Powers of Commonwealth and State Parliaments

Constitution

  • A constitution establishes the government's nature, function, and limits.

  • It outlines rules for Commonwealth and State Parliaments, enabling representative and responsible government.

Parliament and Law-making

  • Parliament is the supreme law-making body in Australia.

  • It can make and change laws within its powers.

Division of Constitutional Law-Making Powers

  • Original colonies federated, sharing/handing over powers to the Commonwealth.

  • States retained residual powers (not in the Constitution, protected by sections 106-108).

    • E.g., criminal law, roads, education.

  • Concurrent powers are shared by Commonwealth and States.

    • E.g., taxation, marriage.

  • Exclusive powers are executed only by the Commonwealth.

    • Due to Constitution, nature, or explicit statement.

    • E.g., defense, currency.

Division of Powers

  • Concurrent Powers: Shared by Commonwealth and State Parliaments.

    • Examples: Trade, Marriage, Taxation.

  • Exclusive Powers: Only used by the Commonwealth.

    • Examples: Naval and Military, Customs and Excise, Coining Money.

  • Residual Powers: Only used by State Parliaments.

    • Examples: Law Enforcement, Education, Health, Environment.

Exclusive Powers

  • Only the Commonwealth can legislate in areas like:

    • Naval and Military

    • Immigration/Naturalisation and aliens

    • Coining money

    • External Affairs

    • Customs and excise

Residual Powers

  • Powers not in the Constitution remain with State Parliaments (sections 106, 107, 108).

    • Examples: Criminal Law/Policing, Public transport and environment, Education, Health.

Concurrent Powers

  • Shared by Commonwealth and State Parliaments.

    • Examples: Adoption and maintenance Disputes, Industrial Relations/trade, Marriage, Postal Services.

  • Section 109: Commonwealth law prevails in disputes to the extent of inconsistency.

Section 109 of the Australian Constitution:

  • State and Federal laws are sometimes inconsistent.

    • Cth law example: No discrimination based on marital status.

    • State law example: Only married women get IVF.

  • Section 109 states: Commonwealth law prevails over inconsistent State law.

McBain v Victoria

  • s8 of the Infertility Treatment Act (VIC): IVF for women in legal/de facto marriage.

  • s22 of the Sex Discrimination Act (CTH): No refusal of service based on marital status.

  • Dr. McBain contested; Federal Court held VIC law inconsistent and invalid.

2017 Exam Question Errors

  • Error 1: Supreme Court interpreted Constitution; should be the High Court.

  • Error 2: Conciliation decided the matter; a judge should make a binding judicial determination.

  • Error 3: Victorian law prevails; Commonwealth law prevails per section 109.

2016 Exam Question

  • Conflict possible due to concurrent powers.

  • Section 109 impact: Only inconsistent parts of Victorian law are invalid.