Overview
This lecture introduces the constitutional foundations of legislative power in Australia, focusing on the separation of powers and the division of law-making authority between the Commonwealth and the states.
Separation of Powers Doctrine
- The separation of powers doctrine assigns distinct government functions to the legislature, executive, and judiciary.
- This doctrine is embedded in Australia's constitutional system to prevent abuse of power.
- Legislative power involves making laws, executive power involves implementing them, and judicial power involves interpreting them.
- Judicial independence means courts interpret law but do not create it.
Federalism and Distribution of Law-Making Power
- Horizontal separation refers to the division between legislative, executive, and judicial branches.
- Vertical separation (federalism) divides powers between the Commonwealth (federal) and state governments.
- Section 51 of the Constitution lists areas where the federal legislature can make laws.
- Section 108 reserves the remaining powers for the states, called concurrent powers when both state and Commonwealth can legislate on the same matter.
The Relationship Between Legislation and Common Law
- Legislation can replace or alter common law on specific issues.
- Courts interpret and prioritize statutes and common law based on the case circumstances.
- An example includes state civil liability acts modifying the common law principle from Donoghue v Stevenson on duty of care.
Resolving Conflicts Between Commonwealth and State Laws
- Section 109 of the Constitution specifies that Commonwealth law overrides conflicting state law to the extent of the inconsistency.
- Outside of exclusive federal topics, states retain authority to legislate on remaining matters.
Key Terms & Definitions
- Separation of Powers — Doctrine dividing governing powers among the legislature, executive, and judiciary to maintain checks and balances.
- Judicial Independence — Principle that courts interpret but do not create law.
- Federalism — Constitutional structure dividing powers vertically between federal and state governments.
- Section 51 (Constitution) — Lists Commonwealth law-making powers.
- Section 108 (Constitution) — Preserves state's residual legislative powers.
- Section 109 (Constitution) — Commonwealth law prevails over conflicting state law.
- Concurrent Powers — Areas where both federal and state governments can legislate.
Action Items / Next Steps
- Review Sections 51, 108, and 109 of the Australian Constitution.
- Study examples of overlapping federal and state legislative authority.
- Prepare to analyze how courts resolve conflicts between statutes and common law.