Overview
This lecture introduces the constitutional foundations of legislative power in Australia, focusing on the doctrines of separation of powers and federalism, and how legislative authority is divided between the Commonwealth and the states.
Separation of Powers Doctrine
- The separation of powers divides government into legislative (makes laws), executive (implements laws), and judiciary (interprets laws).
- Each arm of government checks and balances the others to prevent abuse of power.
- Judicial independence means courts interpret but do not make laws.
- Legislative power is specifically vested in the legislative branch at both federal and state levels.
Constitutional Basis for Legislative Power
- Section 51 of the Australian Constitution lists the "heads of legislative power" for the federal parliament.
- State constitutions also uphold, though less prescriptively, the separation of powers and judicial independence.
- Queensland has a unicameral parliament, but still maintains separate roles for parliament and courts.
Relationship Between Legislation and Common Law
- Legislation can override or significantly change established common law.
- Example: The Civil Liability Acts in various states can alter principles from landmark cases like Donoghue v Stevenson.
- Courts often balance or determine the priority between statutes and common law in specific cases.
Federalism and Vertical Separation of Powers
- Federalism refers to the vertical separation of powers between the Commonwealth and state governments.
- Section 109 of the Constitution states that if state and federal laws conflict, federal law prevails to the extent of the inconsistency.
- Section 108 preserves states' legislative powers on matters not exclusively listed in the Constitution for the federal government.
- "Concurrent powers" allow both state and Commonwealth governments to legislate on the same subjects unless expressly reserved for the Commonwealth.
Key Terms & Definitions
- Separation of Powers — Division of government roles into legislative, executive, and judiciary, each with separate functions.
- Judicial Independence — The judiciary's independence from lawmaking and executive functions.
- Federalism — Principle dividing powers vertically between federal and state governments.
- Concurrent Powers — Areas where both Commonwealth and states can make laws.
- Section 51 — Lists federal legislative powers in the Australian Constitution.
- Section 109 — Federal law prevails over state law in case of conflict.
- Section 108 — Preserves state lawmaking power in areas not covered by federal exclusivity.
Action Items / Next Steps
- Review Sections 51, 108, and 109 of the Australian Constitution.
- Read about the case Donoghue v Stevenson and related Civil Liability Acts in your state.
- Prepare to analyze how courts resolve conflicts between legislation and common law.