The Division of Law-Making Powers (VCE SSCE Legal Studies): Revision Notes
The Division of Law-Making Powers
Introduction to law-making powers
Law-making powers are the powers or authority given to parliament to make laws in specific areas. In Australia, parliament is the supreme law-making body, meaning it has ultimate authority to make and change laws, provided it acts within its constitutional powers.
Before Federation in 1901, Australia consisted of six separate colonies, each with complete power to make laws for their own residents. When these colonies agreed to federate and become states, they had to redistribute their law-making powers. This redistribution created three categories of law-making powers under the Australian Constitution.
The transition from colonies to states at Federation represents one of the most significant constitutional changes in Australian history. Understanding how law-making powers were redistributed is essential to comprehending how Australia's legal system operates today.
The three types of law-making powers
When the colonies became states at Federation, they:
- Kept some of their powers (residual powers)
- Shared some of their powers with the new Commonwealth Parliament (concurrent powers)
- Handed over some of their powers entirely to the Commonwealth Parliament (exclusive powers)
The Australian Constitution specifies which powers belong to the Commonwealth Parliament and which remain with the states. Most Commonwealth powers are set out in section 51 of the Constitution, referred to as 'heads of power'.
Residual powers
What are residual powers?
Residual powers are law-making powers that were left with the states at Federation. These powers are not listed in the Australian Constitution. The Commonwealth Parliament generally has no authority to make laws in these areas.
Before Federation, the colonies had power to make laws on all areas affecting their territory. At Federation, some powers were given to the Commonwealth, but many remained with the states as residual powers.
Key concept: If a power is NOT mentioned in the Australian Constitution, it automatically remains with the state parliaments as a residual power. This is the fundamental principle of residual powers.
Constitutional protection of residual powers
Three key sections of the Australian Constitution protect the states' continuing power to make laws in areas not given to the Commonwealth:
Section 106 - Saving of Constitutions This section ensures that each state's constitution continues to operate under the new Commonwealth system, subject to the Australian Constitution.
Section 107 - Saving of Power of State Parliaments This is the key section preserving state power. It states that every power the colonies had shall continue, unless the Constitution has:
- Exclusively vested that power in the Commonwealth Parliament, or
- Withdrawn that power from the state parliaments
Section 108 - Saving of State laws This section ensures that existing colonial laws continue in force in the states. State parliaments retain power to alter or repeal these laws until the Commonwealth Parliament makes provision in that area.
Sections 106, 107, and 108 are collectively known as the "saving provisions" because they save or preserve the states' law-making powers. Section 107 is the most important of these, as it directly confirms that states retain all powers not specifically given to the Commonwealth.
Examples of residual powers
Because residual powers are not mentioned in the Constitution, they remain with the states. Key examples include:
Examples of Residual Powers in Action:
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Criminal law - Each state has its own courts, laws establishing crimes and sanctions, and police force
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Education - States control their own education systems and school curricula
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Public transport - States make laws about public transport infrastructure (e.g. Victoria's Melbourne Metro Tunnel and Suburban Rail Loop projects)
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Road laws - Each state creates its own road rules and traffic regulations
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Medical procedures - Including regulation of procedures like in vitro fertilisation (IVF)
This means that laws in these areas can differ between states.
Common pitfall: Students often confuse residual powers with concurrent powers. Remember - residual powers belong ONLY to the states, while concurrent powers are SHARED between Commonwealth and states.
Exclusive powers
What are exclusive powers?
Exclusive powers are powers that can only be exercised by the Commonwealth Parliament. This means the Commonwealth alone can make laws in these areas, and state parliaments cannot.
How powers become exclusive
Powers can be made exclusive in three ways:
Three Pathways to Exclusive Powers:
Understanding how powers become exclusive is crucial. A power can be exclusive through constitutional design (specific sections or section 52), or through practical necessity (exclusive by nature).
1. Made exclusive by specific constitutional sections
Some powers in section 51 are made exclusive by other sections prohibiting states from exercising those powers.
| Power given to Commonwealth | Section making it exclusive |
|---|---|
| Section 51(iii) - Customs and excise | Section 90 - States this power is exclusive to the Commonwealth |
| Section 51(vi) - Naval and military forces | Section 114 - States shall not raise naval or military forces |
| Section 51(xii) - Currency, coinage and legal tender | Section 115 - States shall not coin money |
2. Exclusive by nature
Some powers are exclusive simply because of their nature - it would be impractical or impossible for states to exercise them.
Examples from section 51 include:
- Section 51(iv) - Borrowing money on the public credit of the Commonwealth
- Section 51(xix) - Naturalisation (becoming an Australian citizen)
- Section 51(xxv) - Recognition of state laws and records throughout the Commonwealth
- Section 51(xxxii) - Control of railways for defence purposes
- Section 51(xxxiii) - Acquisition of state railways with state consent
3. Listed in section 52
Section 52 contains a small list of powers that are explicitly stated as exclusive to the Commonwealth Parliament, including:
- The seat of government (Canberra) and places acquired by the Commonwealth for public purposes
- Matters relating to Commonwealth public service departments
- Other matters declared by the Constitution to be exclusive to Parliament
Examples of exclusive powers
Key exclusive powers include:
Examples of Exclusive Powers in Practice:
Defence - The Australian Defence Force, including the army, navy and air force. For example, the deployment of Australian peacekeeping troops to countries like Solomon Islands.
Currency - Printing and coining money. Only the Commonwealth can create Australian currency.
Customs and border protection - Immigration, controls on imports and exports, and border security.
Commonwealth territories
Sections 111 and 122 give the Commonwealth exclusive power over Commonwealth territories, such as the Northern Territory and Australian Capital Territory.
Concurrent powers
What are concurrent powers?
Concurrent powers are law-making powers that both the Commonwealth and state parliaments share. Both levels of government can make laws in these areas.
All powers given to the Commonwealth Parliament that are not exclusive are concurrent powers. This means there are many concurrent powers in the Australian Constitution.
Understanding the scale: Concurrent powers make up the majority of Commonwealth powers. If a power is listed in the Constitution for the Commonwealth but is NOT made exclusive by sections 90, 114, 115, section 52, or by nature, then it is automatically a concurrent power.
Examples of concurrent powers
Examples of Concurrent Powers in Practice:
Trade - Both Commonwealth and state parliaments can make laws regarding trade. However, the Constitution prevents unreasonable limitations on freedom of trade between states.
Taxation - Both levels of government can make taxation laws.
- Commonwealth taxes include income tax and GST (Goods and Services Tax)
- State taxes include stamp duty and payroll tax
Marriage and divorce - Both Commonwealth and state parliaments have power to make laws on marriage and divorce.
Postal, telegraphic, telephonic and similar services - Under section 51(v), both Commonwealth and state parliaments can legislate on communication services. The Commonwealth has used this power since 1901 to manage postal services through government-owned authorities.
Exam technique guidance
When answering exam questions on law-making powers:
For 'identify' or 'define' questions:
- Clearly state which type of power it is
- Provide the technical definition
- Give specific examples
For 'explain' questions:
- Define the power
- Reference relevant constitutional sections
- Explain how the power operates in practice
- Use concrete examples
For 'analyse' or 'evaluate' questions:
- Consider the rationale behind the division of powers
- Examine advantages and disadvantages of the current system
- Discuss potential inconsistencies (e.g. different road rules between states)
- Consider whether the division remains appropriate for modern Australia
Exam preparation reminder: You need to know at least two examples for each type of power (residual, exclusive, and concurrent) for exam purposes. Make sure you can clearly explain how each example demonstrates that type of power.
Remember!
Key Points to Remember:
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Three types of law-making powers: residual (state only), exclusive (Commonwealth only), and concurrent (shared)
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Residual powers are not listed in the Constitution and include criminal law, education, public transport, and road laws
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Exclusive powers can only be exercised by the Commonwealth and include defence, currency, and customs. They are made exclusive by specific sections, by nature, or by section 52
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Concurrent powers are shared by both Commonwealth and states, including trade, taxation, marriage, and postal services
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Key sections to remember: Section 51 (heads of power), Section 52 (exclusive powers), Sections 106-108 (protecting state powers), Sections 90, 114, 115 (making certain powers exclusive)
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The division of powers resulted from Federation when colonies became states and redistributed their law-making authority