The Division of Powers
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This fact sheet explains how power is shared across Australia’s three levels of government—Commonwealth, State/Territory and Local—under the federal system created by the Constitution. It outlines the Division of Powers in section 51, the responsibilities retained by the states, the role of local councils, and how High Court interpretation and Commonwealth funding have expanded federal influence. It highlights why dividing power matters for accountability, community responsiveness and protecting people from concentrated authority.
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This explainer outlines how Australian governments used emergency powers to close state borders during COVID‑19, drawing on both Commonwealth biosecurity laws and state public health legislation. It explains why each state’s approach differed, how section 92 of the Constitution protects free movement, and why proportionality, transparency and clear legal authority are essential when governments restrict interstate travel under the rule of law.
Federalism and the Division of Powers in Australia
Federalism is a system of government where power is divided between a central (national) government and smaller constituent governments – in Australia’s case, the six states and two territories.
In 1901, the Australian Constitution established the Commonwealth of Australia, uniting the self-governing colonies into states under a federal system. Part of the Constitution clearly defines the law-making powers of the Federal Parliament, thereby giving some law-making responsibilities to the states. This system is known as the ‘Division of Powers’.
During the Convention debates, Sir Samuel Griffith, said “We must not lose sight of the essential condition that this is to be a federation of States and not a single government of Australia… The separate States are to continue as autonomous bodies, surrendering only so much of their power as is necessary to the establishment of a general government to do for them collectively what they cannot do individually for themselves, and which they cannot do as a collective body for themselves.”
Commonwealth (Federal)
Commonwealth (Federal) Section 51 of the Constitution defines specific areas of law-making power where the Federal Government can legislate. These are called the Heads of Power, and cover matters requiring national coordination such as
defence, immigration, and foreign
affairs.
These are either exclusive powers (i.e., only the federal government can make laws) or concurrent powers (shared with the states).
Since Federation, the areas that the Federal Government can influence has grown because:
The High Court decisions about the interpretation of section 51 of the Constitution have given more power to the Commonwealth to legislate in areas not originally considered by the drafters of the
constitution.Financial Grants: The Commonwealth Government collects taxation revenue and distributes it to the states in the form of grants, often with attached conditions, such as funding for schools and hospitals.
These conditions enable the Commonwealth to influence policy areas that are traditionally managed by the states.
State / Territory
In the Constitution, the remaining areas of lawmaking not explicitly listed in section 51 of the Constitution were left to the States, allowing them to govern on most issues affecting the social and economic well-being of their communities. This enables the differing and unique needs of each state or territory’s communities to be met by laws designed specifically for that geographical area.
Each state retains its own constitution and governs areas such as:
Public transport
Education and healthcare
Law enforcement
Local Government
Local governments (e.g. city councils) are created by state legislation. Their law-making power comes from state based Local Government Acts, and they have the power to make by-laws which apply only to their area and manage issues related to living in local areas. They do not have constitutional recognition and rely on funding and powers delegated by the State.
They manage community services like:
Waste collection
Local roads, parks and recreation
Building approvals
The Role of the High Court
The High Court of Australia plays a central role in maintaining federalism.
It interprets the Constitution and resolves disputes when there is a clash between federal and state laws. Note that under s109, federal law succeeds over state law in the case of a conflict.
As the highest and final court of appeal in Australia, it upholds a unified common law system across Australia. It resolves inconsistencies in decisions made by lower courts across different states, ensuring fairness, consistency and equal treatment across all jurisdictions within Australia.
Why does the Division of Power Matter
Dividing power between the Federal and State governments helps protect people’s rights and freedoms by making sure no single group has too much control. It also allows state (and local) governments, which better understand their communities, to make laws and decisions in those areas that directly affect people’s lives.
Each state retains its own constitution and governs areas such as:
Public transport
Education and healthcare
Law enforcement.
Related Resources
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This explainer outlines Australia’s governance structures and how authority is organised across different institutions and levels of government. It explains how these structures distribute power, support accountability and help ensure decisions are made lawfully and in the public interest.
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This classroom activity uses a flood‑crisis scenario to help students apply the Division of Powers by analysing how local, state and federal governments respond during emergencies. Working in groups, students examine town‑specific crisis cards, identify each level of government’s responsibilities, develop a coordinated emergency plan, and present how cooperation across jurisdictions supports effective disaster management under Australia’s federal system
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The Separation of Powers
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