L5:The division of law making powers

Question 1

Separation of powers

Answer 1

A doctrine established by the Australian constitution that ensures the three powers of our legal system remain separate.

Question 2

Division of law-making powers

Answer 2

The distribution of law-making power between the Commonwealth and the six states from federation, as described in the constitution

Question 3

Exclusive powers

Answer 3

Law making powers that only the Commonwealth parliament can exercise

Question 4

e.g. of exclusive power?

Answer 4

defense
currency

Question 5

Concurrent power

Answer 5

Law making powers that are shared between the Commonwealth Parliament and the state parliaments

Question 6

e.g. of Concurrent power?

Answer 6

marriage
taxation

Question 7

Residual powers

Answer 7

Law making powers that are not addressed in the constitution and are therefore retained by the states

Question 7

e.g. of Residual powers

Answer 7

public transport
urban planning

Question 8

Inconsistent Laws

Answer 8

The Commonwealth parliament and the state parliaments pass laws independently. They do not need to confer or discuss legislative policy before introducing and passing legislation. This creates risk of inconsistent laws

Question 9

What can resolve inconsistent laws?

Answer 9

Section 109 of the Australian Constitution

Question 9

How to activate section 109

Answer 9

To enliven s109, it must be determined if there is an inconsistency and invalidate the state law to the extent of any inconsistency an appropriate court must hear a dispute

Question 10

Section 109

Answer 10

Section 109 of the Australian Constitution states that federal law will prevail.

Question 11

e.g. of an appropriate court

Answer 11

High Court of Australia
The Federal court

Question 12

McBain v Victoria
key facts

Answer 12

Dr John McBain denied his patient Lisa Meldrum IVF treatment due to her marital status under the Victorian legislation. However, McBain was also subject to the commonwealth under the sex discrimination act which outlines that a person cannot be denied medical treatment due to their marital status. McBain then commenced proceedings at the Federal court to resolve the issue

Question 13

Decision

Answer 13

Justice Sundberg concluded that the Victorian legislation conflicted with the Commonwealth legislation and was unlawful under section 109 of the Australian constitution

Question 14

Impact of McBain v Victoria

Answer 14

Declared the Victorian legislation to the extent that it was inconsistent with the commonwealth legislation, was invalid.