The original intention for residual powers
- According to Greg Craven, the founders of the Australian Constitution intended to protect the powers of the states by conferring strictly limited powers upon the Commonwealth. This meant that, even if the central government did want to invade the spheres of the States, it would be prevented from doing so by the legislation. The Senate also was intended as a States-protective mechanism. If the popularly elected House of Representatives dominated by the larger States attempted to have the Commonwealth strain against the limits of its legislative power, the States’ House would intervene in the federalist interest. Furthermore, if these two protective devices failed to prevent the Commonwealth frommoving into the powers of the States, the High Court would intervene.
- The non-enumerated and unlimited nature of the residual powers was intended to be the protection of those powers, but that is not how it has functioned in practice. Before 1920, the High Court interpreted the specific powers narrowly in order to protect the residual powers. In 1920, in the EngineersCase, this doctrine was discardedand the balance has swung towards theCommonwealth since. The residual powers, because they are not enumerated anywhere, are now the casualties of the specific powers.
