LAWS1115 Relevant Sections of the Constitution

Implied right to political communication

s 7: Senate must be directly elected by the people.
s 24: House of Representatives must be directly elected by the people.

  • The High Court has held that the phrase 'directly chosen by the people…' in these sections mandates a system of 'representative government'. Laws may be struck down for inconsistency with that system: see ACTV (political communication), Roach (voting rights) and McKinlay's Case (electoral boundaries).

Powers of the Federal Parliament

s 51: Lists the specific or ‘enumerated’ legislative powers of the Commonwealth. Most of these powers are formally shared with the States.
s 52: Exclusive power of the Commonwealth to make certain laws.

  • The relevant point is that the Commonwealth doesn't have power to directly legislate on anything not listed here.

s 109: In the event of a conflict, the Commonwealth Act prevails over the State Act to the extent of the inconsistency.


ss 53-56: The Senate cannot initiate legislation, draw money out of a system, or impose taxation.

  • The Executive manages the budget. An issue Graeme has mentioned a few times: executive control of the lower house is weakened with a minority government. Could the opposition pass legislation to suck money from the budget?

s 90: The Commonwealth Parliament has exclusive power over customs, excise and bounties.

  • This contributes to VFI, a bit. Customs was a major source of income in the early days; it's less relevant now, as the income tax is a bigger source of revenue. But, it has prevented the States from implementing consumption taxes (eg. on alcohol, cigarettes). Actually, those State taxes existed for a long time, but were more recently held to be a form of excise, and so not within the power of the States.

s 96 The Commonwealth Parliament may give money to the States on whatever terms and conditions it likes. Known as the 'tied grants' power.

  • This is a Big Deal, you should know it. This power, along with Vertical Fiscal Imbalance, gives the Commonwealth Parliament a great deal of policy-making power in areas where (under s 51) it can't directly legislate.

Double dissolution

s 57: If there is a deadlock, government is entitled to request a double dissolution from the Governor General.

Procedure for Amending the Constitution (Referendum)

s 128

  • A successful referendum requires the approval of a) a majority of all voters; and, b) a majority of voters in each state. An amendment can only originate as a Bill in the Commonwealth Parliament.

The Executive Power

s 61 The Executive Power of the Commonwealth is vested in the Crown.

  • Among other things, this gives the executive the power to spend money on things of 'national importance'. Just how far this power extends is unclear: See Pape's Case, and the beginning of the Week 11 Lecture (carried over from the end of 10).

Probably not so relevant

s 9: Each State Parliament can make laws choosing the senators of the State.

s 16: A Senator should have the same qualifications as a member of the House of Representatives.
s 34: A member of House of Representatives has to be at least 21 years old, entitled to vote, and residing for three years in the Commonwealth.
s 44: Disqualification from parliament.

  • We looked at this briefly in the lecture: is it really a good idea to disqualify bankrupt people and citizens of foreign countries, or are those 'obsessions of an earlier generation' which are now entrenched in our Constitution? Also, the 'office of profit under the Crown' disqualification is a little vague, whereas the States, which have a similar requirement, have been able to clarify exactly what that means: an advantage of a flexible Constitution?