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Constitutional

issues
Examination preparation

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

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

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

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

Legislative Powers • • • • • • • Section 51 sets out a number of powers eg Trade and commerce Arbitration and conciliation Taxation Corporations Posts and telegraph Acquisition powers .

excise.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. and bounties   .

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

and the members of the Council shall be chosen and summoned by the Governor‑General. .Executive Government • Section 62 provides shall be a Federal Executive Council to advise the Governor‑General in the government of the Commonwealth.

and so many other Justices. and in such other federal courts as the Parliament creates. as the Parliament prescribes.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 courts as it invests with federal jurisdiction. . not less than two. • The High Court shall consist of a Chief Justice.

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. .

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

to the extent of the inconsistency.Section 109 • Section 109 of the Constitution provides When a law of a State is inconsistent with a law of the Commonwealth. Section 109 will only operate if the Commonwealth Parliament has passed a valid law – referable its powers under the Constitution . be invalid. and the former shall. the latter shall prevail.

but is invalid to the extent of the inconsistency . 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.Section 109 • Once an inconsistency occurs.

Indirect inconsistency • This means that any State law that falls within the legislated area will be rendered inoperative by s.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 . .109.

Section 109 • Section 109 inconsistency will not arise where the Commonwealth and State Law deal with 2 different subject matters. regularity or efficiency . 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. the other applies to transport laws .

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

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 .