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- Topic 5 – The Commonwealth Parliament
Topic 5 – The Commonwealth Parliament
- By Student at Law
- Published 23/05/2007
- LPAB 2006-07
- Unrated
5.3 Legislative powers
5.3.1 Enumerated specific powers
* The Commonwealth legislature are set out in s 51 – they are specific powers rather than general ones, although even these specific powers have been expressed with some generality.
* They should be contrasted with the powers of state parliaments which are general rather than specific - this is a product of the desire of the states to remain autonomous.
* The specific powers of the Commonwealth are those which the founders at the time thought were important for the central gov’t to have - few are exclusive to the Commonwealth, rather they are ‘concurrent’ powers in that both states and Commonwealth may legislate in these areas.
* The constitution can restrict some state powers:
- s 90: states cannot make legislation which imposes customs and excise.
- s 114: nor can they raise defence forces without the Commonwealth Parliament’s consent.
* Over the 20th Century, the balance of power between states and Cmlth has gradually shifted to Cmlth.
* States can make legislation about almost anything, where the Commonwealth has a specific power and makes legislation which is inconsistent with state legislation, s 109 of the constitution provides that the state legislation must give way to the extent of the inconsistency.
* s 53 declares that the Senate may not amend “proposed laws imposing taxation”, nor will they originate in the Senate - outlines a notion that the lower house of parliament is to be superior to the upper house in financial legislation. A problem is the omission from s 53 of any expression of the Senate’s power to refuse to pass financial legislation as this section also declares that the Senate has equal power with the House of Reps “in respect of all proposed laws”, except as provided in s 53.
* s 54 and 55 express rules against ‘tacking’, designed to protect the Senate against exploitation of its limited powers over certain categories of financial legislation.
* Whereas all appropriation legislation must originate in the House of Reps after a message of recommendation from the Governor-General (ss 53 and 56), it is only an appropriation bill for the ordinary annual services of the Government which is beyond amendment by the Senate and which must not contain any extraneous matter (ss 53 and 54).
* s 57 authorises the Governor-general to “dissolve the Senate and the House of Reps simultaneously” where the preconditions described by the section have been met and the life of the House of Reps is not due to expire within the next 6 months - In the words of the provision, the preconditions to a double dissolution of House and Senate are:
- if the house of reps passes any proposed law, and
- the senate rejects or fails to pass it, or passes it with amendments to which the House of Reps will not agree, and
- if after an interval of 3 months the House of Reps, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and
- the senate rejects or fails to pass it, or passes it with amendments to which the House of Reps will not agree…
* s 57 is a provision which allows for the passage of legislation on which the two houses are ‘deadlocked’ if the govt of the day is prepared to risk its life in a general election; a provision which has be used once (1974) to achieve the passage of such legislation; and a provision which has more frequently been used by the govt as a means (or an attempted means) of gaining control of the Senate.
5.3.2 Exclusive and concurrent
powers
* s 106 and s 107 confirm existence of the states but make it clear that they are bound by the constitution.
* s 109 outlines that if there is an inconsistency between state and cmlth legislation, state legislation must give way to the extent of the inconsistency.
* When the constitution was drawn up, the intention was to allow the Cmlth Government to control only a few powers like defence, customs, coinage and post and telegraph services - these were called exlclusive powers.
* The Concurrent powers were to be controlled by both the Cmlth and the States with Federal-law overulling State law in cases of disagreement.
* Residual Powers are not in these two groups, were to be left under state control, although there have been few changes.
* There have been several changes in the way the powers are divided and shared - states have given up their powers in some fields to the cmlth, though in many fields the responsibility still rests on the states, the Cmlth’s powers to borrow and tax are leading it to play an increasingly important part.
* One of the main sources of political debate in Australia is this confusion between Federal and State powers: both sides argue about their responsibilities and often blame the other when things go wrong or do not get done.
5.3.3 Inconsistency of Commonwealth and State legislation
* s 109: Where both the Commonwealth and the States enact conflicting legislation in one of these fields, the Cmlth is held to prevail under this section.
* The function of s 109:
- Confirms the legislative supremacy of the Federal Parliament over the State Parliaments with respect to concurrent powers.
- Eliminates conflicts of law that may arise between State and Federal laws operating in the same field.
- Allows the Cmlth to determine whether it might allow State laws to operate in areas that might otherwise be the subject of Federal laws.
- “laws” in s 109 refer to the Acts of State or Federal Parliament.
* Tests of inconsistency applied by the High Court:
- “cover the field” – A federal law evinces an express or implied intention to provide an exhaustive statement over the relevant subject matter
* Direct inconsistency:
- Where it is impossible to simultaneously obey both State and Federal law
- Where one law takes away a right or privilege conferred by another.
* Viskauskas v Niland (1982)
- There is no direct inconsistency between the Commonwealth Act and the NSW Act – it is obviously possible for a person to obey both laws by refraining from committing any act of racial discrimination. However, it is now clearly established that there may be inconsistency within s 109 although it is possible to obey both the State law and the Commonwealth law.
- According to Dixon J. in Victoria v The Commonwealth: “…if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent.”
5.3.1 Enumerated specific powers
* The Commonwealth legislature are set out in s 51 – they are specific powers rather than general ones, although even these specific powers have been expressed with some generality.
* They should be contrasted with the powers of state parliaments which are general rather than specific - this is a product of the desire of the states to remain autonomous.
* The specific powers of the Commonwealth are those which the founders at the time thought were important for the central gov’t to have - few are exclusive to the Commonwealth, rather they are ‘concurrent’ powers in that both states and Commonwealth may legislate in these areas.
* The constitution can restrict some state powers:
- s 90: states cannot make legislation which imposes customs and excise.
- s 114: nor can they raise defence forces without the Commonwealth Parliament’s consent.
* Over the 20th Century, the balance of power between states and Cmlth has gradually shifted to Cmlth.
* States can make legislation about almost anything, where the Commonwealth has a specific power and makes legislation which is inconsistent with state legislation, s 109 of the constitution provides that the state legislation must give way to the extent of the inconsistency.
* s 53 declares that the Senate may not amend “proposed laws imposing taxation”, nor will they originate in the Senate - outlines a notion that the lower house of parliament is to be superior to the upper house in financial legislation. A problem is the omission from s 53 of any expression of the Senate’s power to refuse to pass financial legislation as this section also declares that the Senate has equal power with the House of Reps “in respect of all proposed laws”, except as provided in s 53.
* s 54 and 55 express rules against ‘tacking’, designed to protect the Senate against exploitation of its limited powers over certain categories of financial legislation.
* Whereas all appropriation legislation must originate in the House of Reps after a message of recommendation from the Governor-General (ss 53 and 56), it is only an appropriation bill for the ordinary annual services of the Government which is beyond amendment by the Senate and which must not contain any extraneous matter (ss 53 and 54).
* s 57 authorises the Governor-general to “dissolve the Senate and the House of Reps simultaneously” where the preconditions described by the section have been met and the life of the House of Reps is not due to expire within the next 6 months - In the words of the provision, the preconditions to a double dissolution of House and Senate are:
- if the house of reps passes any proposed law, and
- the senate rejects or fails to pass it, or passes it with amendments to which the House of Reps will not agree, and
- if after an interval of 3 months the House of Reps, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and
- the senate rejects or fails to pass it, or passes it with amendments to which the House of Reps will not agree…
* s 57 is a provision which allows for the passage of legislation on which the two houses are ‘deadlocked’ if the govt of the day is prepared to risk its life in a general election; a provision which has be used once (1974) to achieve the passage of such legislation; and a provision which has more frequently been used by the govt as a means (or an attempted means) of gaining control of the Senate.
5.3.2 Exclusive and concurrent
* s 106 and s 107 confirm existence of the states but make it clear that they are bound by the constitution.
* s 109 outlines that if there is an inconsistency between state and cmlth legislation, state legislation must give way to the extent of the inconsistency.
* When the constitution was drawn up, the intention was to allow the Cmlth Government to control only a few powers like defence, customs, coinage and post and telegraph services - these were called exlclusive powers.
* The Concurrent powers were to be controlled by both the Cmlth and the States with Federal-law overulling State law in cases of disagreement.
* Residual Powers are not in these two groups, were to be left under state control, although there have been few changes.
* There have been several changes in the way the powers are divided and shared - states have given up their powers in some fields to the cmlth, though in many fields the responsibility still rests on the states, the Cmlth’s powers to borrow and tax are leading it to play an increasingly important part.
* One of the main sources of political debate in Australia is this confusion between Federal and State powers: both sides argue about their responsibilities and often blame the other when things go wrong or do not get done.
5.3.3 Inconsistency of Commonwealth and State legislation
* s 109: Where both the Commonwealth and the States enact conflicting legislation in one of these fields, the Cmlth is held to prevail under this section.
* The function of s 109:
- Confirms the legislative supremacy of the Federal Parliament over the State Parliaments with respect to concurrent powers.
- Eliminates conflicts of law that may arise between State and Federal laws operating in the same field.
- Allows the Cmlth to determine whether it might allow State laws to operate in areas that might otherwise be the subject of Federal laws.
- “laws” in s 109 refer to the Acts of State or Federal Parliament.
* Tests of inconsistency applied by the High Court:
- “cover the field” – A federal law evinces an express or implied intention to provide an exhaustive statement over the relevant subject matter
* Direct inconsistency:
- Where it is impossible to simultaneously obey both State and Federal law
- Where one law takes away a right or privilege conferred by another.
* Viskauskas v Niland (1982)
- There is no direct inconsistency between the Commonwealth Act and the NSW Act – it is obviously possible for a person to obey both laws by refraining from committing any act of racial discrimination. However, it is now clearly established that there may be inconsistency within s 109 although it is possible to obey both the State law and the Commonwealth law.
- According to Dixon J. in Victoria v The Commonwealth: “…if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent.”
Continued on page 3