Legal Studies (4.1)

Structure of Commonwealth Parliament

Senate (Upper House)

• Composed of 76 members

  • 12 from each state

    • Section 7 of the Australian Constitution requires all states to have have equal representation in the Senate

  • 2 from each territory

• Senators serve a six year term

  • Half of the Senate is elected every three years

House of Representatives (Lower House)

• Composed of 150 members

  • Each represent an electorate of 120,000 members

• Members serve a three year term

• The party or coalition which holds the majority of seats (76) in the House of Representatives will form government

  • The leader of that party will be the Prime Minister

  • The party/coalition who is the government of the day will also form the cabinet (Prime Minister and senior government ministers)

Role of the House of Representative in Law Making

‘House of Government‘

• As government and the cabinet is formed in the House of Representatives, so is the legislative agenda

• Government policies will thus establish Parliament’s legislative agenda, forming the basis of the majoirty of laws introduced, debated and passed in Parliament.

Role of the Senate in Law Making

Role of the Crown in Law Making

Governor-General can withold royal assent or disallow a law => Governor cannot

Division of Powers

How legislative powers are divided between the Commonwealth and state Parliaments

Residual Powers

Legislative powers which were retained by the states, and solely reside with them. They were therefore not given to the Commonwealth Parliament by the Australian Constitution

• eg. health, education, road laws

s106-108 recognise the ongoing law making powers of the state

• Residual powers are not listed in the Constitution as specific powers

Laws made under residual power will vary from state to state

Specific Powers

Legislative powers enumerated in the Constitution itself

• Specific powers can be exclusive or concurrent

Exclusive Powers

The legislative powers in the Australian Constitution that only the Commonwealth Parliament can exercise, and are therefore solely within its jurisdiction

• eg. immigration (naturalisation), defence, currency

Some exclusive powers are exclusive by section 51 providing a power to the Commonwealth Parliament and another section of the Constitution removing the power from the states

• eg. s51xii and s115 provide the Commonwealth power over coinage and currency

• eg. s51vi and s114 provide the Commonwealth the power to raise the navy and army

Some law making powers are exclusive by nature

• eg. s51xix provides the Commonwealth with power over naturalisation, which is an exclusive power by nature as only the Commonwealth can legislate over Australian citizenship

• eg. s52

Laws made under exclusive powers will be the same across Australia

Concurrent Powers

Legislative powers in the Australian Constitution that are shared by the Commonwealth and state Parliaments, and can therefore be exercised by both.

• eg. taxation, trade, marriage and divorce

  • Commonwealth does income tax and GST, while the state does a payroll tax

Section 109 provides that if there is an inconsistency between Commonwealth and state concurrent laws, the state law will be invalid to the extent of the inconsistency

• eg. The Marriage Act 1967 (Cth) overrode the Marriage Act 1958 (Vic), as the latter was inconsistent with the former, and thus made invalid

Concurrent powers include all the specific powers given to the Commonwealth Parliament that are not exclusive powers

Section 109

“When a law of the 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.

• Only applicable to concurrent powers

Significance of Section 109

Acts as a restriction on state Parliaments

• State Parliaments are constrained from making laws under their concurrent powers in areas where the Commonwealth had already legislated, as any inconsistent legislation can be declared invalid to the extent of the inconsistency

• However section 109 will only act as a restriction on the concurrent law making powers of a state state’s, and their residual legislative powers will therefore remain unaffected

• It will only limit a state’s law making powers if the Commonwealth has already legislated in the concurrent area, and even then, states will only be limited from passing inconsistent legislation

• Section 109 will also only restrict state Parliament while the inconsistency lasts, therefore, if the Commonwealth law is abrogated or amended then the state law will no longer remain inconsistent

Provides a mechanism to resolve conflicting legislative in areas of concurrent law, ensuring there is a consistent approach

• As the Commonwealth Parliament’s laws will prevail over state Parliament’s laws to the extent of the inconsistency

• This ensures there is clarity around concurrent laws

• The Commonwealth’s Parliament will thus be able to create national laws

Section 109 is not automatic

• The High Court will be required to determine if state and Commonwealth legislation conflict, and both pieces of legislation will continue to operate until declared inconsistent by the High Court

eg. McBain v State of Victoria [2000]

High Court

• s71 of the Constitution establishes the High Court

• s76 provides the High Court with the jurisdiction to hear and determine disputes arising under the Constitution

When a constitutional dispute arises, the High Court will be required to interpret the Constitution, and determine the scope of the phrase/section being interpreted

R v Brislan [1935]

• The Commonwealth Parliament passed the Wireless Telegraphy Act 1905 (Cth), which required all owners of wirelesses to hold a license

• The defendant, Brislan was charged with not holding a license for her wireless as required

• Brislan argued in the High Court that the Commonwealth Parliament did not have legislative power over wirelesses, as it was not provided to them with the Constitution

• s51v of the Constitution gives the Commonwealth the power to make laws for “postal, telegraphic, telephonic and other like services”

• The Commonwealth argued that the wireless was a “like service”, and they therefore did have jurisdiction so the Wireless Telegraphy Act 1905 (Cth) was valid

• The High Court found that wirelesses were a “like service” under s51v, and the act was thus valid

Impact of R v Brislan [1935] on the Division of Powers

The High Court’s broad interpretation of s51v increased the concurrent law making powers of the Commonwealth and restricted that of the states

Significance of R v Brislan [1935] on the Division of Powers

Caused a shift in division of law making powers from state to Commonwealth

Power became more centralised and uniform across Australia

R v Brislan [1992] established precedent that the Commonwealth Parliament has relied on to assume power over other electronic means of communication

• eg. they relied on the broad interpretation of s51v pass the Interactive Gambling Act 2001 (Cth)

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