The Law Handbook 2024

Chapter 1.1: Where our laws come from 5 and state governors are his representatives. They are appointed by the King, but he does so on the basis of advice provided by the relevant head of government (i.e. the prime minister or premier). The Commonwealth and state constitutions appear to provide extensive powers to the King’s representatives. However, these powers are exercised in accordance with ministerial advice (except in relation to a very narrow range of issues known as the ‘reserve powers’). The reserve powers are generally accepted to be: • the power to appoint a government; • the power to reject advice to dissolve parliament; • the power to dismiss a government. State governors and the Governor-General appoint governments, usually from the party that has won an election or has the confidence of the lower house (Victoria: the Legislative Assembly; federal: the House of Representatives). The power of the state governors and the Governor-General to dismiss an elected government is subject to dispute as a result of that power being used in 1975 to dismiss the federal Labor Whitlam government. Some argue that the power to dismiss a government does not exist or should not exist. However, without that power, there is no alternative means of removing a government from office in most constitutions, even when the government has lost the confidence of the lower house or has lost an election. Although the bulk of their activities are exercised in accordance with ministerial advice, state governors and the Governor-General are not necessarily merely ‘rubber stamps’; they can still play an important role with their ‘three rights’. These three rights are: • the right to be consulted; • the right to encourage; • the right to warn. The right to warn should be exercised when a state governor or the Governor-General considers that the government is taking an unwise course of action, or if a governor or the Governor-General intends to dismiss a government. As the former Governor of Victoria, Richard McGarvie, put it: It is a cardinal principle that a governor should never ‘ambush’ a premier – should never exercise the reserve power without having given the premier adequate warning that it may be exercised. Parliaments The federal parliament – and the parliament of each state (other than Queensland) – is made up of two houses: the upper house and the lower house. The federal and state parliaments have two essential functions. The first function is determining which party is to form government. This task is performed by the lower house as that house has been historically, and in most Australian parliaments is, the more representative of the two houses. The second function of parliament is passing legislation. All Commonwealth and state legislation must be passed by each House of Parliament and be approved by the King’s representative before becoming a law. The extent of the power of Australian parliaments to make laws is detailed in the Commonwealth of Australia Constitution Act 1900 (Cth) (‘ Australian Constitution ’) and state constitutions, such as the Constitution Act 1975 (Vic). The Commonwealth legislative powers are listed in the Australian Constitution and most are not exclusive to the Commonwealth. The Commonwealth legislative powers include defence, taxation, marriage, trade and commerce, immigration and lighthouses. The states do not have a list of legislative powers, but their constitutions provide the legislative power to make laws ‘for the peace, order and good government of the state’ or, in Victoria’s case, ‘in and for Victoria in all cases whatsoever’ (see s 16 Constitution Act 1975 (Vic)). These are broad powers to make laws about all matters relating to the state. Also, despite what appears to be the limiting or qualifying nature of the words ‘peace, order and good government’, the High Court decided in Union Steamship Company of Australia Pty Ltd v King [1998] HCA 55 that those words do not have a qualifying effect. There is, therefore, an overlap between Commonwealth and state legislative powers, which can lead to inconsistent Commonwealth and state laws. If a state law is inconsistent with a Commonwealth law, section 109 of the Australian Constitution states that the Commonwealth law prevails. Section 109 also states that where there is an inconsistency between state and Commonwealth law, the state law is ‘invalid’. However, the High Court has interpreted this to mean that the state law is not, in fact, invalid, but is only inoperative while the inconsistency remains (see Carter v Egg & Egg Pulp Marketing Board (Vic) (1942) 66 CLR 577).