What was the division of power?

Answer 1

In the 1890's the states of Australia each had different forms of government and their own social, economic, and political identities.

After Federation on the 1st of January in 1901, and the creation of the constitution, the major concern was what powers the state would retain and what power the federal government would now have.

To solve this issue, the constitution split the power between the state and Federal Government. This is known as the Division of Power,

The Government and states each have different types of powers including legislative, concurrent, exclusive, and residual powers.

Legislative powers- The federal parliament has the power to make laws with all matters listed in section 51 of the constitution. They are also sometimes referred to the enumerated powers.

Concurrent powers -It is important to realise that the states also make laws in many of the areas that the federal parliament does. This is called concurrent powers and is when power is held by both the federal and state governments. Examples include trade, and tax.

There are areas of the law that only the Federal parliament can exercise and they are called Exclusive powers Some include:

1. The seat of Government of the commonwealth and all places aquired by the commonwealth for public purposes.
2. Any matters relating to any department of the public service
3. Other matters that the constitution sees fit to be controlled by the Commonwealth
4. Customs and excise laws

Finally, there is Residual Powers. That is the remaining powers which belong solely to the state.

The matters are not referred to in the constitution. Each state has its own constitution which enables them to make laws in various areas but excludes any area directly denied to the states by the Australian constitution.

Example:

1. The states' constitutions are not diminished by the creation of the Commonwealth constitution
2. every lawmaking power not exclusively given by the constitution to the commonwealth remains a power of the states
3. Every law that existed in the Colony when it became a state continues to be a valid law of that state unless overruled by s109

The constitutional Division of Powers cannot be changed by parliament but there have been subtle shifts since the 1920's in favour of the Government.

This has happened because of a number of reasons.

1. The High Courts decisions
2. The Senates changed role
3. The Referral of Powers
4. Financial Domination