(63 & 64 VICTORIA, CHAPTER 12)
An Act to constitute the Commonwealth of Australia.
[9th July 1900]
WHEREAS the people of New South Wales, Victoria, South Australia, Queensland; and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:
And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:
Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:--
1. This Act may be cited as the Commonwealth of Australia Constitution Act. (Short title).
2. The provisions of this Act referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.
3. It shall be lawful for the Queen, with the advice of the Privy Council, to declare by proclamation that, on and after a day therein appointed, not being later than one year after the passing of this Act, the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western Australia, shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia. But the Queen may, at any time after the proclamation, appoint a Governor General for the Commonwealth.
4. The Commonwealth shall be established, and the Constitution Commence of the Commonwealth shall take effect, on and after the day so appointed. But the Parliaments of the several colonies may at any time after the passing of this Act make any such laws, to come into operation on the day so appointed, as they might have made if the Constitution had taken effect at the passing of this Act.
As part of the agreement or compact between the colonies prior to the establishment of the federal system under the Constitution, the States agreed to surrender some of their law making powers to the Commonwealth. Some powers surrendered by the States were to be exercised exclusively by the Commonwealth, while other powers, though given to the Commonwealth were not withdrawn from the states, but could be exercised by the States as well as the Commonwealth (joint powers). However, under the Constitution s109 is most important:
S109: When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
The Commonwealth can only make laws under the powers listed in the Constitution. S51 of the Constitution deals with most (though not all) of the legislative powers of the Commonwealth parliament:
PART V.--POWERS OF THE PARLIAMENT.
s51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the of Commonwealth with respect to:--
(i) Trade and commerce with other countries, and among the States:
(ii) Taxation; but so as not to discriminate between States or parts of States:
(iii) Bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth:
(iv) Borrowing money on the public credit of the Commonwealth:
(v) Postal, telegraphic, telephonic, and other like services:
(vi) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth:
(vii) Lighthouses, lightships, beacons and buoys:
(viii) Astronomical and meteorological observations:
(ix) Quarantine:
(x) Fisheries in Australian waters beyond territorial limits:
(xi) Census and statistics:
(xii) Currency, coinage, and legal tender
(xiii) Banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money:
(xiv) Insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned:
(xv) Weights and measures:
(xvi) Bills of exchange and promissory notes:
(xvii) Bankruptcy and insolvency:
(xviii) Copyrights, patents of inventions and designs, and trade marks:
(xix) Naturalization and aliens:
(xx) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth:
(xxi) Marriage:
(xxii) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants:
( xxiii) Invalid and old age pensions:
(xxiiiA) The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances:
(xxiv) The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States:
(xxv) The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States:
( xxvi) The people of any race for whom it is deemed necessary to make special laws:
(xxvii) Immigration and emigration:
(xxviii) The influx of criminals:
(xxix) External affairs:
(xxx) The relations of the Commonwealth with the islands of the Pacific:
(xxxi) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws:
(xxxii) The control of railways with respect to transport for the naval and military purposes of the Commonwealth:
(xxxiii) The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State:
(xxxiv) Railway construction and extension in any State with the consent of that State:
(xxxv) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State:
(xxxvi) Matters in respect of which this Constitution makes provision until the Parliament otherwise provides:
(xxxvii) Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law:
(xxxviii) The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia:
(xxxix) Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.
SOMETHING TO DO
Examine the above powers in s51. What powers do you think would affect the property professional?
The External Affairs power? Yes. To find the reasons for this - read on!
The other important section concerned with the law making powers of the Commonwealth is s52:
s52. The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to--
(i) The seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes:
(ii) Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth:
(iii) Other matters declared by this Constitution to be within the exclusive power of the Parliament.
Therefore, the Commonwealth is empowered to make laws with respect to specified and limited subject matters and are only valid if intra vires the Constitution, that is, it must fall under one the above heads in s51. This apparent limitation on the power of the Commonwealth is not as restrictive as it may at first appear. For example, the use of the external affairs power which is the power that validates the Racial Discrimination Act 1975 (an act central to the Mabo debate). However, there is some concern in the High Court as to the extent that matters even tenuously related to external affairs, can be used to validate Commonwealth legislation.
The Constitution is Australia's fundamental law, but the various Constitutions of the states are also imperial legislation, which at least in theory, can still be amended by the UK parliament prior to the Australia Acts 1986. A state's constitution can be amended by state parliament (if in the correct form) but the Commonwealth's Constitution can only be amended by way of a referendum as laid down in the Constitution. It has proved very difficult to amend the Constitution as it requires consistent consensus throughout Australia.
CONSTITUTIONAL DISPUTES OVER LEGISLATION
A common feature of the federal system is the challenge by the Commonwealth and State governments to the legislation of the other. Legislation which the High Court rules as invalid because it oversteps the constitutional reach of a particular parliament is described as being ultra vires ( 'beyond the power') as distinct from intra vires ('within the power'). A Commonwealth law can be challenged on 3 grounds:
That the Commonwealth parliament has acted ultra vires. The doctrine of ultra vires (outside the powers) constitutes a useful corrective to administrative excesses and any regulations not within the scope of authority given by the parent act, or failing to meet all of the terms of that Act, may be found by a court to be ultra vires and therefore invalid.
That the statute, whilst otherwise authorised, is forbidden by one of the express or implied prohibitions.
That important procedural requirements involving the making of the statute have not been complied with.
State/territory laws can be challenged on the following grounds:
That the statute falls outside the general State legislative powers. This is largely only a theoretically possible challenge, since the States generally possess power to make laws for the 'peace, welfare/order, good government', and although this appears as though it may be challenged, Australian courts have held that the question of peace, welfare/order, and good government is to be determined by the parliament in question, not the court.
That the statute trespasses into an area of legislative power which is exclusive to the Commonwealth.
That the statute is contrary to an expressed or implied prohibition in the Commonwealth Constitution.
That in the area of concurrent power, the State statute conflicts with a Commonwealth one, and is therefore invalid to the extent of inconsistency under sl09 of the Constitution.
That there has been a failure to comply with an important or special procedural requirement for making the statute.