01_Institutions - Constitutional and Administrative Law 01 Themes and Institutions PART I THEMES AND INSTITUTIONS I Introduction and Framework1 A

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Constitutional and Administrative Law 01 – Themes and Institutions Page 1 of 50 P ART I T HEMES AND I NSTITUTIONS I Introduction and Framework 1 A Historical Context The British Parliament could make law binding upon the Australian Commonwealth until 1942. 2 States continued to be bound by British law until 1986. 3 Some English legislation may still apply in Australia. B Levels of Government Australia is a federalist country; there are two primary levels of government, the Commonwealth (with one federal Parliament), and the states/territories (each with separate Parliaments). Municipal authorities form a less important, third tier of government. 1 Power division Legislative powers are divided between the Commonwealth and states/territories, asset out in the Constitution . There are three types of federal power: Exclusive jurisdiction – matters made the exclusive province of the Commonwealth parliament; Concurrent powers – matters able to be dealt with by both Commonwealth and state/territory Parliaments; and Residual powers - matters left unspecified in the Constitution ; the exclusive province of the states/territories. In practice, the Commonwealth may influence areas outside its constitutional jurisdiction by imposing conditions on the way money granted to the states/territories is spent. Because many federalist issues arise in the context of finance and trade, they might be thought to be resolved in the Commonwealth’s favour by reference to s 51(i) (the relevant head of power). However, even where the spending of money is involved, an exercise of power may still fall outside the scope of ss 51–2. 2 Internal conflict of laws Where a law enacted by a state or territory conflicts with one enacted by the Commonwealth, the latter will prevail to the extent of the inconsistency. For example, the State constitutions often purport to be able to legislate ‘in all cases whatsoever’; 4 clearly, this expansive power is limited by the federal Constitution . 1 Rosemary Hunter, 'Institutions, Institutional Structure and Sources of Law' (2001). 2 See Statute of Westminster Adoption Act 1942 (Cth). 3 See Australia Act 1986 (Cth) s 3. 4 Victorian Constitution s 16.
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Constitutional and Administrative Law 01 – Themes and Institutions Page 2 of 50 C Constitutions 1 States Each state has its own Constitution. They were originally acts of the British Parliament, but are now Acts of the Australian states. By s 107 of the Commonwealth Constitution , the states’ constitutions were expressed as remaining in force through federation. 2 Commonwealth The Commonwealth Constitution is still contained in an Act of the British Parliament. 3 Modification State constitutions can be altered by their enacting Parliament. Modifying the
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This note was uploaded on 08/17/2010 for the course BUSLAW 730-214 taught by Professor N/a during the Three '10 term at Melbourne Business School.

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01_Institutions - Constitutional and Administrative Law 01 Themes and Institutions PART I THEMES AND INSTITUTIONS I Introduction and Framework1 A

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