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Lower Secondary – Law - Focus question 4: Who has the final say about laws in Australia?
Activity 2: Constitutional powers
Most of the areas in which the Commonwealth Parliament can make laws are set out in Section 51 of the
Australian Constitution. The Constitution is available in the Selected Sources. It is also available on the
Stories of Democracy CD ROM.
Some of the powers of the three levels (Commonwealth, State and local) of government can be seen on
the 'Levels of Government' poster.
2a Look at the list of powers set out in Section 51. Give each a symbol to indicate what it covers. For
example, you might put $ beside 'currency'. Some might be hard, but give it a go!
If an area or power is not listed as a Commonwealth power in the Constitution, then the Commonwealth
Parliament cannot make laws in that area. Only the States can make a law in that area.
2b Tick any of the powers listed in Section 51 that have ever affected you directly. For example, those of
you who have gone overseas for a holiday needed a passport, so would tick 'immigration and emigration'.
How many of these laws have affected your life?
The High Court and the Constitution
In instances where it is not clear if the Commonwealth has the power under its Constitution to make laws
in a particular area, the High Court decides how the Constitution should be interpreted, and whether the
law-making power in that area belongs to the Commonwealth or to a State or Territory.
Section 51 (v) of the Constitution gives the Commonwealth power to make laws about 'postal, telegraphic,
telephonic and other like services'. When the Constitution was written in the 1890s, there was no radio,
television or Internet. Do you think the Commonwealth has the power to make laws about radio, television
and the Internet, or are these matters over which the States have the power?
The High Court would decide that the Constitution's 'telephonic, telegraphic and other like services'
covers radio, television and the Internet as they fall into the same category as telephone and telegraph.
So they would be included in the category, even though the makers of the Constitution did not know
about them and even though they did not even exist at the time.