The Role of State Constitutions in Protecting ... - International IDEA

minority rights. The Australian federation is an exception, which has been able to
continue only because each State in fact has broadly common standards, and there
has so far been no cause for real concern.
Division of power
The federal division of power is set out in the Commonwealth Constitution. The
principle on which the framers of that Constitution worked was as follows. Each
colony, soon to become a State, already had full powers of self-government,
within its own territory. In order to establish a federation, the States must lose
some powers to the new national government, the Commonwealth. Only the
powers that were considered necessary for the Commonwealth, however, should
be transferred in this way. This principle was given effect both in the model for
the division of powers between the Commonwealth and the States and in the
particular powers that were conferred on the Commonwealth.
Model for the division of powers
Powers are divided under the Australian Constitution by giving particular powers
to the Commonwealth and leaving the remainder with the States. Most of the
Commonwealth powers are “concurrent”. This means that the States can exercise
them as well, although if there is a conflict between a Commonwealth and a State
law, the Commonwealth law will prevail and the State law will be “inoperative”.
A few Commonwealth powers are “exclusive”, including power to impose duties
of customs and excise. The States may not legislate at all in relation to
Commonwealth exclusive powers.
The Australian federal model divides executive and judicial power between the
Commonwealth and the States as well, in a way that broadly matches the division
of legislative power. In this respect Australia (and most of the other common law
federations) is different to the German federal model, where the States have more
administrative than legislative power. This approach is also reflected in the institutional
structure of government. With a few exceptions, there is a complete set
of governing institutions at the national level and within each State, to exercise
these various powers.
Thus each State has a Parliament, an executive government with a Governor
representing the Queen, and a court system. Other institutions are duplicated as
well, including Auditors-General and Ombudsmen. Similarly, the
Commonwealth has a Parliament, executive government and Governor-General
and court system; although the highest Commonwealth court, the High Court of
Australia, also acts as the final court of appeal from all State courts and State
courts can exercise federal judicial power. Some institutions are found only at the
Commonwealth level, because they fall within Commonwealth power, or have
been established by co-operation between governments. The Reserve Bank of
Australia, the Australian Competition and Consumer Commission and the
Australian Corporations and Investment Commission are examples.
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