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Title

Ch1 The Parliament and the role of the House / POWERS AND JURISDICTION OF THE HOUSES / Legislative power

Database

House Practice

Date

01-05-2005

Source

House of Reps

Parl No.

41

Chapter

The Parliament and the role of the House

Chapter No.

Chapter 01

Page

16

Section No.

 

System Id

procedural/practcer/chapter01.15.doc


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Ch1 The Parliament and the role of the House / POWERS AND JURISDICTION OF THE HOUSES / Legislative power



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House of Representatives                                Ch 1                                                 p 16

 

The Parliament and the role of the House / POWERS AND JURISDICTION OF THE HOUSES

 

Legislative power

The l egislative function of the Parliament is its most important and time-consuming. The principal legislative powers of the Commonwealth exercised by the Parliament are set out in sections 51 and 52 of the Constitution. However, the legislative powers of these sections cannot be regarded in isolation as other constitutional provisions extend, limit, restrict or qualify their provisions.

The distinction between the sections is that section 52 determines areas within the exclusive jurisdiction of the Parliament, while the effect of section 51 is that the itemised grant of powers includes a mixture of exclusive powers and powers exercised concurrently with the States. For example, some of the powers enumerated in section 51:

  • did not belong to the States prior to 1901 (for example, fisheries in Australian waters beyond territorial limits) and for all intents and purposes may be regarded as exclusive to the Federal Parliament;

  • were State powers wholly vested in the Federal Parliament (for example, bounties on the production or export of goods); or

  • are concurrently exercised by the Federal Parliament and the State Parliaments (for example, taxation, except customs and excise).

    • In keeping with the federal nature of the Constitution, powers in areas of government activity not covered by section 51, or elsewhere by the Constitution, have been regarded as remaining within the jurisdiction of the States, and have been known as the ‘residual powers’ of the States.

    It is not the purpose of this text to detail the complicated nature of the federal legislative power under the Constitution. 1 However, the following points are useful for an understanding of the legislative role of the Parliament:

  • as a general rule, unless a grant of power is expressly exclusive under the Constitution, the powers of the Commonwealth are concurrent with the continuing powers of the States over the same matters;

  • sections, other than sections 51 and 52, grant exclusive power to the Commonwealth—for example, section 86 (customs and excise duties);

  • section 51 operates ‘subject to’ the Constitution—for example, section 51(i) (Trade and Commerce) is subject to the provisions of section 92 (Trade within the Commonwealth to be free);

  • section 51 must be read in conjunction with sections 106, 107, 108 and 109—for example, section 109 prescribes that in the case of any inconsistency between a State law and a Commonwealth law the Commonwealth law shall prevail to the extent of the inconsistency;

  • the Commonwealth has increasingly used section 96 (Financial assistance to States) to extend its legislative competence—for example, in areas such as education, health and transport. This action has been a continuing point of contention and has led to changing concepts of federalism;

  • section 51(xxxvi) recognises Commonwealth jurisdiction over 22 sections of the Constitution which include the provision ‘until the Parliament otherwise provides’—for example, section 29 (electoral matters). Generally they are provisions relating to the parliamentary and executive structure and, in most cases, the Parliament has taken action to alter these provisions; 2

  • section 51(xxxix) provides power to the Parliament to make laws on matters incidental to matters prescribed by the Constitution. This power, frequently and necessarily exercised, has been put to some significant uses—for example, jurisdictional powers and procedure of the High Court, and legislation concerning the operation of the Parliament; 3

  • section 51(xxix) the ‘external affairs power’ has been relied on effectively to extend the reach of the Commonwealth Parliament’s legislative power into areas previously regarded as within the responsibility of the States ( in the Tasmanian Dams Case (1983) the High Court upheld a Commonwealth law enacted to give effect to obligations arising from a treaty entered into by the Federal Government). 4

  • section 51 itself has been altered on two occasions, namely, in 1964 when paragraph (xxiii a ) was inserted and in 1967 when paragraph (xxvi) was altered; 5

  • the Commonwealth has been granted exclusive (as against the States) legislative power in relation to any Territory by section 122, read in conjunction with section 52;

  • the Federal Parliament on the other hand is specifically prohibited from making laws in respect of certain matters—for example, in respect of religion by section 116; and

  • in practice Parliament delegates much of its legislative power to the Executive Government. Acts of Parliament frequently delegate to the Governor-General (that is, the Executive Government) a regulation making power for administrative purposes. However, regulations and other legislative instruments must be laid before Parliament, which exercises ultimate control by means of its power of disallowance. 6


    • Detailed discussion can be found, for example, in Quick and Garran , pp. 508-662; G. Moens and J. Trone, Lumb and Moens’ The Constitution of Australia annotate d , 6th edn, Butterworths, Sydney, 2001, pp. 87-214; W. Anstey Wynes, Legislative, executive and judicial powers in Australia , 5th edn, Law Book Co., Sydney, 1976, Chs. 6 & 7; The Australian Constitution annotated , pp. 45-175; and P. Hanks and D. Cass, Australian constitutional law: material and commentary , 6th edn, Butterworths, 1999.



    Quick and Garran , pp. 647-8.



    Quick and Garran , pp. 651-5.



    Commonwealth v. Tasmania (1983) 158 CLR1.



    Constitution Alteration (Social Services) 1946 (Act No. 81 of 1946); Constitution Alteration (Aboriginals) 1967 (Act No. 55 of 1967).



    See ‘Delegated legislation’ in Ch. on ‘Legislation’.