Like many countries in the world, Australia is a federation; it has more than one tier of government. In this nail-biting episode, the Two Steves explain how our system came about, with the former colonies being given all legislative powers except to the extent that those powers were given and exercised by the Commonwealth. The territories and local government are further tiers, which seems quite enough for a country of 25 million people.
What can be a baffling year-long unit in a law degree, is explained succinctly by your hosts in 10 minutes! We move from the defence of the realm to the collection of our garbage.
TRANSCRIPT
In Episode 3 we looked at where our law comes from. We spoke about the difference between judge-made law – the common law – and laws made by parliaments – statute law.
Stephen Bottomley
In Australia, as in countries such as Canada and the United States, there are legislatures at the Federal (or Commonwealth) level and at the State or Territory level, and so there are two sources of statute law.
Stephen Parker
Laws made by a State or Territory legislature apply to people living within that jurisdiction, but not elsewhere. Laws made by the Federal Parliament apply right across Australia. Someone who lives in, say, the state of Victoria is subject both to statutes made by the Victorian Parliament, and by the Federal Parliament.
Stephen Bottomley
Just before we go any further, what’s the difference between a State and a Territory in Australia?
Stephen Parker
A State has its own Constitution that gives it the power to make laws. It is, strictly, a realm of the Crown and has a state Governor, the representative of the Crown, who gives the Royal Assent to bills passed by the state legislature.
In Australia, the two Territories – the Northern Territory and the Australian Capital Territory – do not have constitutions; they are creatures of the Federal Parliament.
Stephen Bottomley
Section 122 of the Australian Constitution says the Commonwealth may make laws for a territory. However, the Commonwealth has passed laws that give both the Territories power to make their own laws – although the Commonwealth can still override a Territory law, which they occasionally do or threaten to do.
Stephen Parker
So how is the law-making responsibility divided up? Which laws are made Federally, and which at the State or Territory level?
Stephen Bottomley
You might think that Federal laws would deal with matters of national importance, such as defence or foreign affairs, as well as topics that apply to residents of all States, such as education or health.
State laws would then focus on things specific to that State, such as tourism, or the management of particular natural resources. But things are not that straightforward.
Stephen Parker
The answer to how Federal and State law-making power is divided up is found in the Australian Constitution, especially in section 51. To explain that, we need to look at a bit of history.
Stephen Bottomley
Before 1 January 1901, Australia consisted only of the six colonies, each making its own laws under its own constitution. By the late 19th century, there was growing pressure to create a national system of government in addition to that of the colonies.
Some of that pressure came from dissatisfaction with trade and commerce barriers that operated between the colonies.
In the 1890s a series of conventions were held with the aim of drafting a national Constitution that would establish the Commonwealth of Australia. Referendums in each colony approved a final draft which was then passed by the British Government. The colonies became States within a new federal system headed by a Commonwealth Government.
Stephen Parker
So, the Australian Constitution is actually a British Act of Parliament, although any remaining powers of the British parliament and legal system were finally ended in the Australia Act 1986.
Stephen Bottomley
Australia is still a constitutional monarchy, not a republic. King Charles III is the King of Australia as well as the King of the United Kingdom. The representative of the sovereign is the Governor-General at federal level, and the state governor at state level.
Stephen Parker
All bills passed by a legislature need the Royal Assent of the Governor-General or State Governor to become law. This is a formality, but a necessary one.
Since Federation, only one Commonwealth bill has been refused Royal Assent, although 14 have been returned to the Parliament with comments from the Governor-General before later being passed.
Stephen Bottomley
In theory, it would have been possible to abolish the colonies and create a single national government. In practice that was never going to happen. The colonies were jealous of their identity, their power, and the income earned from taxes and other levies. The result was a division of power between the States and the new Commonwealth Government.
Stephen Parker
But even on this there were different options. One would have been to follow the Canadian model: the Constitution could give express powers to the States, and anything left over would be dealt with by the Commonwealth.
The other option reverses this, which is the American model: express powers are given to the federal body, and States have the residual powers. The drafters of the Australian Constitution went for the second model.
Stephen Bottomley
And so back to section 51 of the Australian Constitution. As we mentioned in Episode 3 – and as our keen listeners will remember – it contains a list of forty ‘heads of power’ or subject matter over which the Commonwealth Parliament has jurisdiction. There are some other sections that also grant specific legislative powers to the Commonwealth.
Some of the Commonwealth’s powers are exclusive to the Commonwealth (such as currency, or defence). Others are ‘concurrent’ powers, meaning that the States also have power to make laws on that topic, for example, marriage or taxation. But, if a State and the Commonwealth both pass laws on a concurrent topic then the Commonwealth law will prevail.
Stephen Parker
Anything that is not covered by a grant of power in the Constitution (exclusive or concurrent) is left for the States to legislate on – what is called the ‘residual’ law-making power.
Stephen Bottomley
States and the Commonwealth each enforce their own laws using their own departments and agencies, which is why, for example, we have different police forces in each State and at the Federal level.
Stephen Parker
Similarly, you might expect that that one State’s laws would be tried in that State’s court system. That is true for courts at the lower end of the court hierarchy – the Local and District courts.
The situation is different for the Supreme Courts. There is an agreement between the States and the Commonwealth which allows the Supreme Court of one State or Territory to hear cases that arise under the law of another State or Territory. This is called the ‘cross-vesting’ scheme. It also allows the Commonwealth to confer federal jurisdiction on State Courts – but not the reverse, which has been ruled out by the High Court.
Stephen Bottomley
You’d think that having a nice clear list of Commonwealth legislative powers would draw a decisive line between Federal and State law-making power. But – drumroll please- it isn’t that straightforward. In addition to arguments about concurrent powers, there are three other things that can muddy the waters.
Stephen Parker
First, since Federation there have been many legal disputes between the States and the Commonwealth about the meaning of particular words and phrases in s 51. Remember, the States are very careful to guard their power. It is up to the High Court to decide these cases.
The legal scope of these heads of power is always a matter for legal dispute, especially because the High Court is not bound by its own precedents.
Stephen Bottomley
Second, the Commonwealth Government has sometimes used a broadly expressed power, such as its external affairs power in s 51 (xxix), to pass laws on topics that are not specifically included in the s 51 list. How? Australia is party to a number of international treaties which impose obligations on signatory countries to pass laws on matters covered by the treaty.
So, the Commonwealth can pass laws that are appropriate for giving effect to a treaty. In the famous Franklin Dams case in 1983, the High Court held that a Commonwealth law that stopped the construction of a dam on the Franklin River in Tasmania was an ‘external affair’ because Australia was implementing obligations under the World Heritage Convention of 1972.
Stephen Parker
Third, the States can voluntarily give up one or other of their legislative powers to the Commonwealth. This is called a ‘referral of powers’. Our system of corporate law is a product of a referral of power.
Even though s 51 does expressly mention corporations, the High Court has interpreted this head of power very narrowly. After much political wrangling – most of which I think was about the States not wanting the lose the revenue from company fees – the States agreed to refer their power to make corporate law to the Commonwealth government.
Stephen Bottomley
Finally, while most of our legislation comes from States, Territories and the Commonwealth, there is a third tier that operates in many areas – local governments, with the power to make laws over municipal matters such as parking or garbage collection. These laws draw their authority from an Act of the relevant State Parliament.
Stephen Parker
From the defence of the realm to the emptying of our bins. That’s Law in Context.