Division Of Powers In Australia Essay

The Australian Constitution is one of the most important documents ever produced in the history of our nation, since Federation. The constitution was established in 1901 and was written by high court judges. Section 51 is the constitution high court judges refer to most commonly today, they use the constitution to interpret laws. The Australian Government has different powers and sectors; these powers have been divided between the states and the Commonwealth government. This is referred to as the Division of Powers. It has been argued that the division of powers is poorly defined within the Australian Constitution as there have been many cases in history where these powers have been abused and in turn new rulings have been passed by the high

court or word changes made by referendum . When it comes to uncertainties regarding areas of the constitution and the division of powers, the high court is referred to. The high court judges in 1891-1901 were heavily involved in the constitutional planning process and rely on it heavily today in their judicial interpretation. The constitution is now argued to be an out of date document and there is consistent debate around Australia and in parliament as to whether it needs to be updated or taken out of our system altogether, in line with some other law making, political high standing countries. High court judges rely on this material to make and interpret law, some also believe that high court judges change the constitution slightly per say when interpreting it in to refer back to historical cases. There are various cases which are particularly relevant when talking about this topic such as cases that have impacted the commonwealth’s power over such issues and how the high court ruled on these cases.
There are various cases which have been passed through the high court by the commonwealth which have greatly affected the balance of power in Australia, most of these cases have been at the expense of the states.

The first uniform tax case; (s.51) was a concurrent power shared with the states, this in turn gave the commonwealth the right to levy taxation. The high court passed this ruling and therefore the states were no longer given the power to levy their own income taxes. Another relevant case to this topic is the Franklin Dam Case, the commonwealth attempted to use their external affairs power for something that is normally seen as a residual power. The high court approved this and Tasmania was banned from making the Franklin River into a dam as it was changed to a world heritage site through external affairs powers under an international

treaty.
In particular the lack of definition of the division of powers in the constitution has shown a huge shift in power when it comes to the Commonwealth and the states. The states have lost out majorly in cases that the high court have passed in favour of the commonwealth. Various cases over the years have changed the division and impact of law making powers. The high court has been accused of changing the constitution, but they cannot legally change the wording of the constitution they can only interpret the constitution in relation to a case being brought towards them. Bringing a case to the high court is a time consuming and highly expensive process therefore not many cases actually make it this far as they have the final say and final level of power in the Australian political and legal system.
Under section 71 of the constitution the high court is in place to resolve disagreements between the commonwealth and the states.

More specifically their role is a check and balance system, abuses of power by the states or commonwealth and can deem these matters unconstitutional or can pass cases and make new laws or rulings. The balance of power can be affected by the high court as they interpret what they believe they are reading in the constitution and the majority of cases passed have been in favour of the commonwealth power and have been at the expense of the states. An argument in favour of this point has been that because we don’t have a vetting procedure when it comes to appointing high court judges the commonwealth has even more power in this area as they can set up or push for the appointment of a high court judge that they know will sway towards their

powers.
A referendum (s.128) is in place to change the specific wording of the constitution. The process of the referendum is firstly through the parliament, then the people (of Australia) and then it finally ends up with the governor general for final approval. Referendums have been highly unsuccessful and a waste of time in Australia with only a 20% approval rate with issues such as; the timing, voter conservatism and lack of knowledge, lack of bipartisan support and the double majority ruling. Australia has been deemed old fashioned and restrictive with our referendum process and some people wonder if we are in need of a change in order to pass or reject new rulings more efficiently and also to keep in check the balance of powers.