1. Peter F Hughes © Legal Studies Unit 3 CHAPTER 3 THE CONSTITUTION Part A

2. The Constitution Outcome 2 represents an in depth look at the Constitution. Today the Commonwealth Constitution still defines federal law making powers. The Commonwealth Constitution can be changed today. We analyse its effectiveness in modern issues of human rights.

3. The Constitution The Commonwealth of Australia Constitution Act 1990 (UK) was enacted on January 1 1901 Federation brought our separate colonies together as the problems in Europe caused many Australians concern.

4. Australia’s Federation Ensured the defence of Australia would be done by a combined force. Regulated the people entering Australia with Immigration laws. Created a national industrial dispute mechanism. Regulated imports and protected local producers with Tarriffs.

5. The Commonwealth Constitution The role in Australia To determine the powers and duties of governments. Provides the legal framework for our Commonwealth Parliament. Provides for elections in the House of Reps and the Senate Grants the High Court of Aust. the right to interpret the Constitution.

6. The division Of law making powers Created our federation The states and territories divided their powers with the Commonwealth Parliament. States and Territories kept some law making powers for themselves

7. The division Of law making powers Residual Powers The law making powers left with the states at the time of Federation Specific Powers Commonwealth law making powers at the time of Federation.

8. The division Of law making powers Specific Powers Exclusive – Commonwealth creates laws in these areas. Concurrent – Both the Commonwealth Parliament and the State Parliaments can create laws in these areas.

9. State Power Residual Power Left with the states at Federation and not listed in the Constitution Kept many of their laws in operation. Kept many of their portfolios intact such as Education, Health, Public Transport, Criminal Law (Gaols, police etc)

10. State Power Commonwealth can not make laws in areas of Residual Power. Some states have given the Commonwealth Parliament power in relation to workplace relations. Photo: Arthur Beetson, Queensland Captain, leads out his team in the first ever State of Origin rugby league match.

11. Tied Grants Some grants are given to the states and have a specified usage from the Commonwealth. These have nothing to do with residual powers. Commonwealth is seeking to ensure funds are applied in areas where their policies dictate.

12. The division Of law making powers Specific Powers Can be exclusive or concurrent. The Constitution grants them to the Commonwealth Parliament. ‘To make laws for the peace, order and good government of the Commonwealth.’

13. Specific powers in the Constitution Set out in S51 of the Commonwealth of Australia Constitution Act 1900 In the act they are numbered 1-40 and are called enumerated powers. (legislative powers of parliament) Refer page 92 of the text.

14. Specific powers in the Constitution Exclusive Powers Can only be exercised by the Commonwealth Parliament. Example: s51(xii) Gives the parliament exclusive power to make laws regarding currency, coinage and legal tender. S.115 - Prohibits states from doing this, thus making it exclusive

15. Specific powers in the Constitution Concurrent Powers Concurrent powers are law-making powers that both the states and the commonwealth share, meaning that they both have the power to pass laws in that area of law. Examples include: S.51(xvii) - bankruptcy S.51(xxii) - marriage S.51(ii) - taxation

16. Specific powers in the Constitution Concurrent Powers section 109 states that if there is any inconsistency between the laws made by the commonwealth parliament and the laws made by the state parliaments the commonwealth law shall prevail, and the inconsistent part of the state law shall be invalid.

17. Restrictions of the Constitution on law making powers Restrictions are mainly concerned with protecting the rights of the individuals or of the states. Examples include: S.116 - The commonwealth cannot make any law for establishing, imposing or prohibiting any religion S.117 - The commonwealth cannot give preference to people based on their state of residence