- and that why it’s called,
‘The Division of Power’.
They gave the Commonwealth Parliament the
power to make laws in areas they thought needed
to be consistent across the whole of Australia,
such as in defence, immigration, coining of
money…
State
Parliament
Eg
• Public transport
• Hospitals
Federal
Parliament
Eg
• Defence
• Taxation
• Marriage
• Immigration
Residual and Specific Powers
• The powers left with the states at the time of
Federation were called Residual Powers. These
powers are not mentioned in the Commonwealth
Constitution.
(residue = leftover)
eg public transport
• The Powers the states gave up to the
Commonwealth Parliament were called Specific
Powers (because they are specifically stated in the
Commonwealth Constitution). The states gave up 39
Specific powers to the Commonwealth Parliament.
Eg Defence
Exclusive and Concurrent Powers
• The states didn’t want to relinquish (give up) all their
powers to the Commonwealth Parliament.
• Of these 39 specific powers, only some are exclusive
to the Commonwealth Parliament
( ie Exclusive powers are powers where ONLY
Commonwealth parliament may legislate).
Eg Defence, immigration
• The rest of the Specific powers are Concurrent (ie
both State and Commonwealth parliament may
legislate in these areas.)
Eg taxation
Past exam question: Question 1 2011:
Distinguish between exclusive and residual
powers. 2 marks.
Example of a good response:
‘Exclusive powers are a subset of specific powers
and are established under section 51 and 52 of the
Constitution. These powers are only exercisable by
the Commonwealth Parliament; no other
parliament has power in these areas. Residual
powers, on the other hand, are not stated in the
Constitution and unlike exclusive powers rest solely
with the states’.
• The phrase ‘on the other hand’ in the answer
is making a distinction between the two types
of powers and shows that they are answering
the question.
Other points of distinction that could
have been included (if the marks were
higher, for example)
• some exclusive powers are protected by other
sections of the Constitution, such as S 115
(coining money), but state powers are only
recognised by section 107.
• exclusive powers are usually those powers given
to the Commonwealth that affect the entire
nation, such as defence, currency and customs,
whereas residual powers are often those that can
affect states indifferent ways (traffic and roads,
local government, crime, etc)
Cont.
• Exclusive powers are specifically listen under
the Constitution, for example some powers
under S 51, whereas residual powers are
those left with the states at he time of
federation and not listed in the Constitution.
Specific Powers
Specific Powers: include Concurrent and
Exclusive Power
S= E + C
S (specific) = E (exclusive)+ C (concurrent)
What happens if there is a conflict in
concurrent powers?
ie since both Commonwealth
Parliament and State Parliament can
legislate in this area then what
happens if both Parliaments make laws
that conflict?
Toss a
coin??
The impact of S 109
• With regards to Concurrent Powers eg
taxation, if a State Law conflicts with a
Commonwealth Law, in an area of
concurrent power, then under S 109 of the
Commonwealth Constitution, the
Commonwealth Parliament’s law will
prevail and the state law will become
invalid to the extent of the inconsistency.
P 89 sets out the
Chapters in the
Constitution
The Division of law-making powers
At federation the States agreed to give up some of their lawmaking powers to the new Commonwealth Parliament.
• _______________ powers- are those powers left with
the states at the time of federation and not listed in the
Constitution Eg ______________________
• ______________ powers- are those law-making powers
given to the Commonwealth Parliament at the time of
Federation. Some of these powers are _______________
( ONLY the Commonwealth Parliament can create laws in
these areas) eg ____________________ and some are
______________ (both the Commonwealth Parliament
and the state parliaments can create law in these areas)
eg ________________________.
The Division of law-making powers
At federation the States agreed to give up some of their lawmaking powers to the new Commonwealth Parliament.
• __Residual________ powers- are those powers left with
the states at the time of federation and not listed in the
Constitution Eg __ public transport _________
• __Specific_________ powers- are those law-making
powers given to the Commonwealth Parliament at the
time of Federation. Some of these powers are
__Exclusive_________ ( ONLY the Commonwealth
Parliament can create laws in these areas) eg _Defence _
and some are __Concurrent_____, that means ,both the
Commonwealth Parliament and the state parliaments can
create law in these areas) eg ___Tax__.
S 51 of the Constitution lists the
Specific Powers of the
Commonwealth Parliaments
p 92-93 text
Sections of the constitution I must know
and explain their relevance:
•
S 51- lists the specific powers (S=E+C) of
Commonwealth Parliament
•
S 109- states that in concurrent powers where there is
a conflict between a state and Commonwealth Law,
then the Commonwealth Parliament’s law will prevail
and the state law will become invalid to the extent of
the inconsistency
•
S 128- sets out the referendum process, which is the
only way to change the words in the constitution.