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20 March 2022

In the final part of the introduction to the Australian Parliament, we will explore the legislative powers granted to Parliament by the Constitution. These powers are referred to as the enumerated powers, because they are explicitly granted to Parliament by the Constitution, and are the only matters that Parliament can legislate on. In contrast, the State governments have plenary powers, meaning that they have legislative authority on all matters, except those that are listed in the Constitution as being powers of the federal government, in accordance with Sections 106-108. This was an Australian development based largely on the US federal system. The Commonwealth Parliament can only pass laws that sufficiently fall under the heads of power granted to it by Constitution, meaning the provisions that are discussed in this article.

Section 51 contains the majority of the legislative powers of Parliament. These are known as the concurrent powers of Parliament, as both the Commonwealth and State governments can pass laws on all matters listed in Section 51. However, when there is any inconsistency between Commonwealth and State laws, Section 109 declares the inconsistent State law invalid, “to the extent of the inconsistency,” giving rise to Commonwealth supremacy on Section 51 matters. Prominent powers under this section are the trade and commerce power (i); taxation power (ii); power to borrow money (iv); defence power and federal police power (vi); aliens power (xix); corporations power (xx); marriage, divorce, and custody powers ((xxi) and (xxii)); welfare power ((xxiii) and (xxiiiA)); race power (xxvi); and the external affairs power (xxix). However, Section 51 powers should be read in conjunction with other provisions in the Constitution. For example, Section 51(i) should be read in conjunction with Section 99, which prevents the Commonwealth Parliament from passing “any law or regulation of trade, commerce, or revenue,” which gives preference to one or more States or parts of States. Similarly, the defence power must be read in conjunction with Section 51(xxxii), which grants the Commonwealth control over railways for transporting armed forces;’ Section 114, which prohibits States from creating armed forces with consent of the Commonwealth; and Section 119, which requires the Commonwealth to protect states from “invasion and … domestic violence.” The scope of the defence power and the language of Section 119 has led to much debate, including over the scope of the phrase “domestic violence,” and will be returned to in a later article.

There are several other subsections in Section 51 which deserve attention. Subsections (xxxvi) to (xxxix) differ from the other Section 51 powers, with the first three relating to the relationship between the Commonwealth and the States, and the final referring to government operations. Subsection 51(xxxvi) grants the Commonwealth the authority to legislate on other matters mentioned in the Constitution. When read in conjunction with Section 31, it allows the Parliament to legislate on the electoral process for the House of Representatives, for example. This led to the Commonwealth Electoral Act 1918 (Cth), even though electoral matters aren’t covered under Section 51. Subsection (xxxvii) allows States to refer matters to the Commonwealth, allowing the Federal Parliament to pass laws on that matter; however, any resultant Commonwealth laws only apply to the States who referred the matter, along with any later States that decide to adopt it of their own accord. Subsection (xxxviii) grants the Commonwealth the authority to pass laws, with the consent of the relevant states, on matters previously reserved for the British government. Australia did not have full legislative independence at Federation in 1901, which was overridden by the Statute of Westminster Adoption Act 1942 (Cth), and the powers reserved for the British government were thus vested in the Commonwealth government. Finally, Subsection (xxxix) gave the Commonwealth government power over anything incidental to carrying out the duties of government and the Constitution, matters which were implicit in being a sovereign nation, rather than explicitly named in the Constitution. This is complemented by provisions, especially Section 50, allowing the House of Representatives and Senate to create laws that govern their processes and proceedings, and their salary.

In contrast to Section 51, Section 52 contains exclusive legislative powers of Parliament. These aren’t the only exclusive powers, as Section 119 and other provisions are also exclusive to the Commonwealth government as a whole, but Section 52 refers explicitly to legislative power. Like Section 51, it opens by saying that Parliament can “make laws for the peace, order, and good government of the Commonwealth” in reference to the powers listed in Section 52. Subsection (i), alongside Section 125, grants the Commonwealth power over the federal capital, which would become the Australian Capital Territory, in a similar manner to the USA’s Washington DC. Subsection (ii) allows Parliament to make laws regarding the federal public service. Subsection (iii) grants exclusive legislative authority over all other Constitutional matters declared to be under its exclusive jurisdiction, such as Section 119.

There are various other legislative powers that exist outside of Sections 51, 52, alongside the other provisions that have already been explored. There are two legislative provisions regarding the Executive branch of the government. Section 65 lets Parliament determine the number of Ministers, and Section 66 allows Parliament to determine the salaries of the various Ministers. Similarly, Section 67 gives Parliament the authority to legislate on appointing public servants to the Executive, although this power is held by the Governor-General in Council until then. We shall cover the Governor-General in Council in the next few articles.

Parliament also possesses legislative powers regarding the judiciary. Under Section 71, it can create the High Court of Australia, which was done in the Judiciary Act 1903 (Cth). Section 71 also allows for the creation of other federal courts, with Section 79 granting Parliament the authority to determine how many judges sit on those courts. Section 73 gives the Commonwealth Parliament some authority to determine the appellate jurisdiction of the High Court of Australia, and Section 76 allows it to confer some original jurisdiction to hear matters, in addition to the original jurisdiction conferred upon the High Court of Australia by the Constitution in Section 75. Section 78 grants Parliament the power to legislate on rights granted to bring actions against the Commonwealth or States. Under Section 120, Parliament can make laws regarding the custody of prisoners convicted of Commonwealth offences.

The Commonwealth Parliament has various powers in relation to Chapter IV – Finance and Trade. Section 83 requires all spending of Treasury funds to be made under laws passed by Parliament. We shall revisit this later. Section 85(iii) allows Parliament to compensate the States for any property that the States transfer to the Commonwealth government if the Executive cannot settle on the compensation. Sections 87, 93, and 94 allow Parliament to determine how revenue from customs and tariffs is to be spent, which it has exclusive jurisdiction over, in accordance with Section 90. Section 96 allows Parliament to provide financial assistance to the States, and it also has powers regarding auditing, under Section 97. Section 98 grants Parliament the power to make laws regarding trade and commerce in reference to navigation and shipping, which extends the trade and commerce power of Section 51(i). Section 101 creates an Inter-State Commission to adjudicate trade and commerce disputes between States, with the Inter-State Commission being maintained by Parliament, and Section 103(iii) allows Parliament to set the salary of its members. Section 102 mirrors Section 99, by allowing Parliament to prevent States from preferential laws on trade or commerce. Section 105A allows Parliament to pass laws regulating agreements between the Executive and States, with regard to the public debts of the States.

Section 121 allows Parliament to admit or create new States, while Section 122 allows Parliament to legislate regarding the government of any territories created by States surrendering land to the federal government, as was the case with the Northern Territory and the Australian Capital Territory in 1911. Section 122 also allows for the British government to give the Commonwealth control of territories, which Parliament legislates for. An example of this is Britain giving Australia control over Papua, which was covered in the Papua Act 1905 (Cth), and Britain giving Australia New Guinea as a League of Nations mandate, which was covered in the New Guinea Act 1920 (Cth). States can surrender territory under Section 111. Section 123 allows for Parliament to alter the borders of States, with the consent of the Parliaments of all involved States. Section 124 allows for Parliament to create new States, but with the same conditions as Section 123.

Before discussing the final powers of Parliament, it is important consider what the Constitution prevents the Commonwealth Parliament from legislating on. Sections 106-108 prevent any legislation, except that which is authorised by the Constitution, from interfering with the States, their laws, and their Constitutions. Similarly, Section 118 recognises the “public Acts and records, and judicial proceedings” of the States, in language drawn directly from Article IV, Section 1, of the US Constitution. In addition, although Section 51(i) grants the Commonwealth control over trade and commerce, Section 99 prevents the Commonwealth from showing preference to any States, or parts thereof, while Section 100 requires the Commonwealth to respect the interests of States and their citizens in waterways, when legislating on matters of trade and commerce. Similarly, Section 102 prevents any limitations from being placed on trade and commerce within the Commonwealth by the Commonwealth. The final limitation is Section 116, which is somewhat reminiscent of the USA’s First Amendment, as it prevents the Commonwealth from making any laws regarding religion, with a constitutional right to freedom of and from religion.

The final power of Parliament returns to the issue of ‘supply’ from the previous article. In that article, I explained how government is formed based on control of the House of Representatives because that is where supply bills originate from. These bills are the appropriation bills mentioned in Section 83, and are essential to the operations of government, as they allow the Executive to spend money. Section 53 states that appropriation bills, as well as bills “imposing taxation” can only originate in the House of Representatives, and these cannot be amended by the Senate, with the Senate only allowed to approve or block the passage of these bills. However, it should be noted that Section 53 also acknowledges that a bill is not an appropriation or taxation bill simply because it contains a provision relating to fines, fees, “pecuniary penalties,” and other payments of money.

The Commonwealth Parliament has broad-ranging legislative powers, some of which it holds as exclusive powers. The powers that are not held exclusively by the Commonwealth Parliament are held above those of the State governments, with Section 109 coming into play and striking down any State laws that are inconsistent with federal laws on matters where both levels can legislate.

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Stuart Jeffery, aka LibertyDownUnder, is the founder of the Australian Liberty Network. He is also the host of the Gumtree of Liberty and Gumtree of Liberty Live podcasts, and is editor of the Liberty Review. Stuart is currently studying a Bachelor of Laws and Bachelor of Arts, majoring in international relations, at the University of Southern Queensland.

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