How is law making power split between the state and federal Parliament?

There are three levels of government in Australia:

• federal government;
• state (or territory) government; and
• local government.

These three levels developed at different times.

Colonial governments, which later became state governments, were the first level of government to be established after the British began settling on the continent in 1788.

Throughout the 1800s, local governments were progressively created by the six self-governing colonies. Later, following a series of referendums held in the 1890s, a federation was created under the Australian Constitution—in 1901, the six colonies became states to form the new nation of Australia with a national, or federal, government.

The two territory governments (the Australian Capital Territory [ACT] and the Northern Territory [NT]), were created by legislation of the Federal Parliament—the NT in 1978 and the ACT in 1988.

Under the constitution, the state/territory governments and the Federal Government have different powers and responsibilities. Local governments are not mentioned in the Constitution.

Federal

The Federal Parliament has four main functions:

• a legislative function (making laws);
• a representative function (representing the interests of voters and citizens);
• forming a government to administer laws and managing the affairs of the Commonwealth; and
• a scrutiny and accountability function (questioning the government to see if it is doing a good job).

The powers of the Federal Parliament are listed under Section 51 of the Australian Constitution and include responsibility for foreign policy, defence, income taxation, social services, migration, trade and currency. The Federal Parliament is bicameral, which means it has two houses:

• The House of Representatives, also called the ‘lower house’, is made up of 151 members elected from individual electorates all around Australia.
• The second house—the Senate or ‘upper house’—has 76 elected representatives elected by voters from each state and territory. Each state has 12 elected senators, and the territories each have two senators representing them. One of the reasons the constitution created an upper house was to ensure the interests of the states, particularly the smaller states, were adequately represented in the Commonwealth Parliament.

In bicameral parliaments (federal and state), legislation has to pass with a majority vote in both the lower and upper houses before it becomes a law.

State/Territory

State/territory government responsibilities include everything not listed as a federal responsibility in the Constitution, including:

• hospitals and schools;
• emergency services;
• law and order;
• public transport; and
• the distribution of water, gas and electricity.

State governments raise revenue through indirect taxes such as banking and gambling taxes and by charging for services such as public transport. They are not permitted to raise other taxes such as income taxation but they do receive federal funding to help pay for the services they deliver.

Just like the Federal Parliament, all the state parliaments except Queensland, are bicameral. The lower houses in these parliaments are called either the Legislative Assembly or House of Assembly, and upper houses are named Legislative Councils. The parliaments of Queensland, Australian Capital Territory and Northern Territory are unicameral—they only have one house called the Legislative Assembly.

The Legislative Assembly for the ACT is the only parliament with responsibility for both state/territory and local government functions.

Local

Every state/territory, except the ACT, has a separate system of local government. States and territories have local government regions are known as councils, shires, boroughs, or municipalities. Each is administered by a council (or equivalent) which makes decisions on local, town or city matters. In addition to receiving federal and state grants, local government authorities also raise money from their residents, usually through rates and other fees and charges. Local governments do not have the power to raise taxes.

In the ACT, the Legislative Assembly is accountable for local government functions (for example: garbage collection; looking after parks and gardens; libraries; and maintaining drains, roads and footpaths), as well as all the normal state responsibilities.

Return to the resources page

1. The Judiciary

The Judiciary includes judges and the courts. The role of the Judiciary is to interpret the law and to judge whether the law applies in individual cases.  When sworn into office, judges make the following oath:

to do right to all manner of people according to law, without fear or favour, affection or ill will

Firstly, the Judiciary administers justices to all manner of people and ensures everyone is treated equally under the law, regardless of their status or rank. They administer justice fairly and openly. The Courts are impartial. They make decisions according to the law, rather than external political pressures, personal, moral, or political views.   As outlined by former Australian High Court Justice Heydon the Judiciary is:

an independent arbiter not affected by self-interest or partisan duty, applying a set of principles, rules and procedures having objective existence and operating in paramountcy to any other organ of state and to any other source of power, and possessing a measure of independence from the wrath of disgruntled governments or other groups  

The Courts are independent from the Executive and Legislature.  The Judiciary has the power to strike down laws made by the Legislature and declare actions of the Executive unlawful. Judicial review ensures the other arms of Government are accountable under the law and are restrained from enacting laws that may be unconstitutional (and therefore invalid and unenforceable) and behaving unlawfully. This is a highly important check on the power of the Government because it provides a legal process in the courts for any individual, not matter their status or rank, to challenge the decisions of the Government.

The Australian Constitution provides a check on the power of the Executive and protects the independence of the Judiciary from political interference by outlining the tenure and remuneration of the Judiciary. This ensures a judge cannot be sacked (or pay reduced) if they make a decision that Government or those in power dislikes.

To ensure the judiciary does not exceed it powers, there is a process of appeal to higher courts. The High Court of Australia has the power to overrule the decisions of all lower Courts.

The Legislature can override a courts interpretation of any ordinary law by passing or amending the law.  This is an important check on the powers of the Judiciary by ensuring the power to make laws is held by elected representatives in Parliament (the Legislature).

2. The Executive

The Executive includes ministers and the government departments, agencies, and statutory bodies they are responsible for. The role of the Executive is to propose (but not pass laws) and then implement laws passed by the Legislature into operation. It has the power to oversee Government Agencies and Departments and deal with social, economic, or environmental issues as they arise.

As the Executive has power to carry out and enforce the law it has the greatest potential of all arms of government for corruption and for exceeding their power. Checks therefore must ensure the Executive acts in accordance with the law and is responsible to Parliament for their actions.

The Judiciary is a critical check on the overuse and misuse of power by the Executive. The Executive is the singly most frequent party in Court proceedings and the Judiciary has the power to determine whether the actions of the Executive are lawful.

Another important check on the power of the Executive is scrutiny by the Legislature and Parliamentary Committees who have the ability to ask the Executive questions in Parliament and to disallow laws passed by the Executive. The Executive is also held accountable by the Shadow Cabinet and the ‘Opposition’ who are frequently critical of Government policy and legislation.

It is important to note that there is only partial separation of powers between the Executive and Legislature in Australia as members of the Executive are drawn from Parliament.

3. The Legislature

The Legislature is an assembly of elected representatives, known as the Parliament, who has the legislative power to make laws. According to Tom Bingham, the Legislature, under the Constitution, may enact any legislation it chooses:

the Parliament has no legislative superior. The courts have no inherent powers to invalidate, strike down, superseded or disregard the provision of an ambiguous statute duly enacted by Parliament and indeed, an extremely limited power to enquire whether a statute has been duly enacted…

A further check on the Legislature is the parliamentary rules and procedures for the passing of laws. For example public readings of the bills and making bills publicly available on the Parliament website enable scrutiny by the public and the media. The bi-cameral system of Government – one which has an Upper and Lower House of Parliament – is a significant check on the power of the Legislature. The important debate and scrutiny of bills within the ‘party room’ slows down over-hasty legislation and enables members of the Legislature to express the views and concerns of those who they represent. It is an important internal check on the power of the Legislature. The Upper House has been described as:

the most important of the constitutional checks on balances on excessive concentration of power…It is the one place where Government can, of right, be questioned and obliged to answer.

– NSW Legislative Practice Chapter 2

Another important check on the power of the Legislature is the ability of the Governor General to dissolve the Legislature, which is only done in exceptional circumstances. The Governor General also must give royal assent to laws passed by the Legislature.

Further, the Constitution balances the law-making power between Federal and State Governments. The Federal Government has the power to legislate with regard to issues such as defence, taxation and immigration, whilst State Governments can make laws in areas such as roads, hospitals, and schools.

Rule of law principles also guide law making. Laws should not be retrospective. This means that once a court decision is handed down, the Legislature cannot then reverse this decision by introducing laws that illegalise actions that were deemed legal at the time by the courts The laws must consider how they delegate power, and must not include arbitrary, overly discretionary or retrospective provisions, be clear, able to be complied with and relatively stable.

Whilst the judiciary is a check to ensure all legislation is lawful, the Legislature also acts as a check on the Judiciary because it can pass laws that override the decisions of the courts.