Overview
This lecture introduces the constitutional foundations of legislative power in Australia, focusing on the separation of powers and federalism.
Separation of Powers Doctrine
- The separation of powers doctrine divides government roles into legislative, executive, and judicial branches.
- Each arm of government checks and balances the others to prevent abuses of power.
- Judicial independence means courts interpret laws but do not create them.
- The executive implements laws, the legislature creates laws, and the judiciary interprets laws.
Constitutional Framework for Lawmaking
- Lawmaking power at the federal level is given to the legislature by Section 51 of the Australian Constitution (1901).
- Horizontal separation refers to powers divided among legislative, executive, and judicial arms.
- At the state level, constitutions are less prescriptive but still uphold separation of powers and judicial independence.
Relationship Between Legislation and Common Law
- Legislation can replace or change common law on specific topics.
- Courts interpret and prioritize between types of statutes and common law in case of conflicts.
- Example: State Civil Liability Acts can override common law principles like those established in Donoghue v Stevenson (1932).
Federalism and Vertical Separation of Powers
- Federalism refers to the vertical separation of powers between the Commonwealth (federal) and state governments.
- Section 109 of the Constitution: Commonwealth law prevails over inconsistent state law to the extent of the inconsistency.
- Section 108 preserves state legislative powers for areas not exclusively given to the Commonwealth.
- Some powers (concurrent powers) can be legislated by both states and the Commonwealth.
Key Terms & Definitions
- Separation of Powers — Doctrine dividing government roles among legislative, executive, and judicial branches.
- Judicial Independence — Courts' authority to interpret, but not create, laws.
- Federalism — Division of powers between federal and state governments.
- Section 51 (Australian Constitution) — Lists federal legislative powers.
- Section 109 (Australian Constitution) — Federal law overrides inconsistent state law.
- Section 108 (Australian Constitution) — Preserves state legislative powers.
- Concurrent Powers — Areas where both Commonwealth and states can create laws.
Action Items / Next Steps
- Review Section 51, 108, and 109 of the Australian Constitution.
- Read about the Civil Liability Acts in various states.
- Prepare to analyze case studies involving conflicts between federal and state laws.