Section 51 & 107.

POWERS FOR PARLIAMENTS.
Sections 51, 107 & 108 are similar in so far as they establish the power for Parliaments to make laws.

We need to understand three very important facts.

Fact 1, all Parliaments require authority from somewhere to create laws.

Fact 2, the laws that every Parliament create, are subject to the Commonwealth Constitution.

Fact 3, the Commonwealth Parliament, and the State Parliaments, are restricted by the Constitution. Fact 3 can be somewhat controversial


Constitution Act.
Covering Clause 5.

5  Operation of the Constitution and laws

This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.

Section 51 Commonwealth Constitution.

Section 51  Legislative powers of the Parliament.

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: the 39 subsections.

Section 107 Commonwealth Constitution.

Section 107  Saving of power of State Parliaments.

Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be. 

The Annotated Constitution of the Australian Commonwealth.
Page 346.

And all Laws”.

No difficulty is suggested by the words, “and all laws made by the Parliament of the Commonwealth under the Constitution.” The words “under the Constitution” are words of limitation and qualification. Not all enactments purporting to be laws made by the Parliament are binding; but laws made under, in pursuance of, and within the authority conferred by the Constitution, and those only, are binding on the courts, judges, and people. A law in excess of the authority conferred by the Constitution is no law; it is wholly void and inoperative; it confers no rights, it imposes no duties; it affords no protection.

The Act itself is binding without limitation or qualification because it is passed by the sovereign Parliament (UK), but the laws passed by the Parliament of the Commonwealth, a subordinate Parliament, must be within the limits of the delegation of powers or they will be null and void.

There two further authorities that support the comments made above.

  1. Former Chief Justice Latham’s made the comments in a High Court decision; South Australia v The Commonwealth 1942 (Uniform Tax Case).
    Former Chief Justice Latham’s comments:

    Quote:
    “If either the Commonwealth Parliament or a State Parliament attempts to make a law which is not within its powers, the attempt fails, because the alleged law is unauthorized and is not a law at all”.
    “The courts have declared a statute invalid, sometimes lead to misunderstanding. A pretended law made in excess of power is not and never has been a law at all. Anybody in the country is entitled to disregard it”.

    Unquote.

  2. Former Chief Justice Latham’s comments that he made in the matter cited above was reinforced by Justice Gageler in the matter of State of NSW v Kable (5 June 2013).

Now back to the Annotated Constitution.

To be valid and binding they must be within the domain of jurisdiction mapped out and bounded in express terms, or by necessary implication, in the Constitution itself. What is not so granted to the Parliament of the Commonwealth is denied to it. What is not so granted is either reserved to the States, as expressed in their respective Constitutions, or remains vested but dormant in the people of the Commonwealth.

At the time just before Federation our forefathers were creating the Commonwealth Constitution; and they established that there would be three sets of powers that Parliaments have authority to make laws with respect to.

Those powers are enshrined into the Commonwealth Constitution and are called;

  1. Exclusive powers, as found in section 51 & 107 of the Constitution, that only the Federal Parliament have authority to make laws with respect to, and
  1. Concurrent powers, as found in section 107 of the Constitution, that both the Federal Parliament and the States have authority to make laws with respect to, and
  1. Reserved powers, as found in section 107 of the Constitution, that only the States have authority to make laws with respect to.

1. Exclusive powers; The Commonwealth shall have powers to make laws.

Section 51 Commonwealth Constitution

Section 51  Legislative powers of the Parliament

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

  1. trade and commerce with other countries, and among the States;
  2. taxation; but so as not to discriminate between States or parts of States;
  3. bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth;
  4. borrowing money on the public credit of the Commonwealth;
  5. postal, telegraphic, telephonic, and other like services;
  6. the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;
  7. lighthouses, lightships, beacons and buoys;
  8.  astronomical and meteorological observations;
  9. quarantine;
  10. fisheries in Australian waters beyond territorial limits;
  11. census and statistics;
  12. currency, coinage, and legal tender;
  13. banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money;
  14. insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned;
  15. weights and measures;
  16. bills of exchange and promissory notes;
  17. bankruptcy and insolvency;
  18. copyrights, patents of inventions and designs, and trade marks;
  19. naturalization and aliens;
  20. foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;
  21. marriage;
  22. divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;
  23. invalid and old‑age pensions;

23A.      the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;

  1. the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States;
  2. the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States;
  3. the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws;
  4. immigration and emigration;
  5. the influx of criminals;
  6. external affairs;
  7. the relations of the Commonwealth with the islands of the Pacific;
  8. the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;
  9. the control of railways with respect to transport for the naval and military purposes of the Commonwealth;
  10. the acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State;
  11. railway construction and extension in any State with the consent of that State;
  12. conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State;
  13. matters in respect of which this Constitution makes provision until the Parliament otherwise provides;
  14. matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States,15 but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law;
  15. the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia;
  16. matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.

The Annotated Constitution of the Australian Commonwealth.
Page 935 & 936.

  1. Concurrent powers; the Commonwealth, and the States shall have powers to make laws with respect to.

These concurrent powers are as follows;

  1. Astronomical and meteorological observations.
  2. Banking, other than State banking; also State banking extending beyond the limit of the State concerned, the incorporation of banks, and the issue of paper money.
  3. Bankruptcy and insolvency.
  4. Bills of exchange and promissory notes.
  5. Census and statistics.
  6. Copyrights, patents of inventions and designs, and trade-marks.
  7. Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants.
  8. Foreign corporations, and trading or financial corporations formed within the Commonwealth.
  9.  Immigration and emigration.
  10. Influx of criminals.
  11. Insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned.
  12. Invalid and old-age pensions.
  13. Light-houses, light-ships, beacons and buoys.
  14. Marriage.
  15. Naturalization and aliens.
  16. People of any race, other than the Aboriginal or Torres Strait race in any State or Territory, for whom it is deemed necessary to make special laws.
  17. Quarantine.
  18. Railways, control with respect to transport for naval and military purposes of the Commonwealth.
  19. Railway construction and extension in any State with the consent of that State.
  20. Taxation; but so as not to discriminate between States or parts of States.
  21. Trade and commerce with other countries, and among the States, except that on the imposition of uniform duties of customs the power to impose duties of customs and excise

  

  1. 3. Reserved powers; The States shall have powers to make laws with respect to.

                  The Annotated Constitution of the Australian Commonwealth.
Page.935 & 936.

RESIDUARY LEGISLATIVE POWERS.—The residuary authority left to the Parliament of each State, after the exclusive and concurrent grants to the Federal Parliament, embraces a large mass of constitutional, territorial, municipal, and social powers, including control over:

  1. Agriculture and the cultivation of the soil:
  2. Banking — State banking within the limits of the State:
  3. Borrowing money on the sole credit of the State:
  4. Bounties and aids on mining for gold, silver, or metals:
  5. Bounties and aids on mining for gold, silver, or metals:
  6. Charities—establishment and management of asylums:
  7. Constitution of State: amendment, maintenance and execution of
  8. Corporations—other than foreign corporations and trading or financial corporations:
  9. Courts—civil and criminal, maintenance and organization for the execution of the laws of a State:
  10. Departments of State Governments — regulation of
  11. Education
  12. Factories
  13. Fisheries within the State:
  14. Forests
  15. Friendly Societies
  16. Game
  17. Health – Inspection of goods imported or proposed to be exported in order to detect fraud or prevent the spread of disease:
  18. Insurance — State Insurance within the limits of the State:
  19. Intoxicants—the regulation and prohibition of the manufacture within the State of fermented, distilled, or intoxicating liquids:
  20. Justice—Courts:
  21.  Land—management and sale of public lands within the State:
  22. Licenses—the regulation of the issue of licenses to conduct trade and industrial operations, within the State, such as liquor licenses and auctioneers’ licenses. Subject however to sec. 92:
  23.  Manufactures—see factories:
  24.  Mines and Mining:
  25.  Municipal institutions and local government:
  26. Officers—appointment and payment of public officers of the State:
  27.  Police — regulations, social and sanitary:
  28. Prisons—State prisons and reformatories:
  29. Railways—control and construction of railways within the State, subject to constitutional limitations (see Restricted Powers):
  30. Rivers—subject to constitutional limitations (see Restricted powers)
  31. Shops—subject to constitutional limitations (see Restricted Powers):
  32. Taxation on order to the raising of revenue for State purposes (see Restricted Powers):
  33. Trade and Commerce within the State (see Restricted Powers):
  34. Works—construction and promotion of public works and internal improvements, subject to the constitutional limitations (see Restricted Powers):

RESTRICTED POWERS – Some Legislative powers of the States can only be exercised sub modo— subject to conditions and limitations specified by the Constitution:

  1. Bounties—A State may, with the consent of both Houses of the Federal Parliament, expressed by resolution, grant any aid or bounty on the production or export of goods:
  2. Naval and Military Forces—A State may with the consent of the Federal Parliament raise and maintain naval and military forces:
  3. Railways—A State may construct, use, and control its railways, but subject to Federal control with respect to transport for naval and military purposes of the Commonwealth and subject to the rule that in the use and control of its railways the State may be forbidden to make any preferences or discriminations, which in the judgment of the   make any preferences or discriminations, which in the judgment of the Inter-State Commission are undue and unreasonable, or unjust to any State or Territory:
  4. Rivers—A State and its people have the right to the reasonable use of the waters of rivers within the State for the peoples personal use, conservation or irrigation:
  5. Taxation of Federal property—A State may, with the consent of the Federal Parliament, impose any tax on property of any kind belonging to the Commonwealth:
  6. Taxation—A State may impose taxation so long as it does not conflict with federal taxation, and so long as it does not violate the rule of interstate freedom of trade and commerce. It is forbidden to impose duties of customs and excise after the imposition of uniform duties of customs by the Federal Parliament:

 

 

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