welcome to the first video of your second lesson uh and here we will examine the constitutional bases for legislative power in australia so the first concept that we have to understand in order to comprehend why lawmaking power is vested in the legislature is the separation of powers doctrine so this is a doctrine that is entrenched uh quite firmly in the constitutional framework in australia and it basically holds that different arms of god government are vested different roles in governance so by extension of this principle uh the doctrine prescribes that the arms of government check and balance each other so that abuses of power may be uh prevented so what this basically means is that the separate arms of government has not trespassed into the jurisdiction reserved for the other though in practice the overlap between the executives and the legislature does occur quite frequently the uh separation between the the legislative executive and the courts or the judiciary is quite uh firmly upheld so this is known as judicial independence and it's because the judges have been concerned with the powers to interpret the legislation they cannot also have the power to create um so right now in this particular uh lesson we will be looking at the creating of legislation so the powers to create legislation which is reserved specifically for the legislature so broadly speaking the executive power is regards the implementation of laws the legislative powers obviously is regards the creation of law and the judicial power regards the interpretation of law so on a commonwealth or federal level the constitutional basis for law making in australia is vested in the legislative branch of government pursuant to section 51 of the constitution of australia 1901 which lists the heads of legislative power at the federal level and we'll have a closer look at this because this is what we call so if we just spoke about the horizontal separation of powers we're now speaking about the vertical separation of powers between the common wealth and the states state governments so those are two things to wrap your heads around in this particular video so as we established last week the courts and the judges are not lawmakers the constitutional separation of powers doctrine requires the courts to interpret laws as created by the executive and the legislative legislative branch of government the very state constitutions are not as prescriptive in this regard they still exhibit a commitment to the doctrine for example in queensland we are a unicameral system um and law-making power is generally reserved for the queensland parliament but there still remains a strong case for the fact that the convention of separation of power upholds the difference roles between parliamentary courts for example so judicial independence is still very strongly upheld in the state as well as at the commonwealth verbal now if we look if we turn to the weight of legislative balls we can view more specifically the relationship between legislative rules and common law as not being so straightforward as we would like however even in this situation which is not which is far from ideal it is undisputed that legislation has the potential to replace uh or significantly change a whole body of common law on a particular topic so that power is retained by the parliament to change and create new laws and the interpretation powers of reserve to the darkness um so for example in the civil liability act of 2002 at the new south wales level um though the case of personal injuries was still first founded by common law in england in the case of donohue and stevenson in 1932 where the house of laws found that a company that saw ginger bee had a duty of care towards his clients this could be changed uh but this position could be changed by the civil liability acts of different states we have one in uh queensland called pippa personal injuries um legislation basically so we see that each state has the power to overturn but usually they they stick to the principles that are consolidated by courts so we see this complex and biotic relationship between the two maintenance of law in australia common law and statutes and this is because courts are sometimes called upon to determine the priority between different types of statutes by allocating the weight they see fit in a given set of circumstances and that's part of our role as uh students of interpretation as well as legal professionals later um to confer the weight to the legislative rules in light of our understanding of commonwealth principles so that's an important task that we have right now and ahead of us as well let's have a closer look at the vertical separation of powers this is determined by the principle known as the doctrine of federalism and this is another constitutional principle that forms the basis of australian law if the doctrine of separation of powers embodies a horizontal separation as i said uh so separate arms of government the doctrine of federalism uh so because of separate arms of government being the legislative executive and the judiciary the doctor said realism represents the doctrine of federalism represents a vertical separation of powers between the state sorry and the federal government so the states are lower and federal would be the umbrella courts will be called upon in cases where there is a conflict between common law uh commonwealth laws and the laws of australian state and territories the section 109 is the relevant section in the constitution which states that where a law of the state is inconsistent with the law of the commonwealth the latter shall prevail uh and the former shall to the extent of inconsistency be invalid what this means is that if a law enacted by the commonwealth conflicts with the state law then the commonwealth's law overrides the state more to the extent of the inconsistency or overlap so basically what this means is that section 109 of the australian constitution holds that legislative powers are to be distributed between the commonwealth and states in a vertical uh way as i demonstrated prior however the power of the state is expressly preserved in section 108 of the constitution these are also called concurrent powers meaning both states and commonwealth can create laws on the topics covered in these sections so the federal powers under the constitution is preserved under part five of the constitution the legislative heads of powers is contained in section 51 subsections 1-39 and the effect for the commonwealth um heads of powers contains section 51 is to give them exclusive power to create laws on these topics or subject matters the implication being that if not stated in the constitution expressly reserved for the commonwealth in this way uh pursuant to section 51 the subject matter remains a jurisdiction of the state thus outside this list of exclusive legislative powers the states have the power to make laws on topics outside so wherever they see fit and in a way that they see fit according to the formalities and conventions that are obviously uh set out for them this is especially preserved in section 108 of constitution