Division of powers

•   first of Jan 1901. Australia endorsed federalism, uniting separate colonies within Australia to form a union of sovereign states, delegating some of their powers to a central authority, forming Australia.    Federalism impacted how Australia’s federal govt structure became an essential concept in the division of lawmaking powers between the Common wealth and the states.
• Australia’s three levels of govt determine the legislative each govt is responsible for. The three levels are federal, state, local each with legislative jurisdiction. Which is outlined in section 51 of the constitution.
• Federal= Exclusive power- power that can only be exclusively by federal parliament, meaning on federal par can make laws in these areas. E.g., external affairs, post, radio, currency, defence immigration and census.
• States= Residual power- responsible for lawmaking around hospitals, schools, emergency services, roads and public transport.
• Federal + state= Concurrent powers- S51 stipulates the sharing of concurrent powers, and the law making power is shared between the commonwealth and state parliament. If there is a conflict between federal and state law, s109 dictates that the commonwealth shall override any inconsistencies with the state law to the extent of the inconsistency.
• Local= responsible for libraries, parks, community centres/services and waste disposal.  Local govt is not mentioned in the constitution as their powers are delegated to by the representative state parliament.
• Original intention of federation-leave majority of lawmaking powers with states. But DOP changed overtime in favour of commonwealth. Changes in Dop have occurred through referral of powers, referendums and High Court rulings.
• Referral of powers- states have the ability to refer or give up their residual lawmaking powers to federal parliament to then gain jurisdiction over- gives commonwealth the power to legislate in matters referred to them by any or all states.
• In Australian Constitution under s51(xxxvii) outlines what they are and that the law shall extend only to states by whose parliament the matter is referred, or which afterwards adopt the law”
• Process to refer power- requires state to pass a bill specific to that power which the commonwealth must also pass, in order to accept the responsibility.
• Powers are referred when state believes the law will be formulated, executed and applied better by Cth allowing for consistency across the states.
• Tas created an act referring power to Cth

  1. Passing the Legislature of Terrorism (commonwealth power) Act 2002

  2. All sates referred their power to Cth under the Criminal Code Amendment (terrorism) act 2003
• Favourable for Aus to have 1 law on the matter

  As it creates uniformity and is less costly and less time then referendum and HC interpretation
• Strengths of referring power to Cth

  • Cth can make laws that benefit the whole country
  • States can agree to pass laws without all states losing their lawmaking power
  • Creates uniformity and less costly and less time then referendum and HC interpretation
• Weaknesses of referring power to Cth


  • Is at the expense of the states- ROP has contributed to loss of states power rather than cooperation between the two ties of parliament
  • States might be reluctant due to reduction in lawmaking abilities overtime
• Referendum

  Direct democratic method used in DOP. The only way to either add or alter the wording in the Australian Constitution.
• Referendum process (S128)

  1. Stage 1: Proposal of a bill in parliament with wanted changed to constitution, which must pass though both houses of parliament with absolute majority

  2. Stage 2: If successful within 2-6 months, Aus citizens who are eligible to vote, can vote Yes or No. For referendum to pass double majority is needed - majority of yes votes nationwide and majority of yes votes in at least 4 states

  3. Stage 3: Before deemed successful, Governor General receives the proposed change for royal assent
• Total 45 referendums in Australia, only 8 successful, only 4 directly impact DOP to Commonwealth favour
• 1967 Aboriginal and Torres Strait Islander People referendum

  • Put forth to establish if 2 sections in Australian constitution should be amended for discriminating against Aboriginal people
  • Sections: S51(26) that constitution has power to make laws for peace, order and good govt in respect to any race, other then aboriginal race in any state, and S127 that aboriginals are not counted in population data
• Proposal created by Constitution Alteration (Aboriginal ) Bill 1967 (Cth), allowed citizens to vote for the changes. Referendum was passed allowing Commonwealth to legislate regarding Australian Indigenous people as a concurrent power rather than residual - by changing the wording removing 'other then aboriginal race in any state' and completely removing all of s127 - allowing ATSI to be counted in census
• Strengths of referendum process


  • Defined S128 - thorough work made prior to public vote, democratic method of the change, double majority which restricts Commonwealth power to change constitution
• Weaknesses of referendum process


  • Very time consuming and costly e.g., 2023 voice to parliament cost govt $450 million, Lack of public knowledge and seeking to much change with ballot e.g., 1999 referendum which raised 2 diverse issues - whether to become republic and constitutional recognition
• Referendum is not the most effective way to change DOP overtime
• High Court of Australia (HC)

  Highest court of appeal in the Australian judicial system
• High Court of Australia

  • Established under s71 of the Constitution
  • Outlined in s75 of the Constitution to have original jurisdiction over cases involving treaties, foreign representatives, Commonwealth representatives, interstate disputes and legal action
  • s76 allows the HC to hear disputes arising under the Constitution or involving its interpretation
• High Court interpretation


  Has changed the division of powers (DOP) over time
• HC significantly impacted DOP overtime in favour of Cth compared to the states- making most effective method to change DOP. Change impacted by HC approach to interpret the words as seen in the case example by the ability to widen the scope of meaning in the words.- started in the engineers case 1920- applied since handing down of that case. Majority of cases involving HC interpretation have been decided to be in favour of Cth making it the most effective method inf changing DOP overtime. 
• 1901, DOP shifted from states in favour of Cth- HC interpretation most effective method that alters the DOP. States often unwilling to refer powers under s519xxxvii) and only 8 referendums have been successful- only 4 directly  impacting DOP. HC ruled in favour with Cth every time case been brought- based on giving broadest meaning to the constitution. Cth attainted power over states- considered dominant player in Aus lawmaking. Notion the drafters of Constitution didn’t foresee when creating DOP.
• Strengths of High Court (HC)

  • Ability to interpret the wording of the constitution
  • Acting as check against abuse of power
  • Determining whether legislation by parliament is not infringing on Australian rights
  • Keeping constitution relevant within society
• Weaknesses of High Court (HC)

  • Can't change the wording of the constitution, only the way the wording is interpreted
  • Cases must be presented to HC in order for interpretation to be made
  • Expensive, causing reluctance for cases to be taken to HC
• Brislan case 1935. Dispute of being charged under the Wireless Telegraphy Act 1905, which required all owners of a wireless led to hold a broadcasting license. Taken to HC to challenge the validity of the Act, as broadcasting to a wireless set was not referred to nor was it a service in which the term was used in s51(v) of the Constitution.
• Mrs Brislan argued that the Commonwealth acted outside of its lawmaking powers and was not justified in creating legislation through wireless telegraphy, and could not make Mrs Brislan pay for a license.
• The High Court ruled against Mrs Brislan, as s wireless set was considered a ‘like service’ and did align with s51(v) of the Constitution as it was a form of communication, thus the Commonwealth held the power to legislate in that area.
• Significance of Brislan Case

  The case caused a shift in the division of powers as communications shifted from a residual power to a concurrent power, allowing the Commonwealth to increase its power, and later led to the Commonwealth holding legal control over other electronic communications.
• Tas Dam Case. Tas govt wanted to build a dam on Franklin River to provide hydroelectricity. But 1982 area was classed world heritage. TAs gov passed Gordon River Hydroelectricity Development Act 1982 to start construction
• Tas Dam Case

  Nation wide protest made Cth intervene passing World Heritage Properties Conservation Act (Cth) 1983. Incorporated terms of international treaty which listed Franklin river as world heritage. Tas gov challanged act arguing Cth outside lawmaking jurisdiction
• Tas Dam Case

  HC rules in favor of Cth bases off the interpretation of external affairs to include international treaties even if they concern residual areas.
• role of the High Court is to act as a guardian on behalf of the Constitution, establishing what the Constitution means and explaining how it should be interpreted, ensuring that the Constitution is applied and remains relevant to the
• High Court works to prevent the Commonwealth and states from injustices due to governments abusing their power or acting outside their lawmaking jurisdiction and gives further meaning to the legislation