The Constitution established a Commonwealth, or federal Parliament, which is bicameral. This means it consists of two houses: the Senate and the House of Representatives. Laws can only be passed or changed with the approval of both houses and the Royal Assent of the Governor-General. The 226 members of Parliament—150 in the House of Representatives and 76 in the Senate—are responsible for making federal laws.
Sections 51 and 52 of the Constitution describe the law-making powers of the federal Parliament. For example section 51 lists 40 areas over which the federal Parliament has legislative (law-making) power. These include:
- trade and commerce
- postal and telecommunications services
- foreign policy taxation census and statistics
- weights and measures
- bankruptcy and insolvency
- quarantine lighthouses, lightships, beacons and buoys
Under section 51 of the Constitution, state parliaments can refer matters to the federal Parliament. That is, they can ask the federal Parliament to make laws about an issue that is otherwise a state responsibility. Any federal law then made about the issue only applies in the state or states who referred the matter to federal Parliament or who decide to adopt the law.
Section 52 of the Constitution stops state parliaments from making laws in some areas, including defence and communication. This means the federal Parliament has exclusive power to make laws in these areas. States are also barred from charging customs duties, which guarantees free trade within Australia. The creation of a single Australian market was a key reason for federation–before 1901 each colony taxed goods imported from the other colonies, which made trade difficult and was considered bad for their economies.
State and territory parliaments
There are eight Australian territories in addition to the Australian Capital Territory (ACT) and Northern Territory (NT):
- Ashmore and Cartier Islands
- Australian Antarctic Territory
- Christmas Island
- Cocos (Keeling) Islands
- Coral Sea Islands
- Jervis Bay Territory
- Norfolk Island
- Territory of Heard Island and McDonald Islands.
These territories are governed according to Commonwealth law and the laws of a state, the ACT or NT. Most have an appointed Administrator.
Australia has six state parliaments. It also has two territory parliaments known as Legislative Assemblies. These parliaments are located in Australia's eight capital cities:
- Northern Territory – Darwin
- Queensland – Brisbane
- New South Wales – Sydney
- Australian Capital Territory – Canberra
- Victoria – Melbourne
- Tasmania – Hobart
- South Australia – Adelaide
- Western Australia – Perth
Each state, apart from Queensland, has a parliament that consists of two houses. In 1922 Queensland Parliament agreed to abolish its upper house, the Legislative Council, which was made up of non-elected members appointed by the Queensland governor. Queensland Parliament kept the Legislative Assembly, making it unicameral (single-house).
The Northern Territory and the Australian Capital Territory parliaments are also unicameral – both have one house called the Legislative Assembly. The Australian Capital Territory is unique in Australia because its parliament combines the functions of local and state government.
Section 122 of the Constitution gave federal Parliament the power to make laws for the territories. Until they were granted self-government, the Northern Territory and Australian Capital Territory were administered or managed by the federal government. Federal Parliament gave the territories self-government by passing the Northern Territory (Self-Government) Act 1978 and the Australian Capital Territory (Self-Government) Act 1988.
The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.
State and territory parliaments make laws that are enforced within their state or territory. By defining federal powers, the Australian Constitution reserved or left most other law-making powers to the states. As a rule, if it is not listed in sections 51 and 52 of the Constitution, it is an area of state responsibility. State laws relate to matters that are primarily of state interest such as:
- roads and railways
- public transport
- utilities such as electricity and water supply
- mining and agriculture
- community services
- consumer affairs
- ambulance services
On some matters the federal Parliament and the state parliaments may make laws about the same things, for example, roads and health. However, section 109 of the Australian Constitution states that if the federal Parliament and a state parliament pass conflicting laws on the same subject, then the federal law overrides the state law, or the part of the state law that is inconsistent with it.
Section 122 of the Constitution allows the Parliament to override a territory law at any time. The federal Parliament has only used its power under section 122 on a few occasions and only in cases where the territory law has created much debate or controversy within the Australian community.
Up until 2011 the self-government Acts covering the Northern Territory and the Australian Capital Territory gave federal ministers the right to veto or change territory laws without referring the matter to federal Parliament. This veto power was used by Prime Minister John Howard in 2006 to disallow the Australian Capital Territory's civil union laws. Federal Parliament has now amended the self-government Acts to remove this veto power.
In 1997 federal Parliament passed a law to overturn the Northern Territory's Rights of the Terminally Ill Act 1995, which made euthanasia legal in the territory. The territory law, which took effect in 1996, allowed terminally ill patients to decide when to die. After a special conscience vote, both houses of federal Parliament passed the Euthanasia Laws Act 1997. The House of Representatives voted 88 to 35 in favour of the bill, while in the Senate it was passed by a vote of 38 to 33. As a result of this law, the self-government acts of the territories were amended to prevent the territory parliaments making laws about euthanasia.
There are over 560 local government bodies, or councils, across Australia. Councils consist of two groups who serve the needs of local communities:
- elected members, who normally have four year terms
- staff who work for the council.
On average each council has 10 elected members who are usually called councillors or aldermen, while the chair or head of the council is usually called the mayor or president. These smaller legislative bodies make by-laws about local matters and provide services. For example, councils are responsible for:
- local roads, footpaths, cycle ways, street signage and lighting
- waste management, including rubbish collection and recycling
- recreational facilities such as parks, sports fields and swimming pools
- cultural facilities, including libraries, art galleries and museums
- services such as childcare, aged care and accommodation
- town planning
- building approvals and inspections
- land and coast care programs
- domestic animal regulation
One of the main tasks of local government is to regulate or manage services and activities. For example, councils are responsible for traffic lights, and dog and cat management. These tasks would be difficult for a state government to manage because they are local issues.
Councils can deliver services adapted to the needs of the community they serve. For instance, the needs of residents in inner-city Sydney will be different to those of people living in rural Queensland. By providing these services and facilities, councils make sure local communities work well from day to day.
From the 1840s colonial parliaments began to hand over responsibility for local issues to local councils. The first council was established in Adelaide in 1840, followed in 1842 by the City of Sydney and Town of Melbourne councils. From the 1850s onwards, the number of elected councils grew rapidly.
Today, local authorities include city councils in metropolitan and regional urban centres, and shire councils which serve rural areas. On average each council looks after about 28 400 people; however, the size varies. For example, Brisbane City Council is responsible for a population of nearly one million, while Jerilderie Shire in New South Wales has a population of less than 2000 people.
Local councils are not mentioned in the Australian Constitution, although each state has a local government Act (law) that provides the rules for the creation and operation of councils.
While these Acts vary from state to state, in general they cover how councils are elected and their power to make and enforce local laws, known as by-laws. A by-law is a form of delegated legislation because the state government gives, or delegates, to councils the authority to make laws on specific matters. As councils derive their powers from state parliaments, council by-laws may be overruled by state laws.
Many geographically large countries, including Australia, Canada, the United States, Germany, Mexico and India, are federations. Each has three levels of governance, which allows decisions to be made by the most appropriate level.
For example, a council is best placed to decide whether its local community needs new cycle paths; a state government can identify and make decisions about policing and public transport needs; the federal government is in the best position to coordinate the defence of Australia or to negotiate trade agreements with other countries on behalf of Australian exporters.