The Australian Constitution

what is it

  • sets the basic rules by which country o state is governed Australia's constitution is set out in the commonwealth of australia constitution act 1900

  • came into effect on the 1st of jan 1901

  • meant that australian colonies became and independent nation as the commonwealth of australia

  • prior to the constitute Australia was made up of seperate british colonies with no federal government

what is it for

  • primary piece of legislation in australia which outlines the rules by which australia is governed

  • it established the federal parliament which makes laws for the entire country

  • the federal government has limited law making powers with certain areas reserved for state parliament's

  • the division of powers between the states

  • a key issue in drafting it was which powers the states would transfer into the commonwealth

key features

  • Compromises 8 chapters and 128 sections, outlines principles and structure of federal, state and local governments and establishes the high court

    • Chapter I: the parliament

    • Chapter II: the executive government

    • Chapter III: The judicature

    • Chapter IV; finance and trade

    • Chapter V: the states

    • Chapter VI: New states

    • Chapter VII: miscellaneous

    • Chapter VIII: alterations of the constitution

Doctrine of the seperation of powers

  • is a principles that divides the power of institutions of government into three seperate branches: the legislative, executive and judiciary. each branch has its own role and responsibilities and keep a check on others

  • first 3 chapters define the parliament, the executive and the judicary in australia and the roles they play in making interpreting and enforcing australia

separation of powers

  1. legislative

    • arm of government: parliament, queen, senate, house of representative, legislative assembly

    • Role: the parliament makes, amens and repeals statute law

  2. Executive

    • Arm of government: Crown, ministers headed by the prime minister

    • Role: puts law into action through government agencies

  3. judicial power: interpretation of law- courts and tribunals

    • arm of government: high court of australia, federal court of australia, federal circuit and family court of australia, tribunals, Queensland court of appeal, Supreme court of queensland.

    • role: interpretation of law

Levels of government:

  • the three levels are

    • federal government: makes law for whole of australia

    • 6 state ad 2 mainland territory parliament's: makes laws for state or territory

    • local councils: make local laws’

Division of powers

  • which law maker powers are given to the commonwealth

  • there a three different types of powers that exist as a result of the australian government

    • exclusive powers

      • only the commonwealth can make laws for

      • section 51: sets out the legislative powers of the federal parliament some of these powers are listed as exclusive

      • section 52: exclusive powers are law making powers that belong ONLY to the federal government

      • examples: immigration defence and currency

    • concurrent powers

      • some powers are non exclusive and shared with the states

      • section 51 contains some concurrent powers which are shared between federal and state parliament's

      • example: taxation, education and health care

      • both the federal and state parliament can make legislation of these areas

      • section 109: deals with any inconsistencies that arise between the laws of the commonwealth and the laws of the states, federal legislation will override state legislation.

    • residual powers

      • before federation each colony had its own set of powers some of which were handed over to the commonwealth

      • the remaining powers remained with the states are called the reisdual

      • example: housing transport criminal law and schools

role of the high court in australia

  • decides disputes from the interpretation of the constitution and it also is the ultimate court of appeal for all australian courts

Tasmanian Dams case

  • facts

    • in 1978, tasmania planned to build the franklin dam which would flood parts of the river

    • in 1982 the area was declared a world heritage site by united nations

    • the tasmanian government proceeded with dam construction despite the world heritage conversation act 1983 passed by the australian government to protect the site

    • this led the aus government to take Tasmania to high court

  • Issues

    • whether the world heritage properties conservation act 1983 was a valid law

    • If Section 51(xxix) of the Constitution, permitted the Commonwealth to make laws fulfilling international treaty obligations

  • verdict

    • the high court ruled 4-3 in favor of the commonwealth upholding the act and halting the dams construction

  • reasoning

    • majority found that the exclusive power to be broad to allow australia to engage fully in international matters

    • this power enabled the paliment to implement the world heritage convention making the act valid

  • legacy

    • expanded federal powers, allowing the commonwealth to legislative on International treaties impacting federal state power balance

    • seen as a pivotal movement for dnvoirmental law leading to more laws protecting Australia's natural heritage

    • established the practice of high court media releases for public understanding