Constitutional

issues
Examination preparation

Three Arms of
Government
These include:
The Parliament
The Executive
The JUDICIARY

Parliament
Section 1 provides that:
The legislative power of the Commonwealth shall be
vested in a Federal Parliament, which shall consist of
the Queen, a Senate, and a House of
Representatives, and which is hereinafter called The
Parliament , or The Parliament of the
Commonwealth .

Parliament
Section indicates that the Parliament consists of a
Senate and a House of Representatives
Section 7 - The Senate shall be composed of
senators for each State, directly chosen by the
people of the State, voting, until the Parliament
otherwise provides, as one electorate.

Parliament
Section 25 provides that the House of
Representatives shall be composed of members
directly chosen by the people of the Commonwealth,
and the number of such members shall be, as nearly
as practicable, twice the number of the senators.

Legislative Powers

Section 51 sets out a number of powers eg

Trade and commerce
Arbitration and conciliation
Taxation
Corporations
Posts and telegraph
Acquisition powers

Legislative Powers
Section 52 grants the Commonwealth Parliament
exclusive powers to seat of government and all
places acquired by the Commonwealth for public
purpose
Other powers are referred to in the constitution
for example
exclusive power over customs, excise, and
bounties

Executive Government
S 61 provides that the executive power of the
Commonwealth is vested in the Queen and is
exercisable by the GovernorGeneral as the
Queen's representative, and extends to the
execution and maintenance of this Constitution,
and of the laws of the Commonwealth

Executive Government
Section 62 provides shall be a Federal Executive
Council to advise the GovernorGeneral in the
government of the Commonwealth, and the
members of the Council shall be chosen and
summoned by the GovernorGeneral.

The Judiciary
Section 71 provides that the judicial power of the
Commonwealth shall be vested in the High Court
of Australia, and in such other federal courts as
the Parliament creates, and in such other courts
as it invests with federal jurisdiction.
The High Court shall consist of a Chief Justice, and
so many other Justices, not less than two, as the
Parliament prescribes.

Judicial power
The Commonwealth Parliament cannot grant
judicial power to non judicial bodies or officers
(Boilermakers case)
The High Court plays an important role in
protecting the constitution and ensuring that
Parliament and the executive act within the scope
of their powers.

The Judiciary
Section 73 provides that the High Court shall have
jurisdiction, with such exceptions and subject to
such regulations as the Parliament prescribes, to
hear and determine appeals from all judgments,
decrees, orders, and sentences:
(i) of any Justice or Justices exercising the original
jurisdiction of the High Court;
(ii) of any other federal court, or court exercising
federal jurisdiction; or of the Supreme Court of
any State

Section 109
Section 109 of the Constitution provides
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.
Section 109 will only operate if the Commonwealth
Parliament has passed a valid law referable its
powers under the Constitution

Section 109
Once an inconsistency occurs, section 109
renders the State law invalid to the extent of the
inconsistency. It does not repeal the State Act
The section operates automatically and neither
the Commonwealth nor State Parliaments can
frustrate the operation of the section
Note a Commonwealth law allows a State law to
continue, but is invalid to the extent of the
inconsistency

Section 109
Cover the field
Alternatively the Commonwealth may pass
legislation which is intended to cover a particular
area to the exclusion of State law - Indirect
inconsistency
This means that any State law that falls within the
legislated area will be rendered inoperative by
s.109.

Section 109
Section 109 inconsistency will not arise where the
Commonwealth and State Law deal with 2
different subject matters. Clarke v Kerr
It is possible that the Commonwealth and State
laws deal with the same subject matter but serve
different purposes and are not inconsistent
licensing laws where on applies generally to
safety,
regularity or efficiency , the other applies
to transport laws

Direct Inconsistency
A direct inconsistency will occur where it is
impossible to obey both laws: R v Brisbane
Licensing Court; Ex parte Daniell (1920) 28 CLT
466
A direct inconsistency will occur when a State Act,
alter, impairs or detracts from the Commonwealth
law, then to that extent the State Act is invalid:
Calvin v Bradley Brothers Pty Ltd

Section 109
When considering this issue
What is section 109
How does the section operate
What is its effect
What is the subject matter that the
Commonwealth law is dealing with
Can both laws be complied with
Does the one law confer a legal right or benefit
and that the other purports to take away or
diminish?
Has Commonwealth enacted the legislation to
cover the field? ie Fair Work Act 2009