Learning Objectives

VCE Legal Studies - Division of Law Making Powers

This video simply outlines and explains the aspect of division of powers in the Australian political and legal system.

Definitions:

Division of Powers is simply the allocation of powers of a nation/state between the three levels of government, for example: Federal; State; and, Local. Each level of government has power over respective areas, such as, the Federal Government having power over immigration whereas the State governments have power over aspects like Education and Health. Local government have control over areas like parks and community centres.

Defining Exclusive Powers is just as it sounds. Exclusive powers are those areas of portfolio that a singular person/entity have, which in our case, the Australian Commonwealth Parliament. These powers are enscribed under section 52 of the Commonwealth Constitution and are authority over defence and immigration. Other examples are section 90 (implementing customs, duties and excise tax).

Concurrent Powers are those powers which are shared by the Federal and State governments - enscribed in section 51 of the Constitution.

Residual Powers (left over) are the law-making powers which were not listed in Constitution at federation and hence given to the states.

Conflicting Legislation:

If the Federal and State Parliament make legislation on the same power, but with a different focus, the Constitution outlines a process as to correct this.

Section 109 of the Constitution governs the resolution of any inconsistencies between Commonwealth and State law, stating that, "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." This simply means that, a State Law (if inconsistent with Federal Law) shall be ruled invalid to the point where it is different from Federal law.