Chapter 10 – Law-Making Powers (VCE Legal Studies Units 3 & 4)

10.1 An introduction to the Australian Constitution

• Definition of a constitution

  • A set of rules & principles that establish the nature, functions, powers, duties and limits of government.

• Australia’s formal, written constitution

  • Long title: Commonwealth of Australia Constitution Act 1900 (UK).

• Core features established by the Constitution

  • Creates the Commonwealth Parliament.

  • Details composition of the House of Representatives & the Senate.

  • Establishes the High Court of Australia.

  • Regulates key matters concerning the states.

  • Sets out the law-making powers allocated to the Commonwealth Parliament.

  • Provides a formal alteration mechanism – the referendum process.

• Real-world importance

  • Functions as the supreme legal document: all parliaments & courts are bound by it.

  • Balances federalism: national cohesion vs. state autonomy.

10.2 The Commonwealth Parliament

Composition

• The King (represented by the Governor-General).

• Senate – upper house.

• House of Representatives – lower house.

House of Representatives (HoR)

• Known as the “people’s house”.

• $151$ elected members, each representing one electorate.

• Government formation

  • Party/coalition with majority in HoR becomes government; leader becomes the Prime Minister.

  • Next largest party becomes the Opposition.

Roles of the HoR in law-making

• Initiate & make laws – bills usually introduced here first.

• Determine government – majority support = executive power.

• House of review – for bills originated in the Senate.

• Control government expenditure – money (appropriation) bills must begin here.

• Represent the people – reflects current political will of electors.

• Scrutinise administration – question time, committees, debates.

Senate

• “States’ house” / “house of review”.

• $76$ senators: $12$ from each state, $2$ from each territory.

• Six-year terms (half-Senate elections every three years).

Roles of the Senate in law-making

• House of review – examines the majority of bills passed by HoR.

• Equal state representation – protects smaller states from domination.

• Initiate bills – except money bills.

• Scrutinise bills & executive – through committees, estimates hearings, debates.

10.3 The Victorian Parliament

Composition

• The King (represented by the Governor of Victoria).

• Legislative Council (LC) – upper house.

• Legislative Assembly (LA) – lower house.

Legislative Assembly

• Lower house; $88$ members (one per Victorian electorate).

• Government formation

  • Majority party/coalition → Premier of Victoria.

  • Second-largest party → Opposition.

Roles in law-making

• Initiate & pass bills.

• Form government – provides confidence & supply.

• Scrutinise government administration – questions, committees.

• Represent the people – reflects electoral will at state level.

• House of review – for LC-originated bills.

• Control expenditure – money bills originate here.

Legislative Council

• $40$ MLCs: 5 elected from each of 8 regions (proportional representation).

Roles in law-making

• Primary role: house of review – most bills come from LA.

• Initiate & pass bills (except appropriation).

• Scrutinise administration – committee system, questions without notice.

10.4 The Crown in Australia

Representation

• Governor-General (GG) – federal level.

• Six Governors – one per state.

Main roles in law-making

1. Granting royal assent – formal approval → bill becomes an Act.

2. Withholding royal assent – extremely rare, constitutional reserve power.

3. Appointing the Federal/State Executive Council

   • Council advises the GG/Gov on regulations, proclamations, appointments.

Significance & ethical dimension

• Ensures democratic & constitutional processes are followed.

• Provides a non-partisan “constitutional umpire” if political deadlock arises.

• Reflects Australia’s constitutional monarchy heritage; prompts periodic republican debates.

10.5 Division of Law-Making Powers

Categories created by the Constitution

1. Residual powers – retained by states.

2. Exclusive powers – only Commonwealth can legislate.

3. Concurrent powers – shared by Commonwealth & states.

Residual Powers

• Not enumerated in the Constitution.

• Typical areas: criminal law, education, public transport, road laws, medical procedures.

• Significance: foundation of state autonomy; any shift generally requires referendum, High Court interpretation, or referral.

Exclusive Powers

• Found mainly in $\text{ss. }51,\ 52$.

• Exclusive explicitly or by:

  • Other constitutional sections (e.g.

  • $s114$ prohibits states from raising naval/military forces).

  • Nature of power (e.g. naturalisation).

• Common examples: defence, currency, customs & border protection.

Concurrent Powers

• Listed in $s51$ (31 specific heads of power).

• Typical areas: trade, taxation, marriage & divorce, postal/telegraphic/telephonic services.

• Potential for conflict → triggers $s109$.

10.6 Section 109 of the Australian Constitution

• Provides constitutional mechanism to resolve Commonwealth–state conflicts.

• Textual effect: Commonwealth law prevails to the extent of the inconsistency.

Practical implications

• Acts as a restriction on state parliaments: discourages inconsistent legislation.

• Does not automatically invalidate state laws; inconsistency must be judicially determined.

• If Commonwealth law later changes or is repealed, previously invalid state provisions may revive.

• Encourages cooperative federalism or referrals to avoid litigation.

Real-world relevance example (not in transcript but examinable)

• Same-sex marriage: Prior to $2017$, states passed relationship registers; true marriage remained constrained by federal Marriage Act.

10.7 High Court Interpretation & Case Law Impact

Constitutional Jurisdiction

• Under $s75$ & $s76$, the High Court can adjudicate:

  • Cases involving the Commonwealth.

  • Disputes between states or residents of different states.

• Judgments can shift the federal balance by expanding or constraining Commonwealth powers.

The Brislan Case (1935) – R v Brislan; Ex parte Williams

• Constitutional issue: Does “postal, telegraphic, telephonic and other like services” in $s51(v)$ include wireless (radio) broadcasting?

• Facts

  • Wireless Telegraphy Act 1905 (Cth) required radio licence.

  • Defendant fined; challenged constitutional validity.

• High Court majority reasoning

  • Radio broadcasting = form of telephonic communication.

  • Falls within “other like services” → Commonwealth’s head of power.

• Significance

  1. Extended Commonwealth power into broadcasting – previously residual.

  2. Converted radio into a concurrent area; any conflict → $s109$.

  3. Precedent for future technology (e.g. Jones v Commonwealth – TV; potential application to internet).

The Tasmanian Dam Case (1983) – Commonwealth v Tasmania

• Constitutional issue: Scope of external affairs power $s51(xxix)$.

• Facts

  • Tasmanian Act authorised dam on Gordon River (state residual power: land & environment).

  • Area listed under UNESCO World Heritage Convention.

  • Commonwealth enacted World Heritage Properties Conservation Act 1983 (Cth) prohibiting dam.

  • Tasmania challenged Cth law’s validity.

• High Court majority reasoning

  • External affairs power allows implementation of bona fide international treaty obligations.

  • World Heritage Convention obligations justified Cth legislation → valid.

  • Conflict with Tasmanian law → state Act invalid under $s109$.

• Significance

  1. Major shift of power from states to Commonwealth in environmental regulation.

  2. Confirmed Cth capacity to legislate in residual areas when fulfilling treaties.

  3. Limitations articulated:

  • Cth laws cannot exceed the treaty’s scope.

  • Cannot infringe express constitutional rights.

  • Treaty must be genuine (practically presumed).

  1. States retain capacity to legislate where Cth chooses not to act.

Conceptual Connections & Exam Tips

• Federalism in motion: Constitution’s explicit text + High Court interpretation continually redefine power balance.

• Section 109: Memorise wording; practise applying to hypothetical conflicts.

• Case law as precedent: Cite Brislan & Tas Dam when discussing technological change & international obligations respectively.

• Role of houses: Link functions (review, initiation) to principles of representative & responsible government.

• Crown’s reserve powers: Though rarely used, illustrate constitutional safeguards; compare with republican debates.

• Ethical/Practical implications: Balance between national interest (e.g. environmental protection) vs. state self-determination.

Quick Reference – Numerical & Sectional Data

• $151$ HoR members.

• $76$ Senators (12×6 states + 2×2 territories).

• $88$ Members LA (Vic).

• $40$ Members LC (Vic).

• Key constitutional sections: $s51$ (heads of power), $s51(v)$ (communications), $s51(xxix)$ (external affairs), $s52$ (exclusive powers), $s75$ (original jurisdiction), $s109$ (inconsistency), $s114$ (military forces prohibition).

Potential Essay Linking Points

• Discuss how referendums, High Court interpretation, and COAG/referral of powers each modify the original division of powers.

• Evaluate whether High Court activism (e.g. Tas Dam) erodes federal balance or ensures national uniformity in global matters.

• Reflect on technological neutrality of constitutional language: “other like services” permitting adaptation without formal amendment.