Powers and jurisdiction of the Houses

While the Constitution states that the legislative power of the Commonwealth is vested in the Queen, a Senate and a House of Representatives[75] and, subject to the Constitution, that the Parliament shall make laws for the ‘peace, order, and good government of the Commonwealth’,[76] the Parliament has powers and functions other than legislative. The legislative function is paramount but the exercise of Parliament’s other powers, which are of historical origin, are important to the understanding and essential to the working of Parliament.

Non-legislative powers

Section 49

Section 49 of the Constitution states:

The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

In 1987 the Parliament enacted comprehensive legislation under the head of power constituted by section 49. The Parliamentary Privileges Act 1987 provides that, except to the extent that the Act expressly provides otherwise, the powers, privileges and immunities of each House, and of the Members and the committees of each House, as in force under section 49 of the Constitution immediately before the commencement of the Act, continue in force. The provisions of the Act are described in detail in the Chapter on ‘Parliamentary privilege’. In addition, the Parliament has enacted a number of other laws in connection with specific aspects of its operation, for example, the Parliamentary Precincts Act, the Parliamentary Papers Act, the Parliamentary Service Act and the Parliamentary Proceedings Broadcasting Act.

The significance of these provisions is that they give to both Houses considerable authority in addition to the powers which are expressly stated in the Constitution. The effect on the Parliament is principally in relation to its claim to the ‘ancient and undoubted privileges and immunities’ which are necessary for the exercise of its constitutional powers and functions.[77]

It is important to note that in 1704 it was established that the House of Commons (by itself) could not create any new privilege;[78] but it could expound the law of Parliament and vindicate its existing privileges. Likewise neither House of the Commonwealth Parliament could create any new privilege for itself, although the Parliament could enact legislation to such an end. The principal powers, privileges and immunities of the House of Commons at the time of Federation (thus applying in respect of the Commonwealth Parliament until the Parliament ‘otherwise provided’) are summarised in Quick and Garran.

It should be noted that some of the traditional rights and immunities enjoyed by virtue of s. 49 have been modified since 1901—for instance, warrants for the committal of persons must specify the particulars determined by the House to constitute an offence, neither House may expel its members, and the duration of the immunity from arrest in civil causes has been reduced.[79]

Section 50

Section 50 of the Constitution provides that:

Each House of the Parliament may make rules and orders with respect to:

1. The mode in which its powers, privileges, and immunities may be exercised and upheld;
2. The order and conduct of its business and proceedings either separately or jointly with the other House.

The first part of this section enables each House to deal with procedural matters relating to its powers and privileges and, accordingly, the House has adopted a number of standing orders relating to the way in which its powers, privileges and immunities are to be exercised and upheld. These cover such matters as the:

• procedure in matters of privilege (S.O.s 51–53);
• power to order attendance or arrest (S.O.s 93, 96);
• power to appoint committees (S.O.s 214–224);
• power of summons (S.O.s 236, 249, 254);
• issues to do with evidence (S.O.s 236, 237, 242, 255); and
• protection of witnesses (S.O. 256).

The second part enables each House to make rules and orders regulating the conduct of its business. A comprehensive set of standing orders has been adopted by the House and these orders may be supplemented from time to time by way of sessional orders and special resolutions.

Section 50 confers on each House the absolute right to determine its own procedures and to exercise control over its own internal proceedings. The House has in various areas imposed limits on itself—for example, by the restrictions placed on Members in its rules of debate. Legislation has been enacted to remove the power of the House to expel a Member.[80]

Legislative power

The legislative function of the Parliament is its most important and time-consuming. The principal legislative powers of the Commonwealth exercised by the Parliament are set out in sections 51 and 52 of the Constitution. However, the legislative powers of these sections cannot be regarded in isolation as other constitutional provisions extend, limit, restrict or qualify their provisions.

The distinction between the sections is that section 52 determines areas within the exclusive jurisdiction of the Parliament, while the effect of section 51 is that the itemised grant of powers includes a mixture of exclusive powers and powers exercised concurrently with the States. For example, some of the powers enumerated in section 51:

• did not belong to the States prior to 1901 (for example, fisheries in Australian waters beyond territorial limits) and for all intents and purposes may be regarded as exclusive to the Federal Parliament;
• were State powers wholly vested in the Federal Parliament (for example, bounties on the production or export of goods); or
• are concurrently exercised by the Federal Parliament and the State Parliaments (for example, taxation, except customs and excise).

In keeping with the federal nature of the Constitution, powers in areas of government activity not covered by section 51, or elsewhere by the Constitution, have been regarded as remaining within the jurisdiction of the States, and have been known as the ‘residual powers’ of the States.

It is not the purpose of this text to detail the complicated nature of the federal legislative power under the Constitution.[81] However, the following points are useful for an understanding of the legislative role of the Parliament:

• as a general rule, unless a grant of power is expressly exclusive under the Constitution, the powers of the Commonwealth are concurrent with the continuing powers of the States over the same matters;
• sections, other than sections 51 and 52, grant exclusive power to the Commonwealth—for example, section 86 (customs and excise duties);
• section 51 operates ‘subject to’ the Constitution—for example, section 51(i) (Trade and Commerce) is subject to the provisions of section 92 (Trade within the Commonwealth to be free);
• section 51 must be read in conjunction with sections 106, 107, 108 and 109—for example, section 109 prescribes that in the case of any inconsistency between a State law and a Commonwealth law, the Commonwealth law shall prevail to the extent of the inconsistency;
• the Commonwealth has increasingly extended its legislative competence by means of section 96 (Financial assistance to States)—for example, in areas such as education, health and transport. This action has been a continuing point of contention and has led to changing concepts of federalism;
• section 51(xxxvi) recognises Commonwealth jurisdiction over 22 sections of the Constitution which include the provision ‘until the Parliament otherwise provides’—for example, section 29 (Electoral divisions). Generally they are provisions relating to the parliamentary and executive structure and, in most cases, the Parliament has taken action to alter these provisions;[82]
• section 51(xxxix) provides power to the Parliament to make laws on matters incidental to matters prescribed by the Constitution. This power, frequently and necessarily exercised, has been put to some significant uses—for example, jurisdictional powers and procedure of the High Court, and legislation concerning the operation of the Parliament;[83]
• section 51(xxix) the ‘external affairs power’ has been relied on effectively to extend the reach of the Commonwealth Parliament’s legislative power into areas previously regarded as within the responsibility of the States (in the Tasmanian Dams Case (1983) the High Court upheld a Commonwealth law enacted to give effect to obligations arising from a treaty entered into by the Federal Government);[84] similarly section 51(xx) the ‘corporations power’ has been relied on in relation to federal legislation on workplace relations;
• section 51 itself has been altered on two occasions, namely, in 1946 when paragraph (xxiiia) was inserted and in 1967 when paragraph (xxvi) was altered;[85]
• the Commonwealth has been granted exclusive (as against the States) legislative power in relation to any Territory by section 122, read in conjunction with section 52;
• the Federal Parliament on the other hand is specifically prohibited from making laws in respect of certain matters—for example, in respect of religion by section 116;
• in practice Parliament delegates much of its legislative power to the Executive Government. Acts of Parliament frequently delegate to the Governor-General (that is, the Executive Government) a regulation making power for administrative purposes. However, regulations and other legislative instruments must be laid before Parliament, which exercises ultimate control by means of its power of disallowance;[86]
• it is not possible for a Parliament to bind successor Parliaments, for example by enacting legislation in certain terms, as whatever provisions may be provided for in an Act may be repealed or amended by another Parliament.[87]

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