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.

CONSTITUTION

Key Terms•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 Parliament- Includes 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 Commonwealth Parliament

Residual Powers- All the powers left with the states after Federation. They are like the remainder left in the jug.