Hello, I am quite confused about concurrent law-making powers (Unit 3 AOS 2). Can anyone help with this?
First up, I don't really understand why we have them. How is it a good thing? Wouldn't it be more sensible to just have exclusive (Commonwealth) and residual (State) powers?
Secondly, is my answer to this question below wrong or just not the best answer?
Q: How can s. 109 be seen as a restriction on the states' power?
A: Section 109 may be seen as a restriction on states' power because it limits the state's ability to make laws in areas of concurrent power (eg marriage) unless the Commonwealth also creates the same law.
(The suggested answer was that s. 109 tends to take powers from the states and give it to the Commonwealth.)
Hey Notarobot!
With regards to your first question, I'm not 100% sure what the justification of having concurrent law-making powers is, but I guess:
a) It saves the Commonwealth time and resources,
b) Some may argue that certain concurrent areas of law-making power are better left to the states (because of the differences between each state), and
c) Changing the division of powers in such a way would involve a very, very significant alteration to the Constitution.
With your second question:
The first part of your answer is correct, but the second part "unless the Commonwealth also creates the same law" is a bit iffy. Section 109 acts as a restriction on the law-making power of the states, because it means that in the event that there is an inconsistency between a law of the Commonwealth and a law of a state Parliament (in an area of concurrent law-making power), the law of the Commonwealth will prevail to the extent of the inconsistency between the two laws.
There are also a number of other arguments and points to make regarding why section 109 does and does not restrict the states, but for this question, the above should suffice.
Best of luck!