two basic functions of parliament are to legislate
to supervise the
comprises two forms: passing statutes, and overseeing the making of
PARLIAMENT: The legislative powers of the Commonwealth are defined in
two broad ways:
- By the conferment of power (what the Commonwealth
is permitted to do).
- By the
of prohibitions (what the Commonwealth is forbidden to do).
power of the Commonwealth can be extended a number of ways. For
example, the Constitution does not endow the Commonwealth with
specific educational legislative power except for the 'Benefits of
Students' provision in s51 (xxiiiA). However, despite the lack of
specific constitutional powers, the Commonwealth has a considerable
influence over educational policy making, especially by virtue of
financial grants made by the Commonwealth for educational purposes of
various kinds. The power of the “purse strings”!
grants are designated for specific purposes, since the Commonwealth
stipulates how the money shall be spent. In addition, s51(xxxix)
(External Affairs power) potentially endows the Commonwealth with the
formidable power to legislate in a number of areas otherwise outside
Are the reverse of powers, and serve to deprive the Commonwealth of
power to legislate in certain areas. For example, s92 of the
Constitution which ostensibly protects freedom of trade between the
States. However, there are some express
prohibitions in the Constitution which preclude certain sorts of
legislation by the Commonwealth. For example:
The Commonwealth shall not make any law for establishing any
religion, or for imposing any religious observance, or for
prohibiting the free exercise of any religion, and not religious
test shall be required as a qualification for any office or public
trust under the Commonwealth.
section was crucial in the DOGS (Defence of Government Schools) case:
(Vic); ex re Black v Commonwealth (1980)
33 ALR 321 which is the leading case in the history of the State aid
to private schools debate.
PARLIAMENTS: Whereas the majority of the powers of the Commonwealth
parliament are conferred by the Constitution, most of the legislative
powers of the States are in a single section. Commonwealth powers are specific, whereas those of the States are general powers. For example, s5 of the
Constitution Act 1902 (NSW) is a 'power to make laws for the peace
welfare and good government' of the State 'in all cases whatsoever'.
executive consists of two bodies:
are composed of government ministers. Cabinet meetings are where the
government deliberates and comes to agreement about its political
decisions. Having reached such agreement, the cabinet ministers
reconvene as the Executive Council where the Governor (or
Governor General in Commonwealth matters) is formally advised of
the cabinet's decision.
Governor then acts to implement this decision which necessitates the
exercise of the Governor's statutory or prerogative powers. The
administration of government is carried out by the government
departments headed by a Minister as political head, and by a chief
executive officer public servant (for example, the Director General
of Education) as the permanent head.
Are the major source of executive power, and statutes confer
authority on the crown, ministers, public servants, and other
officers. Statutory powers are invariably cast in terms of a duty or
a discretion. With regard to duties, or mandatory powers as they are
also called, the Minister (or such other officer or group) is
actually required to do something. Legislation will mandate that the
Minister shall...'. On the other hand discretionary powers are
indicated by an expression such as: 'The Director General
may...'. However, discretionary powers should not be construed as an
open invitation for an official to act arbitrarily. This is the
province of Administrative Law.
SOMETHING TO DO
Length: 1000 words
operations of a typical real estate agent set up as a company in an
outer suburb of a large city. List 12 important laws that impinge on
his/her day to day running of the business. Which of those laws are
under Commonwealth legislation? For the Commonwealth laws determine
from an examination of s51 of the Constitution, the powers on which