Lesson 5 - The division of law-making powers

Question 1

What are the three divisions of law-making powers?

Answer 1

1. Exclusive powers
2. Concurrent powers
3. Residual powers

Question 2

Exclusive powers

Answer 2

Exclusive powers refers to law-making powers that only the Commonwealth Parliament can exercise. Examples include defense and currency.

Question 3

Concurrent powers

Answer 3

Concurrent powers refer to law-making powers that are shared between the Commonwealth Parliament and the state parliaments. Examples include marriage and taxation.

Question 4

Residual powers

Answer 4

Residual powers refer to law-making powers that are not addressed in the Constitution (i.e. not explicitly mentioned) and are therefore retained by the states. Examples include public transport and urban planning

Question 5

McBain case - key facts

Answer 5

• Dr. John McBain (Melbourne doctor specialising in reproductive technology and a gynaecologist), was consulted by Lisa Meldrum - a single woman wishing to conceive through IVF using donor sperm.
• McBain told Meldrum he was prohibited by Victorian legislation, the Infertility Treatment Act 1995 (Vic), from administering IVF treatment to her because she was single.
• However, Dr McBain was also subject to Commonwealth legislation, the Sex Discrimination Act 1984 (Cth), which outlines that a person must not be denied services such as medical care due to their martial (marriage) status.
• Dr McBain then went on to commence proceedings in the Federal Court to show the inconsistency between the Infertility Treatment Act 1995 (Vic) and the Sex Discrimination Act 1984 (Cth)

Question 6

McBain case - Issue

Answer 6

• Whether or not women are required to be married/ in a de facto (unmarried couple) relationship to qualify for infertility treatment under the Infertility Treatment Act 1995 (Vic) as it conflicts with the Sex Discrimination Act 1984 (Cth)

Question 7

McBain case - Decision

Answer 7

• Justice Sundberg (a judge) concluded that the Victorian legislation conflicted with the Sex Discrimination Act 1984 (Cth) and was unlawful under section 109 of the Australian Constitution. This case holds that women do not have to be married or in a de facto relationship to be eligible for infertility treatment.

Question 8

McBain case - Impact

Answer 8

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

Question 9

How to identify when powers are exclusive?

Answer 9

1. Specific power is given to the commonwealth
2. Section of Constitution that makes the power exclusive (bars (prohibits) the states)

Question 10

Division of law-making power

Answer 10

Division of law-making powers refers to the distribution of law-making (legislative) power between the Commonwealth and the six states from Federation, as described in the Constitution.

Question 11

What key words must be written when asked a question about inconsistent laws?

Answer 11

to the extent of the of the inconsistency