U4AOS1Topic 2: The division of powers

Division of powers:

1. A system in which power is divided between different levels of government.

In the context of Australia, the division of powers is comprised of three aspects:

1. Exclusive law-making powers.
2. Residual law-making powers.
3. Concurrent law-making powers.

Exclusive law-making powers:

1. Refers to the law-making power that is only exercisable by the Commonwealth Parliament. That is, only the Commonwealth parliament has the authority and power to make laws in these areas.
2. Are explicitly listed in the Constitution.

Examples:

1. Section 51 (iii) gives power to the Commonwealth Parliament to make laws regarding customs and excise. (Section 90 mandates that this power is exclusive to the Commonwealth Parliament)
2. Section 51 (vi) gives power to the Commonwealth Parliament to make laws relating to naval and military forces. (Section 114 mandates that the states shall not raise naval or military forces, thereby resulting in this power being exclusive to the Commonwealth Parliament)
3. Section 51 (xii) gives power to the Commonwealth Parliament over currency, coinage and legal tender. (Section 115 mandates that the states shall not coin money, thereby resulting in this power being exclusive to the Commonwealth Parliament only)

THE ONES ABOVE ARE EXAMPLES WHERE THE POWERS LISTED ARE NOT EXCLUSIVE BY NATURE AND THEREFORE HAVE OTHER SECTIONS OF THE CONSTITUTION TO AFFIRM THEIR EXCLUSIVENESS.

Examples of powers that are exclusive by nature include:

1. Borrowing money on the public credit of the Commonwealth (Section 51 (iv))
2. Naturalisation (becoming an Australian citizen) (Section 51 (xix))
3. Recognition throughout the Commonwealth of state laws and records (Section 51 (xxv))
4. Control of railways for defence purposes (Section 51 (xxxii))
5. Acquisition of state railways with the consent of the state concerned (Section 51 (xxxiiii))

Note:

1. When talking about exclusive law-making powers, note that it is specifically other sections of the constitution that make certain rights in the Constitution that are given to the Commonwealth Parliament, as 'exclusive' . For instance, in section 51 (iii), the power to make laws regarding customs and excise is given to the Commonwealth Parliament. BUT, it is specifically section 90 of the Constitution that explicitly states that this power is exclusive to the Commonwealth Parliament. On the other hand, there are other powers held by the Commonwealth that are exclusive by nature. It is important to recognise this and using it in your answer provides a more precise response.

Residual law-making powers:

1. Refers to law-making powers that belong only to the state parliaments. That is, only the state parliaments have the authority and power to legislate in areas of residual law.
2. Are not listed within the Constitution and are powers that were left with the states at the time of Federation.
3. Have specific sections of the Constitution that help to protect the continuing power of the states to create laws in areas that were not stated to belong to the Commonwealth, or to help preserve state laws (s.106,107 and 109).

Examples:

1. Criminal law.
2. Medical Procedures.
3. Road laws.
4. Education.
5. Public transportation --> Fun fact: in NSW, they use the Opal system which is equivalent to the Myki system in Victoria!

Concurrent law-making powers:

1. Refers to law-making powers that are shared between the state parliaments and the Commonwealth parliaments. That is, both the state and Commonwealth parliament can legislate in concurrent areas of law.
2. Are stated in the Constitution.

Examples:

1. Marriage and divorce.
2. Taxation.
3. Trade.
4. Postal, telegraphic, telephonic and similar services.

Note:

1. Situations may arise in which both the state parliament and Commonwealth parliament create laws that are conflicting in which case the Constitution outlines the necessary processes/procedures to resolve this conflict. (This is covered specifically in the next topic)