The Commonwealth Parliament has unlimited power to make whatever legislation it chooses


 


            The Australian commonwealth consists of three major types of government, a federation, a parliament democracy and a constitutional monarchy. This government was born due to a call for unification by formerly six British colonies in 1901. These colonies were self-governing, but then agreed to form the commonwealth later on. The commonwealth existed due to the fact that these previous six states initially came upon an agreement which is still in existence today and can be found in the Australian Constitution. This constitution was made and ratified by the people of the colonies during a Constitutional Convention. The Australian government has a unique governing structure which mainly involves the separation of powers and federalism. By separation of powers, one means that the power held by the three are separated into three main branches, each independent from each other and all have separate powers over their jurisdiction ( 2007).


            The constitution of Australia has allocated a federal legislature, which describes the structure of the legislative body of the government, the Australian Parliament.  This section, entitled the Parliament of the Commonwealth, describe its structure. The parliament is a bicameral parliament, consisting of two main branches, the Senate, the House of Representatives and the Queen.  A section of the constitution, section 51, allocates for the government legislative power and the “heads of power”. The government is also given some responsibilities over the state. However, there are some responsibilities left, and these are given to the six independent Australian colonies. Under the constitution, these colonies have become States of the Commonwealth of Australia. Moreover, these colonies have their own constitutions, therefore giving Australia, seven parliaments. These states function independently; therefore, no other State can meddle with the state affairs of the other. However, if any dispute would arise between the states or between the state and the commonwealth, the High Court of Australia would come in to arbitrate these disputes (2006).  


            Australian government’s separation of power follows the Westminster system. However, it is evident that the separation of powers is somehow influenced by the American style of government.  These bodies have different functions and, as the heading suggests, are independent from each other to a certain extent.


Section 109 of the Australian Constitution states 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 statement means that the state law yields to the commonwealth law. The state law will be invalid when it clashes with the commonwealth law. But this does not necessarily mean that the State law will be forever invalid, it will still remain valid.


Section 51 of the constitution states that the commonwealth parliament is granted legislative powers by virtue of the constitution. Section 51 is subdivided into 39 sub sections, each section describing the responsibilities each parliament has jurisdiction over. This section cane into being because, as mentioned, the commonwealth is made up of the six independent colonies which joined together as a federation in 1901. Because of this, they gave up some of their state powers to the commonwealth. However, the legislative power of the parliament is very limited. The scope of its power is limited to what the constitution states. Therefore, there are still powers not covered by the parliament. These powers are called residual powers and are held by the six states. But if the constitution grants these powers to the Parliament, then of course, they can no longer be attributed to the states. Again, with reference to section 109 of the constitution, if the states draft any legislation for any matter stated in section 51 but is not consistent with the commonwealth legislation, these legislations are therefore deemed invalid and ineffective. Furthermore, section 51, subsection 29 of the Australian constitution, covers the power of the Australian Parliament to legislate any matter which are considered “external”.  This section gives rise to the power of Australia’s obligations with international affairs.  An example of the enactment of this law was with the Polyukhovich v Commonwealth (War Crimes Act Case) of 1991. Holding the fact the War crimes in Europe were done physically external to Australia, therefore, Australia had the right to prosecute these war crimes (1998).


 


 


 


 


 



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