Australian Advocacy Group

Natalie Davis is a Queensland Teacher, who ran as a candidate for the Federal Seat of Wright in the 2025 Federal Election. Contact: Natalie.education@gmail.com provided this constitutional artical for ‘The Australian Advocate’, December 2025 edition.
Thanks heaps Natalie from all the AAG members…….

Most Australians believe that the Federal Government is a body which exercises authority over the States. Most believe that the hierarchy of authority is Federal, State and Local Council. This is not true. 

The federation of Australian Colonies created a Federal Government with a very limited and defined set of responsibilities. In his famous Tenterfield oration on 24^th October, 1889, Sir Henry Parkes outlined the reasons for federation: the size of our population and spread across a vast territory, the need to amalgamate our troops (since empire building was still rife) and to establish a federal rail line.

Crucially, each individual Colony possessed the sovereign authority to say, ‘No’ to federation. This is why during the 1890s when the process was being discussed and the Constitution drafted, each Colony had representation, and, furthermore, held individual referendums to determine whether they would enter into a federation. 

Now, you can only give someone authority that you already possess. So, when the Colonies agreed to federate—leading to the passage of the Commonwealth of Australia Constitution Act 1900 (UK) and their recognition as “Original States”—they did not hand over all power to the new Federal Government. Instead, the Constitution, which the people voted to adopt, specified exactly what aspects the new Federal Government would exercise responsibility over. There was no carte blanche transfer of authority. The States simply delegated certain responsibilities to the Federal Government for the common good of the people in every State and retained the rest. 

Put simply, the Australian Constitution is the rule book governing the Federal Government. But what happens when the people of the nation are not taught the rules? The pocket constitution I have at home says in the Foreword “The Australian Constitution is the single most important document in Australia’s history.” If this is true, why, then, is it never taught to the people? Surely, it should be taught to our children as part of their Civics curriculum? It is not. Certainly, the Constitution might be mentioned, but to know what it says is another matter altogether. This presents a disastrous situation!

Today we face a serious issue: over many decades the Commonwealth has assumed responsibility for areas never assigned to it, while State Governments—whether through ignorance of the Constitution or the lure of federal funding—have allowed this drift to occur. Irrespective of the reason, the overreach is unconstitutional. 

There are aspects such as education and energy which have been transitioned into the Federal sphere, which are entirely State responsibilities. Meanwhile, matters explicitly described as “absolutely free” under Section 92—such as trade and transport—are routinely restricted. Vehicle registration requirements, interstate transport limitations, heavy-vehicle levies, and border closures (as seen during COVID-19 and more recently in the National Fire Ant Eradication Program) exist contrary to the Constitution. Section 92 is clear: road travel and interstate trade are to be absolutely free (free of cost and unincumbered).

Section 100 further reinforced the limits on Commonwealth power regarding the right to use water: “The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.” There is no ‘out’ here; this Section unequivocally affirms the rights of farmers and States regarding the reasonable use of water to irrigate! 

These are only a few examples of Governments failing to abide by our Australian Constitution. Ultimately, no Act—State or Federal—is valid if it is inconsistent with the Constitution. That principle exists to safeguard the people.

So, how is the Federal Government getting around this and justifying the expansion of its authority? Increasingly, it relies on its power over external affairs using internation agreements to influence domestic matters. This is how the United Nations, World Health Organisation, World Economic Forum and other self-appointed international bodies are taking control over the affairs of nations around the world. However, even then, the Federal Government only has the power to make laws for the “peace, order and good government of the Commonwealth in respect to ‘external affairs’ – this does not give the Federal Government the authority over every aspect of society, nor allow them to delegate their authority to another body to dictate the laws of our nation or States.

Section 123 establishes very clearly, that if a State wants to increase, decrease or alter in any way the limits of the State, that this can only happen if the Parliament of a State consents, in addition to the majority of the electors of the State voting “upon the question…” In other words, voters are voting on a specific change to the power of the State, they are not just voting for a Party. (On a side note, ‘parties’ are not mentioned in the Constitution). 

Section 123 exists to protect the States from Federal encroachment. This principle was reinforced in the 1947 case Melbourne Corporation v Commonwealth, which held that no Act passed by the Commonwealth is legitimate if

1. places a special burden on the States; or
2. significantly impairs, curtails or weakens the capacity of States or State agencies to exercise their constitutional powers or functions.

Applying this, if we look at States and their ability to mine and use coal, such as in the case of Queensland and Western Australia, the Commonwealth has no authority to restrict a State’s ability to mine or use coal or other resources, for in doing so, they are weakening the capacity of the States to exercise their constitutional powers. Since the Constitution does not grant the Commonwealth responsibility over energy, Federal interference in this area amounts to an assumed—rather than legitimate—power. 

As you can see, it is vitally important that Australians begin to educate themselves about what the Constitution says, for we truly are the check and balance of power in this nation. Importantly, it is time that our State and Federal Parliamentarians go back to ‘playing by the rules’.