The Australian Government is run within a federal system, meaning the power is divided between national and state governments. Federalism has helped Australia as it allows the colonies to hold their independence, while also joining them as a nation. The essay will examine the Division of Power, and argue whether they are poorly defined within the Australian Constitution. The essay will begin with a brief definition of the division of powers. The discussion will then continue with a focus on the Australian Constitution section 51. The essay will then conclude by critically evaluating the Division of Powers and whether it is poorly defined within the Australian Constitution. Example will be Employed in the discussion to highlight how the Constitution has been impacted through High Court discussion.
First main idea
The Division of power is the power that separates the Commonwealth Government, the state and territory Government’s around Australia. However, the Division of Powers is defined for the Commonwealth and not the state. In 1901 the states had their own parliaments that passed certain laws and they also had their own courts, Government authorities and department responsibilities (Shapley, L.S. and Shubik, M., 1954). The Division of Powers refers only to the legislature in which the Constitution has specific powers, for instance in section 51 the Head of Powers as it sets out the law-making abilities of Commonwealth Parliament (Saunders, C., 1996). The six states formed a federation in 1901, section 51 of the Australian Constitution gave the Commonwealth ‘head of power’ to make laws on Tax and Trade, Defence, Marriage and divorce and the Census (Saunders, C., 1996). In a case of conflict between the states and the federal government the federal law prevails over the state as the state government power of law making is limited to section 109 stating ‘When a law of the State is inconsistent with the law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.’ (Shapley, L.S. and Shubik, M., 1954).
The division of powers is the law-making powers between the Commonwealth and states. There are four main divisions, the first division is specific powers in which give the Commonwealth authority to make laws regarding peace, order and government (Aph.gov.au, 2017). Exclusive power is the second division which refers to a set of laws that the Commonwealth can legislate on immigration, currency and defence (Aph.gov.au, 2017). Concurrent power is the third division in which law power is shared between the Commonwealth and the States to legislate new laws such as marriage and divorce (Aph.gov.au, 2017). Lastly, residual powers are not found within the constitution, they are State Powers In which they can decide on criminal law, education and health within their own state (Aph.gov.au, 2017).
Australian federalism is a collective of six States and Two Territories united to form the Commonwealth Government. In which the federalism was inspired from the United States and United Kingdom’s Constitution. In 1860 all the Colonies, apart from Western Australia had become self-government by Britain (Windholz, E 2011). Each with their own Constitution, parliament and laws, by the end of the 19th century. The colonists felt a national government was needed to deal with the bigger issues that affected the whole nation, including issues as defence, immigration and trade. To form a federation the states and territories formed a government (Lingard B, 1991). To ensure power was shared between the federal and state governments, the Australian Constitution was formed. The constitution provides the framework for Australian federalism in that it follows section 51, listing the areas in which the Parliament may legislate or exercise jurisdiction. Ensuring not to deprive the States of Authority to legislate to specific areas (Lingard B,1991.)
Second main idea
The High Court is the highest Court in Australia. In which was established in 1901, but did not settle until 1903 following the passage of legislation running the Court. The purpose of the High Court is to understand and apply new laws within Australia. The High Court decides federal challenges including Constitutional laws and hears appeals (Gleeson, M 2003). The High Court has the final say on new laws, including state, federal and common law.
The Constitution established a Commonwealth which consists of two houses, the Senate and the House of Representatives. In saying this the laws can only be passed or changed with the approval of both houses of Government. This is where Section 51 of the Australian Constitution describes the law-making powers of the Commonwealth Government (Tran, C 2011). In which, the relationship between the Federal Government and the States in favour of the Commonwealth has also been influenced by the decisions of the high court. The powers in section 51 are given to the Commonwealth Parliament, but not taken away from the states. The states have a plenary power, which they are granted power to execute new laws with no limitation upon the exercise of power (Corcoran, S 1994). However, they are restrictions on those powers in the Commonwealth Constitution for instance in section 90 and 92 where states can make laws about matters within section 51. The Division only comes into play when the Commonwealth makes a law under one of its section 51 powers as well as a state. This is where section 109 of the Constitution steps in and says the Commonwealth law will prevail. Meaning the state law isn’t cancelled rather it is not applied until the Commonwealth law stops operating (Hsieh, W 2012).
Third main idea
The Engineers case in 1920 (Amalgamated Society of Engineers v Adelaide Steamship Company Limited) seen a record of 844 claims from employers from a range of Australian States. They were calling for increased wages and better condition of employment for union members (David Flint, 2007). Once the claims were refused, they applied to the Commonwealth Court for an industrial dispute under federal conciliations and arbitration law in which are now recognised in section 51 of the constitution (David Flint, 2007). The decision of the engineer’s case in 1920 reflected the old interpretation of the limits the constitution held. Compared to how the Constitution principle is interpreted and developed in response to changing circumstances. Furthermore, the Engineers case implied intergovernmental immunity and concepts from the reserved state power but have since been overturned, permitting Constitution greater primacy (Allan, J 2008). Under the Conciliation and Arbitration power, the High Court of Australian found that the previous interpretation of the Constitution was once based upon vague individual opinion. The Constitution has been seen as plain, as the Constitution was made with knowledge of the combined common law and the statute law (Reinhardt, G &Porter, L 2016). Engineers case held, an important shift towards the Court’s attitude to distribute power between the federal and state governments. The Engineers case also allowed the Commonwealth to assume a dominant position in the Australian Federation (Prince, P & John, T. 2005).
Making laws in regard to taxation is discussed in section 51 of the Constitution as a concurrent power. However, the States have power to make laws to taxation in regard to the power reserved to the Commonwealth by section 90 of the constitution (French, R 2012). In early 19th century there were income taxes for both the states and federal level, in which the constitution had the power to tax both levels of government. Throughout world war II the Government wanted to raise the income tax so they were able to control all the profits themselves. It intended to force states to stop paying taxable income, so the Commonwealth could raise their tax (French Robert, 2012). Due to this in 1942 the High Court ruled the Uniform Tax case 1942, finding that the scheme was constitutional through the Commonwealth powers to deny. It was upheld in section 51 of the constitution to make laws on military defence (French Robert, 2012). The Taxation Institute of Australia is well placed, as the Constitution will continue to play an important part in the law of taxation for many years to come.
The Tasmanian Dam Case in 1983 (Commonwealth v Tasmania) saw the high court consider
whether the Commonwealth legislation to prevent the construction of the Franklin dam by the Tasmanian Government was legal (Lucev T, 2008). The Commonwealth had the power under section 51 of the constitution to stop the dam construction due to obligations under the World Heritage Properties Convention Act 1983 (Lucev T, 2008). Which implemented the international Convention for protection against World Cultural and Natural Heritage in this case. Due to the Tasmanian dam case, external affairs power in section 51 has given Australian government more power to make laws on the issue of environment (Lucev T, 2008,)
Section 51 of the Constitution confers powers on the Commonwealth Parliament to pass legislation with regard to foreign corporations and trading within limits of the Commonwealth (Lucev T, 2008). In 2006 the High Court was challenged by the States and Australian trade unions to federal government’s Work Choices legislation in which was dismissed in a majority decision of 5-2. The states argued that the Work Relations Amendment Act 2005 was constitutionally invalid because it established a national industrial relation scheme under section 51 of the Constitution which allows the commonwealth to make laws ‘with respect to … foreign corporations and trading or financial corporations formed within limit of the Commonwealth (Lucev T, 2008). This was a significant decision because it extended the power of the Commonwealth over policy areas that previously had come within the jurisdiction of state government (Solomon, D. 2007).
The colonies held their constitution and jurisdictions amongst policy’s, as many key decisions were made by the High Court led to power being increased within the Commonwealth. The High Court decision on the Uniform tax case in 1942 provided the Commonwealth the right to impose tax income. During the Commonwealth v Tasmania in 1983, Commonwealth challenged the Tasmanian Government resulting in a decision being made to ground the Franklin dam under section 51 of the constitution as it gave power to laws in the matter due to Australia being a signatory to an international treaty. The most current constitutional challenge was the Workplace Relations Amendment Act 2005, which held the High Court to a 5-2 majority. It deemed the Commonwealth legislation take priority over States in matters relating to corporations (Sheldon, P & Junor, A, 2006).
Conclusion
The Division of Powers has been dynamic in its evolution. Throughout the economic crises, world war II and Workplace amendments the Constitution has adapted to meet the changing need of social, economic and political circumstances. With the High Court deciding that after the Engineer’s case and the ones that followed, the Commonwealth and the State each have the power to pass new laws within their jurisdiction. One thing, however is clear the Division of Powers is not poorly defined it however is poorly written.