Understanding the Australian Legal System
Chapter 2
Understanding the Australian legal system
Chapter 2 | Understanding the Australian legal system
1.
2.
3.
4.
The Australian Constitution
The legislature
The executive
The judiciary
The Australian Constitution
Chapter 2
Understanding the Australian legal system
Structure of the Australian
Constitution
Table 2.1
Federal / State relations
Exclusive powers
Concurrent powers
Residual powers
Federal Parliament only
Federal and State
Parliaments
State Parliaments only
Examples
Customs
Defence
Currency
Territories
Examples
Taxation
Marriage
Banking
External affairs
Examples
Education
Property
Crime
Health
Federal / State relations
•If the Federal Parliament has not legislated in relation to any of the matters listed in s 51, then that matter remains within the regulatory authority of the States.
•If a State parliament has made a law in relation to one of these matters, and the Federal Parliament makes a law in relation to the same matter, then s 109 of the
Australian Constitution provides that the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid.
Federal / State relations
•Exclusive powers – those powers exercised only by the
Federal Parliament.
•Concurrent powers – most of the powers granted to the Federal Parliament under the constitution are concurrent powers with the states.
Federal / State relations
•Generous interpretations of s 51 by the High Court have seen a steady expansion in Federal power at the expense of the States:
– Koowarta v Bjelke-Petersen (1982)
– Commonwealth v Tasmania (1983)
•Residual powers – anything not expressly identified in the constitution is a residual power of the states.
Changing the Constitution
•The proposed amendment must:
– be passed by an absolute majority of both Houses of
Parliament, and
– be put to the Australian voters in the form of a referendum, and passed by:
• a majority of voters, and
• a majority of the States.
•Of the more than 40 attempts to amend
Understanding the Australian legal system
Chapter 2 | Understanding the Australian legal system
1.
2.
3.
4.
The Australian Constitution
The legislature
The executive
The judiciary
The Australian Constitution
Chapter 2
Understanding the Australian legal system
Structure of the Australian
Constitution
Table 2.1
Federal / State relations
Exclusive powers
Concurrent powers
Residual powers
Federal Parliament only
Federal and State
Parliaments
State Parliaments only
Examples
Customs
Defence
Currency
Territories
Examples
Taxation
Marriage
Banking
External affairs
Examples
Education
Property
Crime
Health
Federal / State relations
•If the Federal Parliament has not legislated in relation to any of the matters listed in s 51, then that matter remains within the regulatory authority of the States.
•If a State parliament has made a law in relation to one of these matters, and the Federal Parliament makes a law in relation to the same matter, then s 109 of the
Australian Constitution provides that the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid.
Federal / State relations
•Exclusive powers – those powers exercised only by the
Federal Parliament.
•Concurrent powers – most of the powers granted to the Federal Parliament under the constitution are concurrent powers with the states.
Federal / State relations
•Generous interpretations of s 51 by the High Court have seen a steady expansion in Federal power at the expense of the States:
– Koowarta v Bjelke-Petersen (1982)
– Commonwealth v Tasmania (1983)
•Residual powers – anything not expressly identified in the constitution is a residual power of the states.
Changing the Constitution
•The proposed amendment must:
– be passed by an absolute majority of both Houses of
Parliament, and
– be put to the Australian voters in the form of a referendum, and passed by:
• a majority of voters, and
• a majority of the States.
•Of the more than 40 attempts to amend