Australian Constitution

Australian Constitution – Chapter 5

The States

Sections 106-120

Section 106 – Saving of Constitutions

The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission of establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.

Section 107 – Saving of Power of State Parliaments

Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

Section 108 – Saving of State laws

Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State.

Section 109 – Inconsistency of laws

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Section 110 – Provisions referring to Governor

The provisions of this Constitution relating to the Governor of a State extend and apply to the Governor for the time being of the State, or other chief executive officer or administrator of the government of the State.

Section 111 – States may surrender territory

The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth.

Section 112 – States may levy charges for inspection laws

After uniform duties of customs have been imposed, a State may levy on imports, or on goods passing into or out of the State such charges as may be necessary for executing the inspection laws of the State; but the net produce of all charges so levied shall be for the use of the Commonwealth; and any such inspection laws may be annulled by the Parliament of the Commonwealth.

Section 113 – Intoxicating liquids

All fermented, distilled, or other intoxicating liquids passing into any State or remaining therein for use, consumption, sale, or storage, shall be subject to the laws of the State as if such liquids had been produced in the State.

Section 114 – States may not raise forces – Taxation of property of Commonwealth or States

A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, not shall the Commonwealth impose any tax on property of any kind belonging to a State.

Section 115 – States not to coin money

A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts.

Section 116 – Commonwealth not to legislate in respect of religion

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Section 117 – Rights of residents in States

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

Section 118 – Recognition of laws, &c. of States

Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceeding of every State.

Section 119 – Protection of States from invasion and violence

The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.

Section 120 – Custody of offenders against laws of the Commonwealth

Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effects to this provision.

David

Malcom, have there been any attempts to challenge the federal government fiat fractional reserve currency on the basis that if the states are only able to accept gold and silver as payment then clearly the Fed has to provide a gold and silver currency so that it acceptable as payment within the states?

How is it that the section clearly stating that only gold and silver is acceptable as payment by the states is simply ignored? Surley one could successfully argue that all other sections can also be ignored if s115 can be?

http://australianpolitics.com Malcolm Farnsworth

I’m not too sure about this one but Section 115 makes it plain that currency is the preserve of the Commonwealth. This is supported by Section 51 (xii) which gives the Commonwealth power over “currency, coinage, and legal tender”.

In effect, the States have no say in determining what is acceptable payment since the Commonwealth decides all matters relating to currency. I would assume that “gold and silver coin” would be interpreted as the currency in place at any given moment.

It seems to me that Section 115 is designed to prevent the States from establishing their own system of exchange in competition with the Commonwealth’s currency. By stipulating that the Commonwealth has power over currency and coinage, the requirement that the States can only make “gold and silver coin” acceptable payment for debts means that the Commonwealth’s currency will always hold sway.

And quite rightly so!

David

Malcolm, thanks for the response, not sure I agree with “And quite rightly so” ….

I hope you mean – and rightly so if the federal government is to succeed in its efforts to force its citizens to be subjected to the insidious hidden taxation of monetary inflation while enabling it to constantly expand its tentacles via deficit spending thus enslaving future generations to those unpayable debts.

Who decides that “gold and silver coin” really means “the currency in place at the time”? I must be very stupid indeed because to me “Gold and Silver Coin” means … “Gold and Silver Coin” or at he very least it means “hard currency akin to gold and silver coin and specifically NOT pure fiat currency that can be (sorry, has been) debauched and inflated away to near zero? I.e. constitutional protection for the citizens.

http://australianpolitics.com Malcolm Farnsworth

You’re letting your conspiracy theories get in the way of a very simple point, namely that the 1901 Constitution sought to establish a single national currency for the federated colonies.

The High Court exists to interpret the Constitution and adjudicate disputes between the States and the Commonwealth. To the best of my knowledge, there has never been a challenge to the Commonwealth’s power in regard to the currency.

These days, Section 115 would be one of the most non-contentious sections of the Constitution.

Chereebie

what are 3 areas that queensland has shared or sole rights to regulate under sec 107
Roberta Stubberfield

I have been told that federal gonernment does not recognise local government councils is this true

Anonymous

That is correct. A referendum was held in 1988 to recognise local government but it was defeated. The Gillard government is proposing another referendum.

Richard

If a state law is not covered by a commonwealth law or does not exist under commonwealth law, is it true then to say that under section 109, the state law is then invalid? The inconsistency being the non-existence of the corresponding comonwealth law?

Section 109 – Inconsistency of laws

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
Sophie Linardopoulos

There are some sections in the commonwealth constitution which actually give the Federal Government power if the states. What are three of these sections and what powers do they give?
chris atmore

Could you please tell me how s 117 might apply if the states adopted mutual recognition of family violence protection orders? For example, consider person X in State A who has a protection order made against them due to their volence against person Y who also resides in State A. Y moves to State B, which offers a lesser form of protection from violence, and consequently the extent of the order available to Y in State A would not normally be available to Y in State B. However because A and B have mutual recognition legislation concerning family violence, Y’s order remains valid to its full extent. X visits State B and breaches the order concerning Y in a manner that would not otherwise, if mutual recognition did not exist) be a breach in State B, and therefore is arrested, charged and prosecuted. Does this mean that X is discriminated against according to the Constitution and therefore that the mutual recognition is invalid to the extent of the discrimination? Or must X be tried back in State A and therefore technically they are not discriminated against (unlikely scenario though, because the breach took place in State B)?
http://www.safety4parentsandkids.org.au Usha Adams

Can you please tell me in relation to child protection and family violence, if the family law courts do not protect the child from abuse, can the children be protected in the states, who has the constitutional powers of children

Section 109 – Inconsistency of laws

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Is it true that the consituional power to protection of children from abuse and harm is to the states, and divorce and property to the C’wealth? And if the violence and abuse of children is not addressed by family law courts, then does States have the responsibility to protect children..question for ALRC submissions, and I need some clarification, and also above section explained please…

Bobnundy

Is it the Family Court your referring to? What is the Family LAW Court?
http://australianpolitics.com Malcolm Farnsworth

As always, I am not a lawyer and I don’t offer any of these comments as legal advice but I think you have basically got it right.

The Family Court has jurisdiction over custody issues concerning children in the event of marital breakdown. The welfare of children is always a high priority for that court.

However, general issues of child protection and family violence are covered by the criminal law of the various States.