Legal Studies AOS 2
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Specific powers are all the powers of the Commonwealth Parlianment. They are also known as enumerated because they are listed in the Constitution. Majority of these powers are found in section 51. There are 39 powers llisted in this section and are commonly referred to as the heads of power.
- other sections that gives specific power to the Commonwealth are
- - Section 73 & 76 which gives the Commonwealth the power to change the High Court jurisdiction
- -section 7 gives it the power to change the number of senators in the Senate as long as each state has equal representation
- -Section 86 which gives them power over customs and excise
Concurrent powers are the powers shared with the states, majority of the powers listed in section 51 are concurrent
exclusive powers are specific powers vested exclusively to the Commonwealth. For a power to be exclusive it must forbid states from legislating on that area or by stating that it is exclusive to the Commonwealth.
Section 90 gives the Commonwealth exclusive power to impose customs and excise duties.
Section 51 (vi) gives the Commonwealth power to control and establish the naval and military defence of the nation, then section 114 makes this an exclusive power y stating 'A state shall not, without the consent of the Parliament of Commonwealth raise or maintain and naval or military force
- Due to concurrent powers states and the Commonwealth have the power to legislate on some of the same areas. If the two make conflicting laws section 109 solves it.
- In the event that a state law is inconsistent with a Commonwealth law on the same area, the Commonwealth law will prevail making the state law invalid or at least the inconsistent parts.
- Section 51(xxii) is a concurrent power which specifies divorce and the resultant custody of any children of divorced parents. Up until 1959 the states all had similar acts on the subject which were in line with the English Matrimonial Causes Act 1857 however due to many changes they started to lack uniformity so the Commonwealth chose to legislate meaning that any state laws that were invalid with the Commonwealth law would become invalid.
Residual powers are law-making powers available to the states because they are not specifically referred to the Commonwealth in the Constitution. This includes matters such as education, law and order, public transport and consumer protection
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