The Division Of Law-making Powers In Australia

Australia’s Federal System is dynamic and the division of lawmaking power between the Commonwealth and State since 1901 has changed dramatically; Critically discuss, focussing on the major reasons for those changes.

On the first of January 1901 Australia became a federation when the Commonwealth of Australia Constitution Act came into force. Since this time, Australia has been a federated country, consisting of a Commonwealth Parliament and six State Parliaments these being Tasmania, Victoria, New South Wales, Western Australia, Queensland and South Australia. The Division of law-making power has changed considerably since 1901.

The Commonwealth of Australia Constitution Act (commonly known as the Constitution) gives the Commonwealth Parliament (also known as the Federal Parliament) specific power to make laws for the peace, order and good government of the Commonwealth.

One of the main reasons for federating was for the purpose of defence, as an invasion from the French or Germans was a very real risk. Australia would be able to protect itself from evasion much more effectively with one unified strong defence force, rather than six weaker defence forces. There were two other major reasons, these being currency and immigration. The gold rushes had already occurred, and there were many Chinese families in Australia. The majority of the public was very racist, and the States felt they needed a Commonwealth Government to restrict immigration. One of the first pieces of legislation passed by the Commonwealth Government was the White Australia Act.

The process of federating Australia was a long and tenuous one. And for many years the states (or colonies as they were known prior to federation) objected to federation, as they could see no reason or purpose. But finally, all states agreed. The states believed it was in their best interest to establish a Federal Parliament, to undertake federal roles, (such as defense, currency and immigration) but at the same time still retain as much law making power as possible.

The Constitution divides lawmaking powers into three, these being exclusive, residual and concurrent powers. Exclusive powers are powers which can only be decided upon only by the Commonwealth Parliament. Concurrent powers are powers which can be decided upon by both the Commonwealth and State Parliaments and residual powers were lawmaking powers which were not mentioned in the Constitution, and were left to the State Parliaments these areas included crime, education, health, environment.

At the time of Federation there were a few major ways in which the States ensured that they would keep sovereign law making power. One way was to make most law making powers (listed under Section 51 of the Constitution) concurrent powers, that is, only a few were exclusive to the Commonwealth Parliament. The Commonwealth Parliament would only prevail if it was valid under Section 51 of the Constitution, and this decision was made by the High Court of Australia. By making most of the powers under section 51 concurrent the States felt they were still retaining these powers.

Another effective way the States retained supreme law making power was to create the Senate in the Federal Parliament. The Senate is a States house with an equal number of representatives from each State, regardless of population, and it can easily veto (reject) any Bill proposed by the Commonwealth Parliament. This was important because even though it was the Commonwealth Parliament, the states could still have a major voice.

In 1942 World War Two was a major issue in Australia. The government was concerned that Australia may be invaded by the Japanese, as Darwin had been bombed, and as a part of their expansionist policy Japan had conquered Irian Jaya, the Philippines and parts of Indonesia and Australia was said to be the next. By the means of an inter-governmental agreement (agreement between the State and Commonwealth Parliaments) the Commonwealth collected income tax to help with the war effort, and this power was to be returned to the States after the war. At the end of the war the Commonwealth refused to return this power to the States, and the dispute was settled in the High Court. The High Court decided that the Commonwealth could continue to collect income taxes. The Commonwealth then distributed grants to the
States, with very strict conditions attached. In simple terms this means the Commonwealth could make decisions on areas that were traditionally the States, such as Education and Health. Gaining financial dominance also meant that the Commonwealth had de facto control over residual areas, as it could determine how much money was to be spent on education etc.

High Court interpretations of the Constitution have also played a vital role in the change of the division of lawmaking power. One example is the Franklin River Dam Case where the Tasmanian Government challenged the Commonwealth Parliament in the High Court over the validity of the World Heritage Properties Preservation Act. The Tasmanian Government planned to dam the Franklin River, yet the Commonwealth Parliament has signed an international treaty on World Heritage Areas, of which the Franklin River was one This created a conflict of interests, and the interpretation of the Constitution was unclear. The High Court decided that the external affairs (section 51 of the Constitution) gave the Commonwealth Parliament the power to make laws to fulfill Australia’s obligations under international treaties.

The decision in this case was seen as greatly expanding the powers of the Commonwealth Parliament, and many people believe that this makes the external affairs power of the Constitution almost unlimited, as Australia has signed many hundreds of international treaties.

Although not often exercised, it is stated in the Constitution that the States can refer powers to the Commonwealth Parliament. There is only a few powers that have been referred to the Commonwealth Parliament. One of these being the referral of the law making power over the custody of children from de facto relationships, that is the custody of children whose parents are not married. These changes to the law do not alter the Constitution but they do extend the power given to the Commonwealth Parliament.

The Senate was the one way in which the States could ensure no law was passed that they objected to: in this sense the Senate has failed. The Senate can veto any law introduced by the House of Representatives but Senators decision is now expected to compliment the views of the political party in which they are a member. Senators are free to decide themselves, but as a unwritten and unspoken rule to do this is political suicide.

Before the High Court can make a decision on whether a matter the States must question the constitutional validity of the legislation. In the past, due to the expense of the court battle, and politics the States have not questioned this validity, and therefore the legislation stands unchallenged.

In the year 2000 the Goods and Services Tax was introduced into Australia, this also may cause a change in the division of power. The revenue raised from the Goods and Services Tax goes directly to the States, and some people have speculated that this could tip the division of lawmaking power back into the favor of the States.

The Political and Legal system in Australia is forever changing. The Founding Fathers could not have foreseen the above changes in the division of law making powers, just as we cannot see changes that may occur in the next hundred years.

Since Federation in 1901 the Commonwealth Parliament has certainly gained many more law making powers. However Many believe that the Constitution has not served its primary service; that being to fulfill national functions, while the states to be the ultimate law making authority.