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§ 447. “Power of the Parliament of a Colony.”

The Parliament of each State is a creation of the Constitution of the State. The Constitution of each State is preserved, and the parliamentary institutions of each State are maintained without any structural alteration, but deprived of power to the extent to which their original legislative authority and jurisdiction has been transferred to the Federal Parliament. In the early history of the Commonwealth the States will not seriously feel the deprivation of legislative power intended by the Constitution, but as Federal legislation becomes more active and extensive the powers contemplated by the Constitution will be gradually withdrawn from the States Parliaments and absorbed by the Federal Parliament. The powers to be so withdrawn may be divided into two classes—“exclusive” and “concurrent.” Exclusive powers are those absolutely withdrawn from the State Parliaments and placed solely within the jurisdiction of the Federal Parliament. Concurrent powers are those which may be exercised by the State Parliaments simultaneously with the Federal Parliament, subject to the condition that, if there is any conflict or repugnancy between the Federal law and the State law relating to the subject, the Federal law prevails, and the State law to the extent of its inconsistency is invalid.

EXCLUSIVE POWERS.—The following are the powers which in the course of time will be absolutely withdrawn from the States:—

  • (1.) Power to make laws with respect to the seat of Government (sec. 52—i.). This power will become exclusive on the acquisition of the territory within which the seat of Government is situated (sec. 125).



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  • (2.) Power to make laws with respect to places acquired by the Commonwealth for public purposes (secs. 52—i. and 122).
  • (3.) Power to make laws with respect to any part of a State surrendered by the State to and accepted by the Commonwealth (sec. 111), or to territory placed by the Queen under the authority of and accepted by the Commonwealth (sec. 122).
  • (4.) Power to make laws with respect to departments of the public service transferred to the Commonwealth (sec. 52—ii.). This power will become exclusive immediately upon the transfer of the departments.
  • (5.) Power to make laws imposing duties of customs and of excise (sec. 90). This power will become exclusive on the imposition of uniform duties of customs.
  • (6.) Power to make laws granting bounties on the production or export of goods (sec. 90). According to the literal words of the Constitution this power does not become exclusive until the imposition of uniform duties of customs.
  • (7.) Power to make laws with respect to the naval and military defence of the Commonwealth and of the States (sec. 51—vi.). This power becomes exclusive on the establishment of the Commonwealth (sec. 114).
  • (8.) Power to make laws with respect to the coinage of money (sec. 51—xii., and sec. 115).
  • (9.) Power to make laws with respect to legal tender in anything but gold and silver coin (sec. 115).

CONCURRENT POWERS.—Of the 39 classes of subjects enumerated in sec. 51, with respect to which the Federal Parliament has power to make laws, 13 are quite new, and are applicable only to the Commonwealth, having been created by the Constitution, and are of such a character that they could only be vested in and effectually exercised by the Federal Parliament; such as: The power to borrow money on the credit of the Commonwealth, fisheries in Australian waters beyond territorial limits, and sub-sections xxiv., xxv., xxix., xxx., xxxi., xxxiii., xxxv., xxxvi., xxxvii., xxxviii., and xxxix. Three of those 39 classes of subjects, viz.:—

  • (1.) Bounties (except aids on mining for gold, silver, or metal)—after the imposition of uniform duties of customs (sec. 90).
  • (2.) Naval and military defence (secs. 51—vi. and 114).
  • (3.) Coinage and legal tender (secs. 51—xii. and 115).

formerly vested in the States — are exclusively within the competence of the Federal Parliament. Trade and Commerce is a concurrent power, but a branch of it, viz., the power to impose duties of customs and excise, becomes exclusively vested in the Federal Parliament on the imposition of uniform duties of customs (sec. 90). This leaves, in the list of 39 subjects, 23 old powers which formerly belonged to the States, but are now concurrently vested in the State Parliaments and the Federal Parliament, subject to the condition imposed by sec. 109. These concurrent powers are as follows:—

  • (1.) Astronomical and meteorological observations (viii.).
  • (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 (xiii.).
  • 3.) Bankruptcy and insolvency (xvii.).
  • (4.) Bills of exchange and promissory notes (xvi.).
  • (5.) Census and statistics (xi.).
  • (6.) Copyrights, patents of inventions and designs, and trade-marks (xviii.).



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  • (7.) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants (xxii.).
  • (8.) Foreign corporations, and trading or financial corporations formed within the Commonwealth (xx.).
  • (9.) Immigration and emigration (xxvii.).
  • (10.) Influx of criminals (xxviii.).
  • (11.) Insurance, other than State insurance; also State insurance extending beyond the limits of tho State concerned (xiv.).
  • (12.) Invalid and old-age pensions (xxiii.).
  • (13.) Light-houses, light-ships, beacons and buoys (vii.).
  • (14.) Marriage (xxi.).
  • (15.) Naturalization and aliens (xix.).
  • (16.) People of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws (xxvi.).
  • (17.) Postal, telegraphic, telephonic, and other like services (v.).
  • (18.) Quarantine (ix.).
  • (19.) Railways, control with respect to transport for naval and military purposes of the Commonwealth (xxxii.).
  • (20.) Railway construction and extension in any State with the consent of that State (xxxiv.).
  • (21.) Taxation; but so as not to discriminate between States or parts of States (ii.).
  • (22.) Trade and commerce with other countries, and among the States (i.); except that on the imposition of uniform duties of customs the power to impose duties of customs and excise becomes exclusively vested in the Federal Parliament (sec. 90).
  • (23.) Weights and measures (xv.).

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:

  • Agriculture and the cultivation of the soil:
  • Banking — State banking within the limits of the State:
  • Borrowing money on the sole credit of the State:
  • Bounties and aids on mining for gold, silver, or metals:
  • Charities—establishment and management of asylums:
  • Constitution of State: amendment, maintenance and execution of
  • Corporations—other than foreign corporations and trading or financial corporations:
  • Courts—civil and criminal, maintenance and organization for the execution of the laws of a State:
  • Departments of State Governments — regulation of
  • Education
  • Factories
  • Fisheries within the State:
  • Forests
  • Friendly Societies
  • Game
  • Health
  • Inspection of goods imported or proposed to be exported in order to detect fraud or prevent the spread of disease:



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  • Insurance — State Insurance within the limits of the State:
  • Intoxicants—the regulation and prohibition of the manufacture within the State of fermented, distilled, or intoxicating liquids:
  • Justice—Courts:
  • Land—management and sale of public lands within the State:
  • 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:
  • Manufactures—see factories:
  • Mines and Mining:
  • Municipal institutions and local government:
  • Officers—appointment and payment of public officers of the State:
  • Police — regulations, social and sanitary:
  • Prisons—State prisons and reformatories:
  • Railways—control and construction of railways within the State, subject to constitutional limitations (see Restricted Powers):
  • Rivers—subject to constitutional limitations (see Restricted Powers):
  • Shops—subject to constitutional limitations (see Restricted Powers):
  • Taxation on order to the raising of revenue for State purposes (see Restricted Powers):
  • Trade and Commerce within the State (see Restricted Powers):
  • Works—construction and promotion of public works and internal improvements, subject to the constitutional limitations (see Restricted Powers):

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

  • 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 (sec. 91):
  • Naval and Military Forces—A State may with the consent of the Federal Parliament raise and maintain naval and military forces (sec. 114):
  • 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 (sec. 51—xxxii.) 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 Inter-State Commission are undue and unreasonable, or unjust to any State (sec. 102):
  • Rivers—A State and its residents have the right to the reasonable use of the waters of rivers within the State for conservation or irrigation (secs. 98, 100):
  • 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 (sec. 114):
  • 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 inter-state 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 (secs. 90, 92):

NEW LEGISLATIVE POWERS.—By the Federal Constitution certain new legislative powers are conferred on the Parliament of each State, the exercise of which is necessary for the constitution of the Federal Parliament. The Parliament of each State is permanently endowed with power to make laws for determining the times and places of elections of senators for the State (sec. 9). Until the Federal Parliament otherwise provides, the Parliament of each State may make laws prescribing the method of


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choosing the senators for that State (sec. 9). Until the Federal Parliament otherwise provides, the Parliament of any State may make laws for determining the divisions in each State, for which members of the House of Representatives may be chosen, and the number of members to be chosen for each division (sec. 29). Until other provision is made by the Federal Parliament, the qualification of electors of members of both Federal Houses is, in each State, that which is prescribed by the law of the State as the qualification of electors of the more numerous House of the Parliament of the State (sec. 30). The laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State, apply to the election of members of the Federal Parliament, as far as practicable, and until the Federal Parliament makes other provision (secs. 10 and 31). If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen, sitting and voting together, are authorized to choose a person to hold the place until the expiration of the term, or until the election of a successor (sec. 15).

Saving of State laws.

108. Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament448 of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal449 in respect of any such law as the Parliament of the Colony had until the Colony became a State.

HISTORICAL NOTE.—Clause 2, Chap. V. of the Commonwealth Bill of 1891 was as follows:—

“All laws in force in any of the colonies relating to any of the matters declared by this Constitution to be within the legislative powers of the Parliament of the Commonwealth shall, except as otherwise provided by this Constitution, continue in force in the States respectively, and may be repealed or altered by the Parliaments of the States, until other provision is made in that behalf by the Parliament of the Commonwealth.”

At the Adelaide session, 1897, this clause was adopted verbatim. At the Melbourne session it was verbally amended. (Conv. Deb., Melb., pp. 642–3.) It was redrafted after the fourth report.

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