Chapter 5 continued

1. Chapter 5 continued Monday 25 March

2. Review of last lesson • How are law-making powers divided between the Commonwealth and the states? • What are the four types of powers? • Specific powers (enumerated powers or heads of power) – specified or listed in the Constitution. Can be exclusive or concurrent. • Exclusive powers can be exercised by the Cth only • Concurrent powers can be exercised by the Cth and the States (Note: section 109) • Residual powers are not specifically mentioned in the Constitution and therefore belong to the States

3. Past Exam Question • Explain how the division of powers under the Australian Constitution enables some laws to be the same all over Australia while other laws are different from state to state. 4 marks • Needs to show an understanding of exclusive powers, concurrent powers (and what happens when there is inconsistency) and residual powers and link them to the question. • Some laws are the same and some different between the states because of the way law-making powers of the states and the Cth are divided by the Constitution.

4. Sample Answer • All of the Commonwealth’s law-making powers are listed in the Constitution and are known as specific powers. There are two types of specific powers, exclusive powers and concurrent powers. An exclusive power is one that belongs only to the Commonwealth, such as currency, and the states have no power to legislate in that area, which explains why some laws are the same all over Australia. • Concurrent powers are shared powers, that is, both the Commonwealth and the states can make laws in these areas, such as taxation, which explains why sometimes there are different Commonwealth and state laws in the same area. Whenever the Commonwealth and the states enact conflicting legislation in an area of concurrent power, section 109 of the Constitution says that the Commonwealth law applies and the state law is invalid to the extent of the conflict. • The power to make laws in all those areas not specifically mentioned in the Constitution belongs to the states, and the Commonwealth has no direct power to legislate in these areas. These powers are known as residual powers, and include areas such as criminal law and transport.

5. Past Exam Question • Explain one way in which the Commonwealth Constitution restricts the Commonwealth’s law-making powers. 2 marks

6. Sample Answer • The Commonwealth Constitution specifically guarantees all people charged with a Commonwealth indictable offence the right to a trial by jury. This means the Commonwealth is prohibited from making any law that attempts to limit this right.

7. Past Exam Question • Distinguish between exclusive and residual powers. 2 marks

8. Sample Answer • There are two features that distinguish exclusive from residual powers. Firstly, exclusive law-making powers like all law making powers of the Commonwealth, are listed in the constitution, whereas residual law making powers are not listed in the Constitution. Secondly, only the Commonwealth Parliament has the authority to legislate in areas of exclusive power, whereas only the states have the authority to legislate in areas of residual power.

9. Past Exam Question • The Marital Status Act 2009 has just been passed by the Victorian Parliament. How could Section 109 of the Commonwealth Constitution affect this law if it were challenged in the courts? • 2 marks

10. Sample Answer • Section 109 of the Constitution states that if both the Commonwealth and a state parliament make a law in an area of concurrent responsibility and there is an inconsistency between them, then the Commonwealth law would prevail to the extent of the inconsistency. If the Marital Status Act 2009 contradicted a similar Commonwealth Act, then those parts of the Marital Status Act that are inconsistent with the Commonwealth would become invalid.