law making powers of parliament

what is division of powers

• refers to the way the constitution has allocated law-making powers to commonwealth and/or state parliaments

what are exclusive powers

• law-making powers that can only be exercised by the commonwealth parliament. Meaning they are the only body that can make laws in these areas

• Outlined in s51 and s52 of the constitution

examples of exclusive powers

• defence

• currency

• customs and border protection

specific powers

• all law making powers of the commonwealth are written in the consitution

• the areas that the commonwealth can make laws on are called specific powers

• can be divided into exclusive and concurrent

what are concurrent powers

• law making powers that the commonwealth and the state parliaments share. This means both the commonwealth and the state parliaments can make laws in these areas

example of concurrent powers

• trade

• marraige and divoirce

• postal services

• taxation

  • commonwealth taxes include income tax and GST

  • state taxes incude stamp duty and payroll tax

what are residual powers

• law making powers retained by the state parliaments

• not listed specifically in the consittion

• the existence of residual powers is protected by the constitution in s106, s107 and s108

examples of residual powers

• public transports

• education

• healthcare

• law enforcement

what is section 109

• section 109 was included in the constitution to resolve inconsistencies between state and commonwealth laws

• an inconsistency could arise if both a state parliament and the commonwealth parliament make a law on the same area and the laws are in conflict

• s109 states the commonwealth law prevails and the state law is invalid to the extent of the inconsistency

significance of s109

• section 109 may alter the division of law-making powers in favour of the commonwealth

  • if there is a conflicting law, the commonwealth law prevails which essentially means that the state now has lost the ability to legislate in that particular area of law

• states will also be less likely to create laws in concurrent areas where a commonwealth law already exists, as they know an inconsistent law would be invalid

limited significance of s109

• s109 does not prevent an inconsisten law from being created and does not operate automatically

  • state parliaments may create any laws within their law making powers - if they are believed to be incosisten with the commonwealth somebody with standing must challenge the law in coirt before it will be deemed invalid

• section 109 also has little impact on the states residual law making