Chapter V. The States.
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106. Saving of Constitutions
The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.
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The six Crowns still existed after Federation. The Six Parliaments which were the Colonial Parliaments, then became the Six State Parliaments. Likewise, the Constitutions of those States, be they written or not, were explicitly made to continue after Federation.
The Crowns of the States had at the time of Federation and in every case, differently worded but similar absolute plenary powers. One of the consequences of Section 106 is that the Crown which was created at Federation, can not actually tell the States that they can not make a law about a thing. There are interactions with the two sets of laws but Section 106 in saving the Constitutions of the States, those absolute plenary powers were more or less retained by the states.
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107. Saving of power of State Parliaments
Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.
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A colony which had plenary powers to make laws in all cases whatsoever, on becoming a State and thanks to Section 107, also retained absolute plenary powers. There have been some critical arrangements over the years, such as the states declining the power to lay and collect income tax but this is still only really a voluntary arrangement and in reality there are no real impediments to collecting income tax again.
Likewise, when it came to the Uniform Gun Control Legislation which followed after the Port Arthur Massacre, this happened due to a set of agreements between the states which was negotiated by the Commonwealth, rather that the Commonwealth actually having the ability to force its will on the States.
Sections 106 and 107 also have interactions with other sections such as 51 which defines what kind of powers that the Federal Parliament has, and Section 108 and 109 also defines what happens when those powers and laws come into conflict with each other.
Section 107 is also one of those sections which dares to imagine more states than just the original Six. The clause "or establishment of the State" at least admits the possibility that the could be extra states admitted but as yet, we've not seen any.
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108. Saving of State laws
Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State.
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Take careful note of the specific wording of Section 108: "Every law in force in a Colony". Since various adoption and reception acts adopted the then corpus of English Law as having effect in Australia, then this means that Every Law which was in force continued and continues to be in force until such time as that law is repealed of superseded.
That leaves you with some very very old laws which existed on the books; which by virtue of never being addressed by the Federal Parliament or the State Parliaments.
One of my favourite instances of the effect of this, is that Australia does have a Bill of Rights, despite what people may say. Since the Bill of Rights Act 1688 was in force at the time of Federation and has not yet been repealed, altered or otherwise, then that Bill of Rights continues to remain within the corpus of law which has been received. It also means that provisions of the Statute of Marlborough which includes those provisions called the Distress Act 1267 are still in force.
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109. Inconsistency of laws
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
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One of the things that was thought to be of value, which was taken from the United States Constitution, was a Supremacy Clause. Section 109 is that Supremacy Clause. It is pretty straightforward.
The unwritten power of Section 109 is that because the operation of a Commonwealth Law, insofar as much as it relates to an inconsistency between Federal and State Law, effectively hands the power to strike off, to the Commonwealth Parliament. This is the reason why the Marriage Act 1961, could overrule anything with regards whatever positions that the states' marriage acts may have stated.
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110. Provisions referring to Governor
The provisions of this Constitution relating to the Governor of a State extend and apply to the Governor for the time being of the State, or other chief executive officer or administrator of the government of the State.
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I am at a complete loss to know what if anything, that the practical effects of Section 110 actually are. This is an almost non-operative section, with effects that I have no idea what they are.
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111. States may surrender territory
The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth.
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There are at least two instances of note where a State has surrendered territory of sufficient significance to the Commonwealth, that are noteworthy.
The Australian Capital Territory was surrendered to the Commonwealth in 1913, so that the Commonwealth would have a seat of government which was roughly of sensible distance fro both Melbourne and Sydney. New South Wales completely surrounds the Australian Capital Territory; to the point where Canberra Railway Station is actually part of the NSW Regional Rail network.
Two years later in 1915, New South Wales further surrendered Jervis Bay Territory to the Commonwealth and although the laws which apply for civil government in the Australian Capital Territory have effect in JBT, JBT has never been part of the ACT.
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112. States may levy charges for inspection laws
After uniform duties of customs have been imposed, a State may levy on imports or exports, or on goods passing into or out of the State, such charges as may be necessary for executing the inspection laws of the State; but the net produce of all charges so levied shall be for the use of the Commonwealth; and any such inspection laws may be annulled by the Parliament of the Commonwealth.
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This is going to sound daft but Australia has always been deeply cautious about disease enetering its borders. One only needs to drive between capital cities to encounter things like fruit fly exclusion zones in many places. Mostly inspection points are for health reasons though early on, there was the possibility of needing to inspect goods to check to see if they were being imported into one state and being passed though and may have come from nefarious foreign powers.
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113. Intoxicating liquids
All fermented, distilled, or other intoxicating liquids passing into any State or remaining therein for use, consumption, sale, or storage, shall be subject to the laws of the State as if such liquids had been produced in the State.
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This has some interesting effects.
Firstly this relates to the possession and sale of alcohol and other drugs. Section 113 meant that the Commonwealth didn't have to do anything whatsoever about passing uniform laws and let the states deal with these things as they saw fit. Secondly this relates to the production of alcohol and other drugs and also meant that Commonwealth didn't have to do anything whatsoever.
Thirdly and perhaps most craftily, it meant that the Commonwealth could still impose taxation and excise, so long as this was done in a uniform manner. A Commonwealth law would still mean that taxation and excise on drugs and alcohol would be permissible because they would still be subject to the laws as they applied within the state; because of the interaction of Federal and State law.
Also, the Commonwealth got on the job really quickly with the seventh, eighth, and ninth acts passed by the newly minted Commonwealth Parliament being the Beer Excise Act (1901), the Distillation Act (1901) and the Excise Act (1901).
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114. States may not raise forces. Taxation of property of Commonwealth or State
A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State.
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Yeah, nah states. All of those military corps that you used to own are now the property of the Commonwealth. Also, no state armies any more, yo.
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115. States not to coin money
A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts.
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Yeah, nah states. If we want to maintain the faith and credit of the Commonwealth, then we can't have the states issuing their own currency. I imagine that when the framers of the Constitution wrote this, they were looking over their shoulder at Scotland which to this day retains the right and ability to issue Pounds Scots. I also note that at the time of Federation, there may have been some real fears of a state thinking that they had the ability to issue Australian Pounds because there were mints in Sydney, Melbourne, and Perth.
What is curious is that even subject to Section 115, the first issue of Australian coinage proper didn't happen until 1910. The Pound Sterling was the de facto currency and even though Half Sovereigns and Sovereigns had been minted at the various mints. They were Pounds Sterling and actually legal tender right across the British Empire. Britannia ruled the waves and people's pockets.
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116. Commonwealth not to legislate in respect of religion
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
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One of the misconceptions that people have about what a Constitution is and does, is that it should contain some kind of Bill of Rights. I personally think that a Bill of Rights is a monumentally stupid thing to have in a Constitution because if new rights are discovered and/or fought for an won, or older rights expire and/or by operation cause mayhem and destruction, the enumeration of rights ends up being a gravestone and a millstone for future generations. A Constitution is a set of rules which defines what the legal person that has been created can and can not do. Rights as legal claims, should always be secondary and defined by separate pieces of legislation.
Section 116 places a limit on what the Commonwealth can do; specifically it places a limit on the Commonwealth with regards to religion. The implication of Section 116 is that Australia is legally a secular nation; despite what people might say with regards prayer in Parliament. Section 116 also doesn't debar the Parliament from using public monies to fund religious institutions like schools, or making grants to buildings like Cathedrals and Mosques; as these things fall well short of actually 'establishing' any religion.
This section also debars the Commonwealth from using religion as a barrier to employment by the Commonwealth. I suspect that we have had a Jewish Governor-General, I live in an electorate with a Muslim MP, and there have been a number of First Peoples MPs over the years.
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117. Rights of residents in States
A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.
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In theory this section was designed to equalise rights of citizens across the Commonwealth but in practice, this section ended up limiting the rights of first peoples in some states due to the way that obligations and duties were worded. In Queensland for instance, the state of Queensland limited the right of first peoples to vote, limited the rights of migrants to cross borders, and limited the abilities of people from Pacific Islands to work in Queensland. The Commonwealth, which still hadn't actually defined what citizenship in Australia was at law (and wouldn't do so until 1948), simply decided to apply the disabilities or discriminations of a person in one state to all of them.
If someone wasn't actually officially a citizen in Queensland, then they would remain to be officially not a citizen in the other states. The most generous reading of this is that it is devious.
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118. Recognition of laws etc. of States
Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.
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Section 118 has no practical applications. There are interactions with the newly created Commonwealth law and existing State law and provisions about what happens if they are in disagreement but recognition of state law, does not and can not to anything in the real world. This is a subtle distinction to make but I shall unpack this further.
State Law and the States' power to enforce State Law remained. An action done in a state, was and remained subject to the applicable laws of the state. A crime done in a state, was and remained subject to the applicable laws of the state and the punishment that the state might meter out. This did not change. Apart from a few disabilities at law which were created by the Commonwealth Constitution, the states retained in most cases the power to "make laws in all cases whatsoever".
It doesn't actually matter a jot what the Commonwealth chooses to think about State Law. Either there is a convergence where the two sets of law meet, or there isn't. Therefore, Section 118 in practical terms, has no effect.
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119. Protection of States from invasion and violence
The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.
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Arguably the first duty of a nation, is the protection of itself. Section 119 is the explicit direction that there shall be military forces and that they shall act in the event of unpleasantness. On opening day of the Commonwealth, the various State Military Corps were effectively transferred to the Commonwealth; which given that they'd recently been to South Africa to fight in the Boer War as a unified collective unit, wouldn't really have been that difficult to fathom.
Section 119 also explicitly gives the Commonwealth to deploy troops against "domestic violence" which is such an ill-defined term as to be laughable. That can imply the deployment of the military against riots, protests, impromptu militias, cross-border unpleasantness (though you'd hope that they'd all be on the same side), and even that curious incident when Commonwealth forces were deployed against Emus. As far as I know, the Emu War was the only military conflict fought by the Commonwealth on Australian soil and it resulted in a decisive Emu victory.
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120. Custody of offenders against laws of the Commonwealth
Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision.
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Although there are two sets of law (being both State and Commonwealth), evidently the Commonwealth did not want the extra expense of housing prisoners and criminals. Truth in point, there is little net benefit in a duplication of these kinds of services when in practical terms, the actual provision and maintenance of these services is identical.
If you are in the pokey for a State crime, that's not that much different for being in the pokey for a Commonwealth crime.
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