“The Australian Constitution limits the exercise of powers throughout the Federation through both a division of powers and a separation of powers.”

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“The Australian Constitution limits the exercise of powers throughout the Federation through both a division of powers and a separation of powers.”

Discuss this statement and analyse the ways in which the Constitution

1. Divides power amongst the members of the federation and
2. Creates a separation of Commonwealth powers

Introduction

The Australian Constitution was conceived through the process of Federation in 1901 to unify the states of Australia through one form of decentralised government.1 The Constitution describes a set of principles and fundamental rules that prescribes a division of powers between the Commonwealth and the six member states of the Federation through the Division of Powers Doctrine, and expressly defines a separation of powers between the three arms of government through the Separation of Powers Doctrine. ’The four principles of federalism’ within the Australian Constitution are represented by: a written Constitution; a separation of powers between government branches; an influential Court system; and a distribution of power between the states and the Commonwealth.2

The Constitution was largely built on the common interests of the states to unite in affairs across the country such as freedom of interstate trade and commerce, defence, and uniformity in immigration policy,3 supported through the dual requirements of responsible government and federalism.4 The founders of the constitution believed that by creating a limited form of government that expresses the extent of their powers,5 the bulk of the power would reside within the states implied residual powers thus protecting the states’ integrity. Although it is asserted that the Constitution does limit the powers chiefly through the two previously mentioned doctrines, it is argued that the Constitution only limits these powers to a certain extent.

Division of Powers Doctrine

The division of powers describes the allocation of powers between the six federation members and the Commonwealth in order to retain a balance of powers between all members. Section 51 and 52 of the Australian Constitution expressly prescribes the extent of Commonwealth power where states’ powers are residually implied.6 Although there has been little amendment to the Constitution, the shifting fiscal and political authority and most prominently the interpretation by the High Court provided by s71 of the Constitution since 19207, has eroded the federal balance of power originally intended by the framers of the Constitution, thereby allowing the Commonwealth to prevail over the States.

One of the first illustrations of undermining of the ‘division of powers’ to limit state power is exercised through in the High Court’s judicial interpretation of the Corporations power with regard to the Engineer’s Case.8 The legal issue arising for the arbiters of the Constitution was if the Commonwealth was within their scope of powers to legislate under the Conciliation and Arbitration Act (1904) pursuant to s51(xxxv) of the Constitution. The court concluded that through the broad and taboo method of Constitutional interpretation where the court looked to the plain and ordinary meaning of the text,9 the restrictive doctrines of implied intergovernmental immunities 10, and reserved powers11were no longer applied.12

Creating precedent, the states would now be subject to Commonwealth legislation, if on its true construction applied to them.13 This therefore reinforces s109 of the Constitution14, which may be seen as the origin of the Commonwealth’s consolidation of power.

Conversely, there have been subsequent exceptions placed on the Commonwealth by our “independent arbiters”15 to limit its growing power. This restoration of the states’ balance of power was prominently explored through the State Banking Case16 where the ratio decidendi declared that the Commonwealth must not discriminate against or between states or threaten their existence or capacity...
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