This document discusses the key sources of Australian law, including the Australian Constitution and state constitutions. It outlines how legislative power is divided between the Federal Parliament and state governments. The Constitution established in 1901 divides powers into exclusive Commonwealth powers, residual state powers, and some concurrent areas. The High Court plays an important role in interpreting the Constitution and resolving disputes over which level of government has authority in different policy areas.

1. The
Constitution
Sources of Contemporary
Australian Law

2. 


The Australian
Constitution is the
document that sets
out the structure and
the role of the Federal
Parliament.
It was created in 1900,
when British Parliament
passes the
Commonwealth of
Australia Constitution
Act 1900 (UK), and
came into being in
1901, at Federation.
Each Australian state
also has its own
Constitution.
What do we
remember?

3. 


The power to make
laws in Australia is
divided between
the Federal
Government and
the State
Governments.
Our Coat of Arms
reflects this sharing
of power.
This is not a common
system (only 14
countries worldwide
have this system)
The Federal
Parliamentary System
The idea of Federation was not
popular with all colonial
politicians. Why do you think
this was the case? How do you
think this reluctance to
Federate is shown in our
Constitution?

4. Division of Powers

5.  The
Division of
Legislative
Power
•EXCLUSIVE
•Commonwealth
•RESIDUAL
•State
•CONCURRENT
•Commonwealth
•State
Constitution
divides power to
legislate between
the Federal
Government and
the State
Governments.
There are also
some areas of
overlap.

6. Section 51

Section 51 of the Constitution lists 40 areas over which
the federal Parliament has legislative power. These
include:











trade and commerce
postal and telecommunications services
foreign policy taxation census and statistics
weights and measures
quarantine lighthouses, lightships, beacons and buoys
fisheries
currency
copyright
marriage
immigration
defence

7. Section 52


Section 52 of the Constitution stops state
parliaments from making laws in some areas,
including defence and communication. This
means the federal Parliament has exclusive power
to make laws in these areas.
States are also banned from charging customs
duties, which guarantees free trade within
Australia. The creation of a single Australian
market was a key reason for federation–before
1901 each colony taxed goods imported from the
other colonies, which made trade difficult and
was considered bad for their economies.

8. Exclusive Powers



Held by the Commonwealth Government, only.
Broadly speaking, they are in the areas of trade,
defence and foreign affairs, and also include customs
They are listed in different “sections” of the Constitution,
for example:
 S90: give the commonwealth the power to impose
customs and excise duties
 S114: prohibits the states from raising naval or military
forces
 S115: prohibits the states from minting their own coins

9. Concurrent Powers


Concurrent powers are those powers that can be
exercised by both the states and the
Commonwealth.
Some of these concurrent powers can be found in
s51, including:

Health care



Medicare – Federal
Hospitals – State
Education



Universities – Federal
Schools – State
What about the National Curriculum?!

10.  If
there is a contradiction between the
states and the Federal Government, the
federal laws prevail over the state laws
(s 109).
 Section 109 of the Constitution says:

An inconsistency exists where a state law is in
conflict with a federal law, making it impossible to
obey both laws.

11. Residual Powers


Before Federation, each colony had its own set of
powers, some of which were handed over to the
Commonwealth (s51).
The remaining powers remained with the states
(s108); they are called the residual powers and
only the states can make laws based on these
powers.

12. 
Examples of residual powers can be found in the
areas of:






law and order
commerce and industry
primary production
housing
transport
public health and social welfare issues.

13. Separation of Powers

15. Parliament
Executive
• Makes and
amends the law
• Puts the law into
action
• Made up of the
Queen
(represented by
the GG),
members of the
House of
representatives
and the Senate.
• Powers are
outlined in
Chapter 1 of the
Constitution
(s51)
Judiciary
• Makes
judgements
about law
• Formally known
• Made up of the
as the Federal
High Court and
Executive
other Federal
Council
Courts
• Made up of the • Established
Prime Minister
under s71 of the
and members of
Constitution
the Cabinet.
• Powers are
outlined in
Chapter 2 of the
Constitution

16. Things to consider
1.
2.
Explain why Separation of Powers is
important.
The Australian Separation of Powers is
not actually complete. Where is the area
of overlap, and what problems (if any)
might this pose?

17. The Role of the High Court

18. 

The High Court is the
highest court in the
Australian judicial
system.
It was established at
Federation by s71 of
the Constitution (but
didn’t ‘sit’ for the first
time until 1903)

19.  The



functions of the High Court are to:
interpret and apply the law of Australia;
decide cases of special federal
significance, including ‘constitutional
challenges’ to the validity of laws; and
act the final court of appeal, hearing
appeals from Federal, State and Territory
courts.

20. 

Sometimes the High Court is asked to decide
whether it is the Commonwealth Government or a
state government which has the authority and
responsibility to deal with a matter.
Other times, because the Constitution provides
specific limits to what the Commonwealth
Government is empowered to do, the High Court
may be asked to decide whether a law made by
the Commonwealth Government is within that
power.

21. 
Evolving interpretations of the Constitution by the
High Court have resulted in stronger law-making
powers for the Commonwealth, without any
changes to the words of the Constitution.
Important court cases have included the
Engineers Case (The Amalgamated Society of
Engineers v Adelaide Steamship Co Ltd (1920) 28
CLR 129), the Tasmanian Dam
Case (Commonwealth v Tasmania (1983) 158
CLR1) and Work Choices Case (New South Wales
v Commonwealth (2006) 231 ALR 1).