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Division Of Powers In Australia Essay

2541 words - 11 pages

Under the Australian Constitution, legislative power is divided between the Commonwealth and State parliaments.

Compare and contrast their legislative power and analyse the effectiveness of this division.

The Commonwealth of Australia Constitution Act 1900 (UK) was implemented on January 1st 1901, at which time Australia united its six independent colonies. The Founding Fathers who wrote the Constitution created their government in the manner of a federal system of government meaning that the legislative powers are divided between the Commonwealth and state governments. They did this so the colonies would retain much of their original power with a Commonwealth Government only ruling ...view middle of the document...

When ruling on cases between states and the Commonwealth, the High Court’s duty is to interpret and apply their interpretation of the Constitution. Originally, several of those who had a hand in writing the Constitution were judges in the High Court and when problems surrounding the divide arose they could be interpreted as the Founding Fathers meant it to be. But as time continued, the judges were replaced and as Australia’s social needs changed so did the interpretation of the Constitution and today the High Court has been highly influential on how effective the division of legislative powers has been.

The legislative powers are divided into four categories; exclusive, prohibitive, concurrent and residual. Exclusive powers concern only the Commonwealth Government. It has the sole right to make laws in areas that relate to the Australian Capital Territory, matters relating to the control of the public service and other specified or enumerated matters declared by the Constitution. Many of these are listed in Section 51 of the Constitution (though not all the powers in Section 51 are exclusive powers) such as Section 51 (xii) which gives the Commonwealth the sole right to make laws concerning currency or Section (vi) which specifies only the Commonwealth can make laws about defence. In these cases it is clear that only the Commonwealth can make laws in these areas as the states are specifically prohibited in the Constitution.

There are also areas that the Commonwealth is specifically prohibited from making laws in. The main prohibitions are concerned with protecting the states. Section 92 provides freedom of trade or commerce to any state and Section 99 stipulates the Commonwealth cannot make a law that gives preferential treatment to one state over another. Other prohibitions protect the rights of individuals, such as the freedom of religion and the right to trial by duty.

Concurrent powers are those legislative areas that both the Commonwealth and state governments are able to make laws in. These include areas such marriage, divorce and bankruptcy. When a Commonwealth and a state law overlap, the state law is rendered invalid and the Commonwealth’s law takes over under Section 109: “When a law of a 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.” However, this is not automatic and must be brought to the High Court.

There are also a number of matters that are not specified in the Constitution and are known as residual powers. Residual powers pertain to all other legislative powers not mentioned in the Constitution and therefore belong to the states. Under residual power the states can make laws in the area of criminal law, police, education, health and the environment.

As the legislative powers are divided this way it often more complex to operate government and make laws than if there was just one central government. Questions...

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