1.4 The power of the Parliament of Queensland
- 1.4.1 The plenary power
- 1.4.2 Extraterritorial application of the plenary power
- 1.4.3 Relationship with the Australian Constitution
The Parliament of Queensland is authorised to make laws for the peace, welfare and good government of Queensland (Constitution Act 1867, section 2). This is a plenary or full power. However, the power is subject to the limits and guarantees found in the Commonwealth Constitution.
Most of Queensland’s State constitutional framework is now set out in the Constitution of Queensland 2001. This Act consolidates much of Queensland’s original constitutional legislation and contains signposts to constitutional legislation that was not consolidated in the Act because of procedural requirements.
The Parliament of Queensland consists of the Queen and the Legislative Assembly. Queensland is the only jurisdiction in Australia that does not have an upper house, with the Queensland Legislative Council having been abolished in 1922. In Queensland, the Queen’s role in the Parliament is performed by the Governor.
The Parliament of Queensland Act 2001 deals with the machinery of the Parliament of Queensland.Generally, legislation applying in Queensland must be made by, or authorised by, the Parliament of Queensland.
Commonwealth legislation also applies in Queensland and legislation of other Australian jurisdictions may apply in Queensland if it has extraterritorial effect. Very occasionally, older legislation of New South Wales and the United Kingdom may apply because of Queensland’s colonial history. Relevantly, the Australia Act 1986 (Cwlth and UK), section 1 provided that no Act of the Parliament of the United Kingdom passed after the commencement of the Australia Act extends to the Commonwealth, a State or a Territory.
The plenary power can even have an effect outside Queensland if there is a sufficient connection with Queensland. Under the Australia Act 1986 (Cwlth and UK), section 2(1), the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extraterritorial operation.
An important example of general provisions that have extraterritorial effect concerns the criminal law.
Sections 12(2) to (4), 13, and 14 of the Criminal Code apply Queensland criminal law to acts or omissions, and persons, outside Queensland if the preconditions expressed in the section that connect the acts or omissions, and persons, to Queensland are met.
Also, the application of criminal law offshore from Queensland is dealt with by a cooperative scheme of legislation that relies on the extraterritorial power. Under this scheme, Australian jurisdictions have combined their extraterritorial powers to enact laws in the same terms applying the substantive criminal law of each State offshore from each State. The application of the laws of criminal investigation, procedure and evidence is also dealt with by the scheme. Provision is also made for an intergovernmental agreement dividing responsibility for administering and enforcing the law relating to maritime offences. See the Crimes at Sea Act 2000 (Cwlth), the Crimes at Sea Act 2001 (Qld) and corresponding legislation in other Australian jurisdictions.
For additional power to apply State law offshore, see the material about the offshore settlement under Chapter 1.4.3.
The Queensland Parliament’s plenary power is subject to the Australian Constitution. Under the Australian Constitution only the Commonwealth Parliament may make laws about a particular list of matters. Also, in relation to another list of matters, if the Commonwealth Parliament makes a law, the law overrides a State law on the same matter, and the State law is invalid to the extent it is inconsistent with the Commonwealth law.
Also, there are Commonwealth Acts that confer jurisdiction, rights and power on the State, subject to those Commonwealth Acts. For example, in a legislative framework commonly referred to as the ‘offshore settlement’, the two Commonwealth Acts mentioned below confer jurisdiction, rights and powers on the State in relation to offshore matters. The information set out below is indicative only, and the relevant Acts must be read carefully to understand the limitations placed on the State by the Commonwealth Acts.
Coastal Waters (State Powers) Act 1980 (Cwlth)
This Commonwealth Act extends the legislative power of the State to the making of laws having effect offshore from the State and beyond the territorial limits of the State.
Coastal Waters (State Title) Act 1980 (Cwlth)
This Commonwealth Act directly vests in the State right and title to property in the sea-bed, and the space above the sea-bed, offshore from the State and beyond the territorial limits of the State.The Queensland Parliament has, in the Acts Interpretation Act 1954, part 12, formally exercised power under the Coastal Waters (State Powers) Act 1980 (Cwlth). This follows previous reliance on the declaration in the Acts Interpretation Act 1954, section 9(1)(a).