According to James Madison, one of the founding fathers of the North American Federation, there are at least five ways that we can identify a Federal Constitution. For Madison, we ought to consider when analyzing a federal constitution the formation process the representation in government institutions the configuration of powers the operation of federal laws and the process to amend the constitution. So, if we were to take these five aspects, how are we to qualify the Australian Federation how would Australia fit in each one of these aspects? Hello everyone my name is Renato Costa this is Aussie Law and today we will learn a bit more about the Federal System in Australia. If you don't want to miss any of our videos about the Australian Federation and the Australian Constitution, I invite you to subscribe to our channel and click the bell sign because then every time I upload a new video you'll be notified and you're not going to miss out! So, welcome to another part of a series of videos that we are doing about Federalism in Australia. If you haven't checked our previous videos, I would invite you to do that by clicking on the top right corner but if you have you already know that we already discussed some things about the Australian Federation like federalism being about self-rule and shared rule. Self-rule concerns the states continuing to exercise autonomous powers of self-government and shared rule is about the states participating in the governing of the whole of Australia. So we know that let's now move on to these five aspects that Madison highlighted. The first aspect is the formation of a federal system we have already seen a lot and I've talked a lot about that we know that Australia was an aggregation it was through an aggregative movement of the colonies uniting into one Federal Commonwealth. The second aspect relates to the governing institutions of the states and of the Commonwealth. I have already explained the branches of government and their governing institutions in the video entitled "Australian Federalism Explained". I said there that both levels of government the states and the Commonwealth they have a similar structure concerning the branches of power the Executive, the Legislature and the Judiciary. If you want more details about that go there and click on the video that is appearing in the card above. Now, the other three points, I think, deserve closer attention. The third aspect of a federal constitution is the configuration of powers it means the manner in which governmental powers are located between the two levels of government. I've hinted about this distribution of powers in other videos but right now I want you to open the Constitution, Chapter 1, Section 51, and check the list that is appearing there. Do you see there is a list of legislative powers of the Federal Parliament there? It includes trade and commerce, taxation, postal and telephonic services ,quarantine, census and statistics, currency and coinage, naturalization and aliens, that's me the alien, marriage, external affairs... there's a bunch of stuff there. And if you move to section 52, you will also find what are called the exclusive powers of Parliament and there is another list of things that Parliament, the Federal Parliament can legislate about. But we don't find here in the Australian Constitution a list of legislative powers that were given to the States, because the idea of the framers of the Australian Constitution was that anything that wasn't given in the list there for the Federal Parliament would belong to the states; was reserved to be legislated by the states. This is known as the "doctrine of reserved states powers" it is also a doctrine that comes from the interpretation primarily of section 106 in 107 of the Australian Constitution. The idea of the doctrine of reserved powers was that we should interpret the powers that were given to the Commonwealth, to the Federal Parliament in a manner that would preserve the powers that were reserved to the States. So the States have residual powers. The powers that are not listed to the Commonwealth belong to the States. Hence the name doctrine of "reserved powers". This doctrine has actually changed and we will explain that later on when we make a video about the Engineer's case. If you don't want to miss that video make sure that you click the bell sign and subscribe to our channel. In the Federal Constitution there is an allocation and distribution of power between the States and the Federal Commonwealth. So this is the configuration of power in the Australian Federation: there are powers that are expressly given to the Federal Commonwealth, even some exclusive powers, and the remainder of those powers, all the powers that are not listed in section 51 and 52 of the Constitution, they belong, they were reserved, to the States. Now let's move forward to the fourth aspect. It's about the operation of federal law. This kind of falls into the explanation of the third aspect but with one distinctiveness because this fourth aspect deals with the capacity of the federal law to directly interfere and regulate the life of an individual. So here I want to briefly discuss section 109 of the Australian Constitution. We saw when we were discussing aspect number three that the Federal Commonwealth could still legislate about matters that will directly affect the life of an individual. That's fine. And those matters are set out in section 51 of the Australian Constitution. But the thing that I wanted to focus here is what happens if the State and the Commonwealth they both legislate but their legislation, their laws conflict with one another. What happens if there is a contradiction of law between the States and the Commonwealth? What law will prevail? What law will be followed by the individual? The federal or the state's? According to section 109, when a law of the State conflicts and is inconsistent with the law of the Federal Commonwealth, it is the law of the Commonwealth that will prevail and the law of the State to the extent of its inconsistency will be invalid this section is a very important section and it deserves a video of its own. I will record that later on but now I just want you to know this: if there is an inconsistency between the State law and a Commonwealth law it is the Commonwealth law that will prevail and the Commonwealth laws will trump the State laws to the extent of their inconsistency with the Commonwealth laws so what about the fourth aspect and the operation of the federal law that can directly affect an individual we can see that not only in section 51 of the Constitution where there is a list of matters that the Federal Parliament can legislate about but also in section 109 when State laws are inconsistent with the Federal Commonwealth, with federal laws, and to the extent of the inconsistency, it is the Commonwealth law, the federal law, that will prevail and be applied in that situation and directly to that person. And, finally, let's move to the fifth aspect the amendment process. I've already talked about it as well and you can check what I said in the video about the differences between the states and the territories. And I also promised to make a video specifically about section 128 of the Australian Constitution that deals with the amendment to the Constitution but what is relevant to us now is that the States do participate in the process of amending the Australian Constitution. According to section 128 of the Australian Constitution, to amend it we need not only to count the votes of the whole of the people of Australia but also to count the votes of the people of the States. This tells us that there is not only a national or a federal approach in initiative to change the Constitution but that the States do participate they actively and directly participate in the amendment process so this is already one thing that is a mark of the Australian Federal System but there is yet another thing the Senate also participates in the process and as we have seen the Senate is the "house of the States". So, to alter the Australian Constitution, we need not only the participation of the States to count in the referendum as a majority of the people of the States but also in the Senate through the representatives of the States, the senators. So the fifth aspect is completed by the fact that the States do participate in the amendment process. So there you have it the Madisonian five aspects of a Federal constitution applied to Australia. Thank you so much for watching this video! I hope you enjoyed it, don't forget to like it, to subscribe, and also hit the bell sign. And, of course, share this with everyone you think may profit, may benefit from this video. I hope to see you next time. Until then, tchau!