Legislative Power & Australian Constitutional Framework

Flashcards covering the separation of powers, legislative supremacy, federalism, and key constitutional provisions relevant to Australia’s legislative framework.

What are the three arms of government in the Australian separation-of-powers doctrine?

The Legislature, the Executive, and the Judiciary.

Why is the separation between the Judiciary and the other two branches kept especially strict?

To preserve judicial independence so that judges interpret and apply law without also creating it.

What is the primary function of the Legislature?

To create new law (make statutes).

What is the primary function of the Executive?

To administer and implement law.

What is the primary function of the Judiciary?

To interpret and apply law.

Which section of the Australian Constitution lists the heads of Commonwealth legislative power?

Section 51.

How does the doctrine of legislative supremacy affect common law?

Parliament can replace, override, or substantially alter common-law doctrines on any topic.

Name one statute that modified common-law negligence principles created in Donoghue v Stevenson.

Civil Liability Act 2002 (NSW) or Personal Injuries Proceedings Act (PIPA) (Qld).

What structural principle creates a vertical division of power in Australia?

Federalism (vertical separation of powers).

Under federalism, how are powers divided?

The Commonwealth has enumerated powers; States retain residual powers unless overridden.

Which constitutional provision protects residual State legislative power?

Section 108 of the Constitution.

What does section 109 of the Constitution provide?

If a State law is inconsistent with a Commonwealth law, the Commonwealth law prevails and the inconsistent part of the State law is invalid.

What is meant by ‘concurrent powers’?

Areas where both Commonwealth and State Parliaments can legislate, subject to the section 109 override.

Give an example of a State with a unicameral legislature that still upholds judicial independence.

Queensland.

How do courts resolve clashes between Commonwealth and State legislation?

By applying section 109 to determine which law prevails and to what extent.

What does the horizontal separation of powers ensure for each arm?

Parliament’s supremacy to make statutes, courts’ independence to interpret them, and the Executive’s authority to enforce them.

What key takeaway summarises the relationship between statutes and common law?

Statutory law ultimately prevails; courts interpret statutes and fill gaps left by Parliament.

Why can Ministers simultaneously be part of both the Legislature and the Executive?

Practical overlap is accepted (e.g., Parliamentary Ministers also sit in Cabinet), though formal separation of powers exists.

What constitutional sections together outline the distribution of legislative powers in Australia?

Sections 51, 108, and 109.