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

The mere description of the Australian model for dividing federal power makes it
sound as if it favors the States, as indeed it was expected to do. In practice,
however, power has gradually shifted to the Commonwealth, largely through
judicial interpretation, but in a manner that seems to have reflected the changing
needs and circumstances of the Australian people. Australia is not unique in this
regard; a similar pattern of growth of central power can be seen in, for example,
the United States (US), which divides federal power in the same way. The US and
Australian experience suggests that, if particular powers need to be guaranteed to
the States in a federation in Burma, the Constitution should expressly say so by,
for example, providing a list of exclusive State powers.
It might be helpful to give an example of how the division of powers works in the
Australian federation. One of the legislative powers given to the Commonwealth
by the Constitution is a power to make laws with respect to “external affairs”. The
High Court has held that this enables the Commonwealth Parliament to
incorporate into Australian law any international treaty to which Australia is a
party. Some of these treaties deal with matters otherwise within State power; the
environment is an example. By relying on the external affairs power, the
Commonwealth Parliament therefore can make laws on matters that the States
had previously thought were their responsibility. Moreover, the decision to sign
and ratify a treaty is an executive decision, which falls within Commonwealth
executive power. Any legal dispute arising under a Commonwealth law incorporating
a treaty involves federal judicial power and will be dealt with in
Commonwealth courts unless the Commonwealth Parliament has given
jurisdiction to the State courts.
The particular powers given to the Commonwealth
The Australian Constitution gives 40 legislative powers to the Commonwealth
Parliament.
Within this list, it is possible to identify particular categories of powers, as follows:
◆
◆
◆
External affairs and associated matters (for example, relations with the
islands of the Pacific; quarantine; the influx of criminals)
Defense, including maintenance of the defense forces, which effectively
is an exclusive Commonwealth power, under section 114. The
Commonwealth has an obligation to defend the States, under section
119. By contrast, the general police force is a State responsibility; while
there is a federal police force, it deals only with criminal matters arising
under Commonwealth law (for example, offences dealing with the
importation of drugs).
Commercial matters: interstate and overseas trade; banking; insurance;
weights and measures; currency and coinage (effectively also exclusive,
under section 114); foreign, trading and financial corporations.
36