BULAW1503 Commercial Law

Constitution is a document containing set of rules by which a country is run. The Constitution outlines three main separate groups. These three groups are the arms of government that include the Executive, the Legislative, and the Judiciary. The constitution also defines the roles of each arm of government. Therefore, this paper intends to discuss the separation of powers as outlined in the constitution and the reason why the balance of power has shifted to favor Commonwealth since federation. 

Division of Powers under the Constitution

The constitution gives the powers of law making to the Commonwealth Parliament where it outlines the division of powers. The division of powers is the use of a Constitution to allocate law making powers between the Commonwealth and State governments. It brings together four sections, which include authorities such as the specific powers, concurrent powers, exclusive powers, and residual powers.  The specific powers are the authorities awarded to the Commonwealth to enable it to make laws. The specific powers are sequentially listed under Sections 51 and 52 of the Constitution. These powers have been provided to the commonwealth to make laws for good governance, peace, and order. Additionally, exclusive powers are laws making authorities given specifically to the Commonwealth. These set of laws making powers only authorizes the Commonwealth to make laws, but prohibits the States (Turner, 2015). Exclusive powers include areas of the national concern, for example, the department of defense, immigration, and currency. Consequently, concurrent powers are the non-exclusive law making powers given to commonwealth and are also shared with the States. They are referred as concurrent powers because both the States and the Commonwealth have been given powers to make laws in these areas. The areas include bankruptcy, divorce, and marriage. However, if the State makes a law that interferes with the Commonwealth’s laws, the Common law will be regarded superior to that of States as stated under Section 109 of the Constitution (Turner, 2015). Lastly, Residual powers are some law making powers that the colonies wanted to retain at the time of federation. These powers give some nations the authority to make laws based on their needs.

Balance of Power Shifted to Favor the Commonwealth

The reason why the balance of power shifted to support the Commonwealth from the time when federation was made is because the High Court that was appointed to protect federalism has been ruling cases based on the Commonwealth doctrines. Some of the cases where the High Court has ruled according Commonwealth regulations include the Engineers’ Case, NSW v Commonwealth (2006), and the Tasmanian Dams Case among others. The High Court decisions in these cases has expanded the scope of the powers of the Commonwealth laws, and together with Section 109, reduced State regulation powers (Chordia & Lynch, 2014). The decisions in these cases have been wrong because the Constitution structure does not warranty the centralization of power. They have also been inappropriate because such decisions abolish the benefits of federalism. The other reason is the use of referrals schemes by the High Court. Referral schemes comes into being when the States refers power to the Commonwealth as stated under Section 51(xxxvii) by the use of text. The States may use referral schemes to enact laws that allows them to hand matters to the Commonwealth.  Moreover, the principles and decisions made in The Engineers’ Case have enabled the Commonwealth regulations to encroach into areas that would have been subjected to the State powers (Chordia & Lynch, 2014).

To conclude with the High Court has a role of interpreting the Constitution and to adjudicate any dispute in relation to the division of power in clear and responsible way. Doing so will help in safeguarding States laws from being overridden by the Commonwealth legislation powers.

References

Turner, R 2015, ‘The High Court of Australia and political science: A revised historiography and new research agenda’, Australian Journal of Political Science, vol. 50, no. 2, pp. 347–364.

Chordia, S & Lynch, A 2014, ‘Federalism in Australian Constitutional Interpretation: Signs of Reinvigoration?’, University of Queensland Law Journal, vol. 33, no. 1, pp. 83–107.