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!