Constitutional Division Of Powers In Australia Essay

The Constitution is a document that outlines the legal frame work and rules, pertaining to parliaments power to make laws and what they are about. It could also be said that the Constitution controls parliament’s authority, power and operation. For example, only federal parliament can make laws about defence, as stated in section 51 of the Constitution. All members of Australia are bound by the constitution, including the Commonwealth and state parliaments. Prior to the Constitution, the British government ruled over the six separate colonies of Australia. The Australian Constitution was created by the Commonwealth of Australia Constitution Act 1900 (UK), due to the six colonies of Australia deciding to federate into a singular nation. The

Constitution commenced on the 1st January in 1901, which in turn created the states of the Commonwealth, the federal parliament and outlined the division of powers between state and Commonwealth. Each state also has their own constitution; The Constitution of NSW was created by the Constitution Act 1902 (NSW). The Constitution cannot be changed by parliament, instead the people must vote (through a referendum) to amend it.

The separation of law making power has been divided between federal and state governments, this is known as “the Constitutional Division of Powers”. Federal parliament has “executive law making powers”, granting them to make laws surrounding immigration, defence and marriage (which are stated in section 51, outlining areas that federal parliament can make laws on). State parliament has what’s known as “residual powers” (left over areas/areas not included in the constitution). Including roads (tolls/fees), transport/opal card (excluding planes, only federal parliament can make laws regarding aviation) and health, mainly focusing around hospitals. There are some powers in which both the state and Commonwealth share (concurrent powers). For example, both courts deal with criminal law, however, state parliament deals with murder, whilst the Commonwealth deals with terrorism. As a result of both parliaments being able to address law to the same areas there may be overlaps. However, section 109 of the constitution states, in a situation where the laws are inconsistent with each other, the Commonwealth’s laws can override any of the states law, to maintain

consistency. A real life example of this would be a renowned Australian case, the Tasmanian dam case on July 1st, 1983. The case was about the state of Tasmania wanted to build a dam, which was a world heritage site/protected area. As a result of this the Commonwealth denied its construction which resulted in a lot of debate and protesting throughout the decision.

As well as the separation of state and federal parliament, no one group within government can dominate. This is known as “the Separation of Powers”, divided between parliament, judicature (courts) and the Commonwealth Executive (or the Federal Executive council). The overall effect the Constitution has on Australia’s law making, is the fact that law making powers are specifically outlined as to which parliament (Commonwealth or state) can make laws in specific areas. If there was no separation of powers (formed from the doctrine of separation of powers by Charles de Secondat Montesquieu, in 18th century France) of government, there would a risk of one-person group or place, being concentrated too much. This would result in the abuse of parliamentary power and the rights of citizens would definably be at risk. In turn this is maintain consistency within the law, ultimately ensuring everyone in the country is treated fairly and equally.