The Constitution of Australia is the supreme law under which the government of the Commonwealth of Australia operates, including its relationship to the States of Australia. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia, which is referred to as the "Constitution" in the remainder of this article. The Constitution was approved in a series of referendums held over 1898–1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Imp), an Act of the Parliament of the United Kingdom.
The Commonwealth of Australia Constitution Act 1900 (Imp) became law on 9 July 1900, and entered into force on 1 January 1901. Even though the Constitution was originally given legal force by an Act of the United Kingdom parliament, the Australia Act 1986 removed the power of the United Kingdom parliament to change the Constitution as in force in Australia, and the Constitution can now only be changed in accordance with the prescribed referendum procedures in Section 128.
Other pieces of legislation have constitutional significance for Australia. These are the Statute of Westminster, as adopted by the Commonwealth in the Statute of Westminster Adoption Act 1942 (retroactive to 1939), and the Australia Act 1986, which was passed in equivalent forms by the United Kingdom Parliament and the Australian Federal Parliament (using legislative powers conferred by enabling acts passed by the Parliaments of every Australian state). The Statute of Westminster Adoption Act is often regarded as the point at which Australia became de jure an independent nation, while the Australia Act severed almost all remaining constitutional links between Australia and the United Kingdom. The remaining exception is that whoever is the monarch of the United Kingdom is also the monarch of Australia, although today this person, currently Queen Elizabeth II, acts in a distinct capacity as monarch of each.
|Commonwealth of Australia Constitution Act|
|Long title||An act to constitute the Commonwealth of Australia|
|Citation||1900 chapter 12: 63 and 64 Vict|
|Royal assent||9 July 1900|
|Commencement||1 January 1901|
The history of the Constitution of Australia began with moves towards federation in the 19th century, which culminated in the federation of the Australian colonies to form the Commonwealth of Australia in 1901. However, the Constitution has continued to develop since then, with two laws having particularly significant impact on the constitutional status of the nation.
In the mid-19th century, a desire to facilitate co-operation on matters of mutual interest, especially intercolonial tariffs, led to proposals to unite the separate British colonies in Australia under a single federation. However, impetus mostly came from Britain and there was only lacklustre local support. The smaller colonies feared domination by the larger ones; Victoria and New South Wales disagreed over the ideology of protectionism; the then-recent American Civil War also hampered the case for federalism. These difficulties led to the failure of several attempts to bring about federation in the 1850s and 1860s.
By the 1880s, fear of the growing presence of the Germans and the French in the Pacific, coupled with a growing Australian identity, created the opportunity for establishing the first inter-colonial body, the Federal Council of Australasia, established in 1889. The Federal Council could legislate on certain subjects, but did not have a permanent secretariat, an executive, or independent source of revenue. The absence of New South Wales, the largest colony, also diminished its representative value.
Henry Parkes, the Premier of New South Wales, was instrumental in pushing for a series of conferences in the 1890s to discuss federalism – one in Melbourne in 1890, and another (the National Australasian Convention) in Sydney in 1891, attended by colonial leaders. By the 1891 conference, significant momentum had been built for the federalist cause, and discussion turned to the proper system of government for a federal state. Under the guidance of Sir Samuel Griffith, a draft constitution was drawn up. However, these meetings lacked popular support. Furthermore, the draft constitution sidestepped certain important issues, such as tariff policy. The draft of 1891 was submitted to colonial parliaments but lapsed in New South Wales, after which the other colonies were unwilling to proceed.
In 1895, the six premiers of the Australian colonies agreed to establish a new Convention by popular vote. The Convention met over the course of a year from 1897 to 1898. The meetings produced a new draft which contained substantially the same principles of government as the 1891 draft, but with added provisions for responsible government. To ensure popular support, the draft was presented to the electors of each colony. After one failed attempt, an amended draft was submitted to the electors of each colony except Western Australia. After ratification by the five colonies, the Bill was presented to the British Imperial Parliament with an Address requesting Queen Victoria to enact the Bill.
Before the Bill was passed, however, one final change was made by the imperial government, upon lobbying by the Chief Justices of the colonies, so that the right to appeal from the High Court to the Privy Council on constitutional matters concerning the limits of the powers of the Commonwealth or States could not be curtailed by parliament. Finally, the Commonwealth of Australia Constitution Act was passed by the British Parliament in 1900. Western Australia finally agreed to join the Commonwealth in time for it to be an original member of the Commonwealth of Australia, which was officially established on 1 January 1901.
In 1988, the original copy of the Commonwealth of Australia Constitution Act 1900 from the Public Record Office in London was lent to Australia for the purposes of the Australian Bicentenary. The Australian government requested permission to keep the copy, the British parliament agreed by passing the Australian Constitution (Public Record Copy) Act 1990 and the copy was given to the National Archives of Australia.
Although Federation is often regarded as the moment of "independence" of Australia from Britain, legally the Commonwealth was a creation of the British Parliament, through the Commonwealth of Australia Constitution Act 1900 (Imp), which applied to Australia by paramount force. As a result, since Australia was still legally a self-governing colony of the United Kingdom, there was continued uncertainty as to the applicability of British Imperial laws to the Commonwealth. This was resolved by the Statute of Westminster 1931, adopted by the Commonwealth via the Statute of Westminster Adoption Act 1942. The Statute of Westminster freed the Dominions, including the Commonwealth, from Imperial restrictions and removed nearly all of the British Parliament's remaining authority to legislate for the Dominions. The Adoption Act backdated Australia's adoption of the Statute of Westminster to 1939, when Australia entered World War II. Legally, this is often regarded as the moment Australia became a de jure sovereign nation.
However, due to specific exemptions in the Statute of Westminster, Imperial law continued to be paramount in Australian states. This was altered by the Australia Act 1986, which was passed in substantially the same form by the Commonwealth parliament and the British parliament, at the request of each state. In addition to ending the British Parliament's power to legislate over Australian states, the Australia Act also cut the last avenues of appeal from the Australian courts to the Judicial Committee of the Privy Council. As a symbol of the significance of this legislation, Queen Elizabeth II travelled to Australia to personally sign the proclamation of the law.
For the Constitution, the impact of these two laws is that the Constitution as in force in Australia is now separate from the text in the original Act. While the British Parliament can amend or repeal the Imperial Act, that would not affect Australia. Instead, the Constitution as in force in Australia can only be amended following the referendum mechanisms set out in the Constitution. Conversely, any amendment to the Constitution in Australia following the referendum mechanisms would not affect the text of the Imperial Act as in force in the United Kingdom.
The Commonwealth of Australia Constitution Act 1900 (Imp) contains a Preamble, and nine sections. Sections 1 – 8 are covering clauses outlining the legal procedures for the establishment of the Commonwealth. Section 9, beginning with the words "The Constitution of the Commonwealth shall be as follows ...", contains the Constitution of the Commonwealth of Australia. The Constitution itself is divided into eight chapters, containing 128 sections. The legislative, executive, and judicial powers are separately stated in the Constitution, in Chapters I, II and III respectively.
Chapter I sets up the legislative branch of government, the Parliament of Australia, which consists of three constituent parts: The Sovereign (King or Queen), who is represented by the Governor-General of Australia; the Senate; and the House of Representatives. Section 1 provides that legislative power is vested in this Parliament, which has paramount power of governance.
Part II of this chapter deals with the Senate. Senators are to be "directly chosen by the people of the State", voting as a single electorate. Each Original State is to have the same number of senators. Currently, there are 12 senators for each State, and 2 each for the mainland territories, the Northern Territory and the Australian Capital Territory.
Part III deals with the House of Representatives. As nearly as practicable, Section 24 requires the House to be composed of twice as many members as the Senate, each elected by a single electorate. This is the so-called 'Nexus', which is designed to prevent swamping of the senate's power in the case of a joint sitting (see Section 57 below). The number of electorates in a State is to be (roughly) proportional to its share of the national population.
Part IV ("Both Houses of the Parliament") deals with eligibility for voting and election to the parliament, parliamentary allowances, parliamentary rules and related matters.
Part V deals with the powers of the parliament. Section 51 deals with powers of the Commonwealth parliament and are called "specific powers". These contain "concurrent powers", in the sense that both the Commonwealth and States can legislate on these subjects, although federal law prevails in the case of inconsistency (Section 109). Of the thirty-nine elements of section 51, a few have become critical in determining the scope of Commonwealth government action, including the Trade and Commerce Power, the Corporations Power and the External Affairs Power. Section 52 deals with powers exclusively vested in the Commonwealth parliament. States cannot legislate on these subjects.
Chapter II sets up the executive branch of government. Executive powers are exercised by the Governor-General, advised by the Federal Executive Council. Under this Chapter, the Governor-General is the commander in chief, and may appoint and dismiss the members of the Executive Council, ministers of state, and all officers of the executive government. These powers, along with the powers to dissolve (or refuse to dissolve) parliament (Section 5, Section 57), are termed "reserve powers", and their use is dictated by convention. Generally, the Governor-General acts only on the advice of the Prime Minister. One notable instance of the Governor-General acting outside the advice of the Prime Minister of the day, when Governor-General Sir John Kerr, acting on his own authority, dismissed Prime Minister Gough Whitlam in the 1975 Australian constitutional crisis.
Queen of Australia are extremely limited, and most powers are only exercisable by the Governor-General.even the formal powers of the
Section 68 states that the command of Australia's naval and military forces is vested in the Governor-General as the Queen's representative. This role, however, is only formal (such as the commissioning of officers) and ceremonial; actual control of the armed forces rests with the government.
Chapter III sets up the judicial branch of government; its provisions create the federal judicature and define the way it operates. Section 71 vests judicial power in a "Federal Supreme Court" to be called the High Court of Australia, and such other federal courts as Parliament creates, and in such other courts as Parliament invests with federal jurisdiction. Such courts are called "Chapter III Courts" and are the only courts that can exercise federal judicial power. Sections 73 and 75–78 outline the original and appellate jurisdiction of the High Court. Section 74 provides for the circumstances in which an appeal can be made to the Queen in Council. Section 79 allows Parliament to prescribe the number of judges able to exercise federal jurisdiction and section 80 guarantees trial by jury for indictable offences against the Commonwealth.
Chapter IV deals with finance and trade in the federal system. Section 81 prescribes that all Commonwealth revenue shall form the Consolidated Revenue Fund. Parliament can make laws as to the appropriations of money (Section 53). Unlike most other powers of the parliament, laws made under the appropriations power are not ordinarily susceptible to effective legal challenge. Section 90 gives the Commonwealth exclusive power over duties of custom and excise.
Section 92 provides that "trade, commerce, and intercourse among the States shall be absolutely free". The precise meaning of this phrase is the subject of a considerable body of law. Some of the most recent case law has emphasised that Section 92 is preoccupied with the effect of law on interstate trade, not on the effect law has on individual traders.
Section 96 gives the Commonwealth power to make grants to States "on such terms and conditions as the Parliament thinks fit". This power has been held to be unconstrained by any other provision, such as Section 99 which forbids giving preference to one State or part thereof over another State or part thereof. It is subject only to Section 116, freedom of religion, and possibly other such freedoms. This power, although evidently envisaged as a temporary measure ("during a period of ten years ... and thereafter until the Parliament otherwise provides"), has been used by the Commonwealth to encourage co-operation by the States to various extents over the years.
Section 101 sets up an Inter-State Commission, a body which is now defunct, but which was originally envisaged to have a significant role in the federal structure.
Chapter V contains provisions dealing with the States and their role under the federal system. Sections 106–108 preserves the Constitution, powers of the Parliament, and the laws in force of each of the States.
Section 109 provides that, where a State law is inconsistent with a federal law, the federal law prevails (to the extent of the inconsistency).
Section 111 provides that a State can surrender any part of the State to the Commonwealth. This has occurred on several occasions, most notably the surrender by South Australia to the Commonwealth of the Northern Territory.
Section 114 forbids any State from raising a military force, and also forbids the State or the Commonwealth from taxing each other's property.
Section 116 establishes what is often called "freedom of religion", by forbidding the Commonwealth from making any law for the establishment of a religion, imposing any religious observance, or prohibiting the exercise of a religion, or religious discrimination for public office.
Chapter VI allows for the establishment or admission of new states. Section 122 allows the Parliament to provide for the representation in Parliament of any territory surrendered by the States, or placed by the Queen in the authority of the Commonwealth. Section 123 requires that changing the boundaries of a State requires the consent of the Parliament of that State and approval by referendum in that State.
No new states have been admitted to the Commonwealth since federation.
Chapter VII contains three quite different provisions. Section 125 provides that the seat of government of the Commonwealth would be in Melbourne for the time being, but eventually in Commonwealth territory, to be created within New South Wales but no less than one hundred miles (160 km) from Sydney. The national capital would thus be neither of the rival State capitals Sydney and Melbourne, but within a federal territory. In 1911 New South Wales ceded to the Commonwealth what is now the Australian Capital Territory and Canberra, built within it, was declared the national capital in 1913. Section 126 permits the Governor-General to appoint deputies. Section 127 provided that "aboriginal natives" were not to be included in any Commonwealth, State or other count of population. This excluded the Indigenous population from affecting the distribution between the States of seats in the House of Representatives (section 24). Section 127 was removed by referendum in 1967.
Chapter VIII specifies the procedures for amending the Constitution. Section 128 provides that constitutional amendments must be approved by a referendum. Amendment requires:
The Governor-General must put the bill to a referendum between two and six months after it has been passed by the parliament. If the bill is approved in the referendum, it receives the Royal Assent and becomes law, so that the wording of the Constitution is changed.
An exception to this process is if the bill is approved by only one house of the parliament—the other house rejecting it, failing to pass it or passing it with amendments to which the first house does not agree. (Ordinarily, the bill would have been introduced in the House of Representatives; the problem would be disagreement by the Senate.) Then, after three months, the first house may pass the bill again. If the other house still does not agree with the bill, then the Governor-General may put the bill to a referendum in the form in which it was passed by the first house, with any amendments to which the two houses may nevertheless have agreed.
Section 128 also provides that an amendment that would reduce the representation of a State in either house, or its minimum representation in the House of Representatives, or that would alter the boundaries of a State or make any similar change to the State, can be presented for Royal Assent only if it has been approved in that State.
A mechanism for the conduct of a referendum is provided by federal statute: Referendum (Machinery Provisions) Act 1984 (Cth). As with elections, voting is compulsory.
The Schedule sets out the wording of the oath and the affirmation of allegiance. The Governor-General and members of parliament are required to make a solemn undertaking of allegiance, by oath or affirmation as prescribed by the Constitution. In addition, when taking office, the Governor-General is required to take an oath of office, currently:
I, (name), do swear that I will well and truly serve Her Majesty Queen Elizabeth the Second, Her heirs and successors according to law, in the office of Governor-General of the Commonwealth of Australia, and I will do right to all manner of people after the laws and usages of the Commonwealth of Australia, without fear or favour, affection or ill will. So help me God!
The oath or affirmation of office made by a prime minister, ministers and parliamentary secretaries when entering office is in wording that is not prescribed in the Constitution but determined by the prime minister of the day, and administered to them by the Governor-General. While there is no legal requirement for this, it has been the practice from the inauguration of the Commonwealth in 1901.
As mentioned above, amendment of the Constitution requires a referendum in which the proposed amendment is approved by a majority in each of a majority of the States, as well as nationally.
Forty-four proposals to amend the Constitution have been voted on at referendums, of which eight have been approved. The following is a list of amendments which have been approved.
Alongside the text of the Constitution, the Statute of Westminster and the Australia Acts, and letters patent issued by the Crown, conventions are an important aspect of the Constitution, which have evolved over the decades and define how various constitutional mechanisms operate in practice.
Conventions play a powerful role in the operation of the Australian constitution because of its set-up and operation as a Westminster system of responsible government. Some notable conventions include:
However, because conventions are not textually based, their existence and practice are open to debate. Real or alleged violation of convention has often led to political controversy. The most extreme case was the Australian constitutional crisis of 1975, in which the operation of conventions was seriously tested. The ensuing constitutional crisis was resolved dramatically when the Governor-General Sir John Kerr dismissed the Labor Prime Minister Gough Whitlam, appointing Liberal opposition leader Malcolm Fraser as caretaker Prime Minister pending the 1975 general election. A number of conventions were said to be broken during this episode. These include:
In line with the common law tradition in Australia, the law on the interpretation and application of the Constitution has developed largely through judgments by the High Court of Australia in various cases. In a number of seminal cases, the High Court has developed several doctrines which underlie the interpretation of the Australian Constitution. Some examples include:
The vast majority of constitutional cases before the High Court deal with characterisation: whether new laws fall within a permissible head of power granted to the Commonwealth government by the Constitution.
The Australian Constitution does not include a Bill of Rights. Some delegates to the 1898 Constitutional Convention favoured a section similar to the Bill of Rights of the United States Constitution, but the majority felt that the traditional rights and freedoms of British subjects were sufficiently guaranteed by the Parliamentary system and independent judiciary which the Constitution would create. As a result, the Australian Constitution has often been criticised for its scant protection of rights and freedoms.
Some express rights were, however, included:
There are also some guaranteed freedoms, reasons why legislation that might otherwise be within power may nonetheless be invalid. These are not rights of individuals, but limitations upon legislative power. However, where legislation that would adversely affect an individual is found to be invalid for such a reason, the effect for the individual is similar to vindicating a right of that individual. There is one express "freedom".
There is also one implied right that is agreed upon by a majority judgment of the High Court. An implied right is one that is not written explicitly into the wording of the Constitution, but that the High Court has found to be implied by reading two or more sections together. The implied right of freedom of political communication is discussed below.
In addition to individual rights explicitly written into the Constitution and found to be implied by sections within it there is a final category of rights known as 'structural protections'. Rather than being individual rights, these are broad protections for the community as a whole, taken from the systems and principles created by and underpinning the text and structure of the Constitution as a whole. One of the more well-known of these protections is the community right to a democratically elected parliament, commonly thought of as a limited "right" to vote, which is discussed below.
The following are implied rights or freedoms:
Attempts in High Court cases to find further implied rights or freedoms have not been successful. Implication of a freedom of association and a freedom of assembly, independently or linked to that of political communication, has received occasional judicial support but not from a majority in any case.
The term head of state does not appear in the Australian constitution. It is conventionally acknowledged to be the Queen, since the governor-general and the state governors are defined as her "representatives". However, since the governor-general is given important constitutional powers, the governor-general is often referred to as head of state in political and media discussion, such as by former prime ministers Malcolm Turnbull and Kevin Rudd.
Amongst the amendments proposed to the Constitution over the years, two proposals for major change have been prominent in recent decades, and both were considered, and defeated, in the 1999 referendum.
While a pro forma preamble prefaces the Imperial Commonwealth of Australia Constitution Act 1900, the Australian Constitution itself does not contain a preamble. There have been some calls for the insertion of such a section to express the spirit and aspirations embodied in the constitution. However, there has been fierce opposition, usually on the basis of the content of the preamble, as well as possible legal ramifications of this text. In 1999, a proposed preamble, principally authored by John Howard, the then Prime Minister, was defeated in a referendum held concurrently with the Republic referendum. The "Yes" vote (in favour of the insertion of the preamble) did not achieve a majority in any of the six states.
At various times since Federation, debates have occurred over whether Australia should become a republic. On 6 November 1999, Australians rejected a proposal to remove the Queen and replace the Governor-General with a President appointed by a two-thirds majority of the members of the Commonwealth Parliament.
Constitution Day is celebrated on 9 July, the date the Constitution became law in 1900. The date is not a public holiday. Constitution Day was first held on 9 July 2000 to mark the centenary of the Constitution in the lead up to the Centenary of Federation, although commemorations were low key and were not widely held after 2001. Constitution Day was revived in 2007 and is jointly organised by the National Archives of Australia, which holds the original Constitution documents, and the Department of Immigration and Citizenship.
This page is about casual vacancies in the Australian Parliament.
For other instances of the term "casual vacancy", see Casual vacancy (disambiguation).In the Parliament of Australia, a casual vacancy arises when a member of either the Senate or the House of Representatives:
is expelled from Parliament and their seat is declared vacant,
is absent from (fails to attend) the house, without the permission of the house, for two consecutive months of a session, or
is disqualified.Chapter III Court
In Australian constitutional law, Chapter III Courts are courts of law which are a part of the Australian federal judiciary and thus are able to discharge Commonwealth judicial power. They are so named because the prescribed features of these courts are contained in Chapter III of the Australian Constitution.Chapter II of the Constitution of Australia
Chapter II of the Constitution of Australia establishes the executive branch of the Government of Australia. It provides for the exercise of executive power by the Governor-General advised by a Federal Executive Council.Chapter I of the Constitution of Australia
Chapter I of the Constitution of Australia establishes the Parliament of Australia and its role as the legislative branch of the Government of Australia. The chapter consists of 60 sections which are organised into 5 parts.Chapter VIII of the Constitution of Australia
Chapter VIII of the Constitution of Australia provides the method for altering the Constitution. It contains only one section, section 128, which sets out the requirements for constitutional referendums by which the words of the Constitution may be altered.High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the states, and the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.
The High Court is mandated by section 71 of the Constitution, which vests in it the judicial power of the Commonwealth of Australia. The Court was constituted by, and its first members were appointed under, the Judiciary Act 1903. It now operates under sections 71 to 75 of the Constitution, the Judiciary Act, and the High Court of Australia Act 1979. It is composed of seven Justices: the Chief Justice of Australia, currently Susan Kiefel, and six other Justices. They are appointed by the Governor-General of Australia on the advice of the federal government, and under the constitution must retire at age 70.
The High Court has had a permanent home in Canberra since 1979. The majority of its sittings are held in the High Court building, which is situated in the Parliamentary Triangle overlooking Lake Burley Griffin. With an increasing utilisation of video links, sittings are also often held in the state capitals.Section 118 of the Constitution of Australia
Section 118 is a crucial element of the Constitution of Australia, as it provides for the validity of state laws, legal entities and court judgments within a federal Commonwealth, and thereby allows the Commonwealth of Australia itself to function.Section 124 of the Constitution of Australia
Section 124 of the Constitution of Australia provides a constitutional provision for creating new Australian States.Section 127 of the Constitution of Australia
Section 127 of the Constitution of Australia was the final section within Chapter VII (dealing with miscellaneous matters), and mandated the exclusion of Aboriginal Australians from population counts conducted for electoral purposes. It came into effect on 1 January 1901 when the founding states federated into the Commonwealth of Australia, and was repealed effective 10 August 1967 following the 1967 referendum.Section 1 of the Constitution of Australia
Section 1 of the Constitution of Australia recites that the power to make laws of the Commonwealth of Australia will be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives.Section 39 of the Constitution of Australia
Section 39 of the Constitution of Australia provides that the quorum of the Australian House of Representatives shall be one third of the total number of members, until the Parliament otherwise provides.
During the Convention debates in Adelaide, Joseph Carruthers suggested that one third was too high and suggested that a quorum of twenty would be sufficient, but his suggestion was rejected.With the passage of the House of Representatives (Quorum) Act 1989, the Parliament has changed the quorum to one fifth of the total number of members, which with the current House of Representatives size of 150 means that at least 30 members are required for a quorum.Section 41 of the Constitution of Australia
Section 41 of the Australian Constitution is a provision of the Constitution of Australia which states that "no adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth."Section 43 of the Constitution of Australia
Section 43 of the Constitution of Australia prevents a person from being a member of both houses of the Parliament of Australia. Section 43 states:
A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House.
In Sykes v Cleary, the High Court stated (in obiter) that the words "shall be incapable of being chosen" must refer to the process of being chosen such that a member of one house must resign their seat before even contesting an election for the other house.
There have been numerous people who have served in both the Senate and the House of Representatives, most notably John Gorton who was appointed Prime Minister, while still a member of the Australian Senate, following the disappearance of Harold Holt in December 1967. In accordance with section 43 of the Constitution, Gorton resigned his seat in the Senate to contest Holt's now vacant and ultra-safe seat of Higgins at the subsequent by-election. Gorton maintained his office as Prime Minister under section 64 of the Constitution.Section 51(i) of the Constitution of Australia
Section 51(i) of the Australian Constitution enables the Parliament of Australia to make laws about:
Trade and commerce with other countries, and among the States;The meaning of trade and commerce is clarified in section 98 of the Constitution which provides
The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State.Section 51(xii) of the Constitution of Australia
Section 51 (xii) is a subsection of Section 51 of the Constitution of Australia that gives the Commonwealth Parliament the right to legislate with respect to “currency, coinage, and legal tender.”
Generally, powers in section 51 of the Constitution of Australia can also be legislated on by the states, although Commonwealth law will prevail in cases of inconsistency. However, the currency power must be read in conjunction with other parts of the Constitution of Australia. Section 115 of the Constitution establishes “a state shall not coin money, nor make anything but gold or silver coin a legal tender in the payment of debts”. This section effectively makes the concurrent power in section 51(xii) exclusive to the Commonwealth.
Despite this, coins of the Australian pound were not introduced until 1910, when the Australian Notes Act 1910 was enacted. From 1901 to 1910 the states could not issue tender and the Commonwealth had not issued tender, so private currency was used as the common medium of exchange whilst the British pound sterling was the national unit of account.Section 51(xx) of the Constitution of Australia
Section 51(xx) of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the power to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". This power has become known as "the corporations power", the extent of which has been the subject of numerous judicial cases.Section 51(xxx) of the Constitution of Australia
Section 51(xxx) of the Constitution of Australia grants the Commonwealth the power to make laws with respect to "the relations of the Commonwealth with the islands of the Pacific".Section 51 of the Constitution of Australia
Section 51 of the Constitution of Australia grants legislative powers to the Australian (Commonwealth) Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth Parliament. There are 39 subsections to section 51, each of which describes a "head of power" under which the Parliament has the power to make laws.
The Commonwealth legislative power is limited to that granted in the Constitution. Powers not included in section 51 are considered "residual powers", and remain the domain of the states, unless there is another grant of constitutional power (e.g. Section 52 and Section 90 prescribe additional powers). Matters covered in section 51 may be legislated on by the states, but the legislation will be ineffective if inconsistent with or in a field 'covered by' Commonwealth legislation (by virtue of s109 inconsistency provision).Section 96 of the Constitution of Australia
Section 96 of the Constitution of Australia authorises the Australian (Commonwealth) Parliament to grant financial assistance to any state on the terms and conditions that it sees fit, subject to acceptance by the state(s) concerned. The expanded use of the power under section 96 has added to Australia's vertical fiscal imbalance and enabled the Commonwealth to have a significant influence over matters that would otherwise be constitutionally State responsibilities.
Constitution of Australia