Commonwealth
Parliament
Commonwealth Constitution
Imperial legislation
An Act to constitute the
Commonwealth of Australia [9th
July 1900]
63&64 Victoria, Chapter 12
Short title:Commonwealth of
Australia Constitution Act
Table of Provisions
 Preamble: The Constitution
 Chapter I. The Parliament (s. 1 to 60)
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Part I - General (s. 1 to 6)
Part II - The Senate (s. 7 to 23)
Part III - The House of Representatives (s. 24 to 40)
Part IV - Both Houses of the Parliament (s. 41 to 50)
Part V - Powers of the Parliament (s. 51 to 60)
Chapter II. The Executive Government (s. 61 to 70)
Chapter III. The Judicature (s. 71 to 80)
Chapter IV. Finance and Trade (s. 81 to 105A)
Chapter V. The States (s. 106 to 120)
Chapter VI. New States (s. 121 to 124)
Chapter VII. Miscellaneous (s. 125 to 127)
Chapter VIII. Alteration of the Constitution (s. 128)
The Schedule
Source: Australian Parliament House website
s1 Constitution
1.The legislative power of the
Commonwealth shall be vested in
a Federal Parliament, which shall
consist of the Queen, a Senate,
and a House of Representatives,
and which is herein-after called
"The Parliament," or "The
Parliament of the Commonwealth."
Three Elements
Queen/Governor-General
Senate/Upper House
House of Representatives/Lower
House
Queen/Governor-General
2. A Governor-General appointed by the
Queen shall be Her Majesty's
representative in the Commonwealth,
and shall have and may exercise in
the Commonwealth during the
Queen's pleasure, but subject to this
Constitution, such powers and
functions of the Queen as Her Majesty
may be pleased to assign to him.
1975 letter from Queen’s secretary
“As we understand the…Australian
Constitution firmly places the
prerogative powers of the Crown in
the hands of the Governor-General as
the representative of the Queen in
Australia.”
Express powers of the
Governor-General
• S5: the power to summon, prorogue and dissolve
Parliament;
• S56: the power to recommend the passage of money
bills;
• S57: the power to dissolve both houses of Parliament
in a deadlock;
• S58: the power to assent to legislation; and
• S61: the executive power of the Commonwealth is
vested in the Queen, and is exercisable by the
Governor – General.
• S64: The Governor- General appoints Ministers
• S68: Commander in Chief of the military forces
• S72: appoints judges of federal courts
Limits on the power of the G-G
 s2: “subject to this Constitution”
– Constitutional monarchy
 Responsible government
– the Queen (and her delegate) do not exercise
their powers without ministerial advice.
– Ministers are in turn responsible to
Parliament for their advice and the
functioning of the departments they
supervise.
Royal Assent
58. When a proposed law passed by both
Houses of the Parliament is presented to
the Governor-General for the Queen's
assent, he shall declare, according to his
discretion, but subject to this Constitution,
that he assents in the Queen's name, or
that he withholds assent, or that he
reserves the law for the Queen's
pleasure. The Governor-General may
return to the house in which it originated
any proposed law so presented to him,
and may transmit therewith any
amendments which he may recommend,
and the Houses may deal with the
recommendation.
Assent has
become an
automatic,
inevitable
response.
Discretionary power of G-G
 Prerogative or reserve powers
 ss 61 and 51(xxxix)
 Includes:
– power to appoint a Prime Minister in a hung
Parliament
– power to dismiss a Prime Minister where the
House of Representatives has passed a
motion of “no confidence” in the Prime
Minister; and
– The power to refuse to dissolve the House of
Representatives contrary to Ministerial
advice.
Part II – The Senate
7. The Senate shall be composed of senators for
each State, directly chosen by the people of the
State, voting, … as one electorate.
…
Until the Parliament otherwise provides there
shall be six senators for each Original State.
The Parliament may make laws increasing or
diminishing the number of senators for each
State, but so that equal representation of the
several Original States shall be maintained and
that no Original State shall have less than six
senators. The senators shall be chosen for a
term of six years,…
Victoria v The Commonwealth
(1975) 134 CLR 81 (at 121 –2) per Barwick CJ
“It is evident from the terms of the Constitution that the
Senate was intended to represent the States, parts of the
Commonwealth, as distinct from the House of
Representatives which represents the electors throughout
Australia. It is often said that the Senate has, in this
respect, failed its purpose. This may be so, due partly to
the party system and to the nature of the electoral system;
but even if that assertion be true it does not detract from
the constitutional position that it was intended that
proposed laws could be considered by the Senate from a
different point of view from that which the House of
Representatives may have taken. The Senate is not a
mere house of review; rather it is a house which may
examine a proposed law from a standpoint different from
that which the House of Representatives may take.”
Term of office
s13: 6 year terms
s24: nexus provision
Territorial Senators - 3 year terms
Continuous body
Term commences 1 July following
election
Territorial Senators
Territorial Senators in a States
House?
122. The Parliament may make laws
for the government of any territory …
and may allow the representation of
such territory in either House of the
Parliament to the extent and on the
terms which it thinks fit.
First Territorial Senators Case
Senate (Representation of
Territories) Act 1973 (Cth)
Western Australia v Commonwealth
(1975) 134 CLR 201
Mason, McTiernan, Jacobs and
Murphy JJ – legislation valid
Barwick CJ, Gibbs and Stephen JJ invalid
Part
III
House
of
Representatives
24. The House of Representatives shall be
composed of members directly chosen by the people
of the Commonwealth, and the number of such
members shall be, as nearly as practicable, twice the
number of senators. The number of members chosen
in the several States shall be in proportion to the
respective members of their people, and shall, until
the Parliament otherwise provides, be determined,
whenever necessary, in the following manner:
(i.) A quota shall be ascertained by dividing the
number of the people of the Commonwealth, as
shown by the latest statistics of the Commonwealth,
by twice the number of senators:
(ii.) The number of members to be chosen in each
State shall be determined by dividing the number of
people of the State, as shown by the latest statistics
of the Commonwealth, by the quota; …But
notwithstanding anything in this section, five
members at least shall be chosen in each Original
State.
Legislative Power
s51“The Parliament shall, subject
to this Constitution, have power to
make laws for the peace, order, and
good government of the
Commonwealth with respect to …”
39 ennummerated powers
Powers may be exclusive or
concurrent
Exclusive/concurrent powers
An exclusive power is one which
can only be exercised by one
government (federal or state); a
concurrent power is one in respect
of which both state and federal
governments may legislate.
State/Federal powers
107. Every power of the Parliament of a
Colony which has become or becomes a
State, shall, unless it is by this
Constitution exclusively vested in the
Parliament of the Commonwealth or
withdrawn from the Parliament of the
State, continue as at the establishment
of the Commonwealth, or as at the
admission or establishment of the State,
as the case may be.
Exclusive powers:
s52- Federal power to regulate
federal property and public service;
s90 – Federal power to make laws
imposing duties of customs and
excise and granting bounties;
ss111,112 – Federal power to make
laws with respect to
Commonwealth territories.
Powers withdrawn from States
s115 – Federal power with respect
to coinage
s114 – Federal power to raise and
maintain military forces for the
defence of the Commonwealth
Matters, by their nature,
exclusive
 s51(iv) – borrowing money
 s51(xix) – naturalisation
 s51(xxiv) – service and execution of
process
 s51(xxv) – recognition of State laws and
records
 s51(xxx) – relations with Pacific islands
 s51(xxxii) – control of railways for
defence purposes
 s51(xxxiii) – acquisition of State railways
 s51(xxxviii) – exercise of Imperial power
 s51(xxxix) – incidental power
Concurrent powers include:
51(i) – trade and commerce
51(ii) – taxation, apart from
customs and excise
51(vi) – defence
51(vii) – lighthouses
51(viii) – Astronomical and
meteorological observations
51(ix) - Quarantine
Concurrent powers:
51(x) – Fisheries
51(xi) – census and statistics
51(xiii) – banking
51(xiv) – insurance
51(xv) – weights and measures
51(xvi) – Bills of exchange
51(xvii) – Bankruptcy
51(xviii) – Copyright etc
Concurrent powers:
51(xix) – aliens
51(xx) – corporations
51(xxi) – marriage
51(xxii) – divorce and matrimonial
causes
51(xxiii) – pensions etc
51(xxviii) – influx of criminals
etc
Residual State powers
Everything not mentioned is in the
residual power of the States.
This includes
– Agriculture
– Courts
– Factories and shops
– Health
– Land
Residual State powers:
Mining
Municipal institutions
Police
Prisons
Education
Trade and commerce within a State
etc
Referral of State powers
S51(xxxvii)
– Corporations Act 2001 (Cth)
Cf Application scheme
– Competition and Consumer Act 2010
(Cth)
State/Federal Powers
Residual State Power
Exclusive
Federal
Power
Concurrent
Powers
Conflict State/Federal
109. When a law of a State is
inconsistent with a law of the
Commonwealth, the latter shall
prevail, and the former shall, to the
extent of the inconsistency, be
invalid.
Inconsistency
Must be inconsistent laws
Inconsistency may be:
–Direct – both laws can’t be obeyed;
or
- one law takes away a right or
privilege conferred by the
other
- Indirect – Commonwealth has
‘covered the field’
‘Cover the field’
Clyde Engineering v Cowburn (1926)
37 CLR 466
– Direct inconsistency, and covered the
field
Viskauskas v Niland (1982) 153 CLR 280
– No direct inconsistency, covered the
field
University of Wollongong v
Metwally (1984) 158 CLR 447
– Indirect inconsistency can be cured,
but not retrospectively
Viskauskas v Niland
“There is no direct inconsistency between the
Commonwealth Act and the NSW Act – it is
obviously possible for a person to obey both
laws by refraining from committing any act of
racial discrimination. However, it is now clearly
established that there may be inconsistency
within s109 although it is possible to obey both
the State law and the Commonwealth law. In
Clyde Engineering Co. Ltd v Cowburn, Isaacs J
said that “if a competent legislature expressly
or impliedly evinces its intention to cover the
whole field that is a conclusive test of
inconsistency where another legislature
assumes to enter to any extent upon the same
field.”
Viskauskas v Niland
“The Commonwealth Parliament has
chosen the course of itself legislating to
prohibit racial discrimination, and having
done so it can only fulfil the obligation
cast upon it by the Convention if its
enactment operates equally and without
discrimination in all the States of the
Commonwealth. It could not …admit the
possibility that a State law might
…detract from the efficacy of the
Commonwealth law. The subject matter
of the Commonwealth Act suggests that
it is intended to be exhaustive and
exclusive…”(291)
University of Wollongong v
Metwally
“Parliament cannot exclude the
operation of s109 by providing that
the intention of the Parliament shall
be deemed to have been different
from what it actually was and that
what was in truth an inconsistency
shall be deemed to have not
existed.” per Gibbs CJ at [9]
Brennan J:
 “It is impossible to suppose that s109
could so operate as to attribute to a
State law no legal force and effect in its
application to acts, matters and things
that occurred or existed prior to the
amendment to the Commonwealth law
and, after the amendment, to
acknowledge that the State law had full
force and effect in its application to the
same acts, matters and things.” [5]
Growth of Commonwealth power
High Court is responsible for
interpreting the Constitution – and
the legislative powers conferred by
the Constitution.
Doctrine of ‘reserved powers’ and
inter-governmental immunity.
Engineers Case
The Amalgamated Society of
Engineers v Adelaide Steamship Co
(1920) 28 CLR 129
Engineers doctrine promotes the
Commonwealth
Commonwealth powers to be read
fully, and not read down to protect
interests of States.
Tied grants
96. During a period of ten years after
the establishment of the
Commonwealth and thereafter until
the Parliament otherwise provides,
the Parliament may grant financial
assistance to any State on such
terms and conditions as the
Parliament thinks fit.
Federal Roads Case
Victoria v The Commonwealth (1926) 38
CLR 399
DOGS Case
Attorney-General (Vic) ex rel. Black v
The Commonwealth (1981) 146 CLR 559
Williams v Commonwealth
[2012] HCA 23
at 148
With respect to the significance of s 96 in
the federal structure, the following
passage from the reasons of Barwick CJ
in the AAP Case is in point:
"Section 96 ... has enabled the Commonwealth
to intrude in point of policy and perhaps of
administration into areas outside
Commonwealth legislative competence. No
doubt, in a real sense, the basis on which
grants to the claimant States have been
quantified by the Grants Commission has
further expanded the effect of the use of s 96.
But a grant under s 96 with its attached
conditions cannot be forced upon a State: the
State must accept it with its conditions. Thus,
although in point of economic fact, a State on
occasions may have little option, these
intrusions by the Commonwealth into areas of
State power which action under s 96 enables,
wear consensual aspect.”
External Affairs power
51.The Parliament shall, subject to
this Constitution, have power to
make laws for the peace, order, and
good government of the
Commonwealth with respect to: (xxix.) External Affairs:
Tasmanian Dam case
Commonwealth v Tasmania (1983)158CLR1
4/3 decision
Mason, Murphy, Brennan and Deane
JJ: Commonwealth could give effect to
any international treaty obligation
imposed by a bona fide international
agreement or by customary law on
any subject.
Deane J at 805:
“Circumstances could well exist in
which a law which procured or ensured
observance within Australia of the spirit
of a treaty or compliance with an
international recommendation or pursuit
of an international objective would
properly be characterised as a law with
respect to external affairs,
notwithstanding the absence of any
potential breach of defined international
obligations or of the letter of
international law”
Chapter VIII. Alteration Of The
Constitution.
128. This Constitution shall not be altered except in
the following manner:-The proposed law for the alteration thereof must be
passed by an absolute majority of each House of
the Parliament, and not less than two nor more
than six months after … the proposed law shall be
submitted in each State and Territory to the
electors….
When a proposed law is submitted to the electors
the vote shall be taken in such manner as the
Parliament prescribes….
And if in a majority of the States a majority of the
electors voting approve the proposed law, and if a
majority of all the electors voting also approve the
proposed law, it shall be presented to the
Governor-General for the Queen's assent….
Growth of Federal power
 Constitution:
– S128
– S51(xxxvii)
 Co-operation:
– COAG process
– Co-operative scheme
– Application scheme
 High Court:
– Engineer’s case
– S109/’cover the field’
– S96
– S51(xxix)