What is a shared power between the state and federal government?

Prime Minister Malcolm Turnbull chairing COAG, with State and Territory leaders. Source: David Foote, Auspic

Índice Show

United States
Supremacy Clause
Article I, Section 8
Tenth Amendment
Concurrent Powers
Further Reading
What Will I Learn

Federalism divides political power between the different parts of the Federation. In Australia, we have the ‘Federal’ or ‘Commonwealth’ Government, and the Governments of the States and Territories. Federalism is about sharing power between the different entities which limits their powers. By dividing power like this, federalism strengthens representative democracy, can protect liberty, and can promote local decision making on issues of local importance.

What is federalism?

In Australia, we three levels of government – federal, State and Territory, and local. Federalism is about distributing and sharing power between the different levels. By dividing power like this, federalism strengthens parliamentary representative democracy and promotes local decision making.

Federalism limits government power
The Federal Parliament can only use powers found in the Constitution to make laws. Anything else is a State power. If both the Federal and State Parliaments make inconsistent laws, the Federal law prevails. However, they can both enact complementary laws on the same subject.

Has Federal power grown since federation?
Through interpretation of the Constitution federal power has expanded. The section 51xxix ‘external affairs’ power allows the Federal Parliament to make laws giving effect to treaties on subjects including industrial relations, the environment and racial discrimination. It also has greater power to raise and share revenue.

How does the Constitution protect States’ powers?

The Federal Government cannot place special burdens on States that affect their ability to function as Governments. The Federal Government cannot destroy or undermine the States’ continued independent existence.

How are disputes resolved within the federal system?

Disputes do occur between the Federal Government and State Governments, between different State Governments, and between citizens and their Governments. Most problems are solved through the political process. The High Court often resolves these questions if they raise constitutional issues.

Click here to download a PDF of Principle 4: Federalism in detail

Click here to read the Federalism High Court Case Engineers Union succeeds in the High Court, expanding Federal power

The Australian Federation

Postcard, ‘The birth of a nation at the century’s dawn’. Source: National Archives of Australia

State Premiers and Prime Minister Malcolm Fraser meet in 1978. Source: National Archives of Australia

Federalism is a system of government in which the same territory is controlled by two levels of government. Generally, an overarching national government is responsible for broader governance of larger territorial areas, while the smaller subdivisions, states, and cities govern the issues of local concern.

Both the national government and the smaller political subdivisions have the power to make laws and both have a certain level of autonomy from each other.

United States

In the United States, the Constitution has established a system of “dual sovereignty,” under which the States have surrendered many of their powers to the Federal Government, but also retained some sovereignty. Examples of this dual sovereignty are described in the U.S. Constitution.

Supremacy Clause

Article VI of the U.S. Constitution contains the Supremacy Clause, which reads, "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." This effectively means that when the laws of the federal government are in conflict with the laws of a state's government, the federal law will supersede the state law.

Article I, Section 8

Article I, Section 8 of the Constitution describes specific powers which belong to the federal government. These powers are referred to as enumerated powers.

Tenth Amendment

The Tenth Amendment reserves powers to the states, as long as those powers are not delegated to the federal government. Among other powers, this includes creating school systems, overseeing state courts, creating public safety systems, managing business and trade within the state, and managing local government. These powers are referred to as reserved powers.

Concurrent Powers

Concurrent powers refers to powers which are shared by both the federal government and state governments. This includes the power to tax, build roads, and create lower courts.

What Will I Learn

The following information and activities will help you to develop an understanding of the concept of the ‘division of powers’
You will learn how it applies in Australia and NSW

Australia’s system of government operates from a set of rules and structures based on a written document called the Australian Constitution. It came into existence at Federation in 1901 and created three levels of government. Federal Parliament and the state parliaments are two of the levels and the third level of government are local councils (shires and municipalities).

The division of powers in the Australian Constitution is also often referred to as the three levels of government in which no one level of government can control all the laws and activities in the nation.

Generally, there are four different types of legislative power:

Specific
Exclusive
Concurrent
Residual

WHAT POWER?	DEFINITION	EXAMPLE
Specific	These are law making powers given to the Federal Parliament and listed in sections 51 and 52 of the Constitution. They provide the Commonwealth with the power to make laws for ‘peace, order and good government of Australia’.	Immigration
Exclusive	Some powers are also exclusive to the Commonwealth. They are powers that only the Commonwealth can make laws for and the States cannot. The states are excluded from legislating about areas such as immigration, defence and currency. For example, it would make life in Australia a bit difficult if every state had their own currency, which is why this type of power suits the Australian Parliament.	Currency
Concurrent	Some powers are non-exclusive and shared with the states. They are called concurrent powers because both the Federal Parliament and the State Parliaments can make legislation about these areas. However if a State were to make a law that conflicted with a law of the Federal Parliament, s 109 of the Constitution states that the Federal legislation will override state legislation.	Taxation
Residual	These are the law making powers of each state agreed to at Federation when each of the colonies discussed the powers they wanted to retain and what they were willing to cede to the new Federal Parliament. The law-making powers of the states are not written in the Australian Constitution and are far-reaching, and the New South Wales Constitution does not list law-making powers either. Instead, it provides the Parliament with a broad grant to “make laws for the peace, welfare, and good government of New South Wales” (section 5 of the Constitution Act 1902)	Schools

The Parliament of Australia in Canberra

As well as being based on Britain’s Westminster system, some features of Australia’s federal system were inspired by the federal system of the United States. These include:

outlining the powers of Federal Parliament (s 51)
giving of ‘residual’ power to the states (s 108)
an inconsistency clause (s 109)
strong bicameralism, with a Senate in which the states are equally represented notwithstanding great disparities in population (s 7)
election of senators in alternating electoral cycles (s 13)
the establishment of a High Court of Australia as a supreme court empowered to declare actions of either level of government unconstitutional (s 71)
a complex procedure to alter the Constitution through referendum (s 128)

NSW Parliament in Sydney

Each level of government provides services for the people of Australia. Each of them is elected by the people that they provide services for.

WHAT LEVEL?	LEADER	EXECUTIVE BODY	SOME KEY RESPONSIBILITIES
THE WHOLE NATION	Prime Minister	Federal Parliament in Canberra House of Representatives with 150 members each representing their own electorate (including 48 in NSW) Senate with 76 members 12 from each state, 2 from each of the two territories	Foreign Affairs Trade Immigration Borders & Travel Currency Defence Airports Post and Telecommunications Social Services Tertiary Education
STATE (OR TERRITORY)	Premier (or Chief Minister in territories)	In NSW New South Wales Parliament on Macquarie Street in Sydney Legislative Assembly with 93 members representing 93 electorates Legislative Council with 42 members representing the whole State	Fair Trade Hospitals Transport Schools Utilities Public Works Main roads Ports & Waterways
LOCAL AREA	Mayor (or Lord Mayor)	City, Municipal or Shire Council Local government administration offices are located in larger local centres. Councils have between 5-15 Councillors. Each usually represents one section (Ward or Riding) within the local government area.	Local roads and street Libraries Waste disposal Recycling Community services Parks and sporting facilities Swimming pools