What is legislative power?

Legislative power in Australia is the authority to make laws, vested by the Constitution in the federal Parliament (Chapter I, sections 1 to 60) and by state and territory constitutions in their respective parliaments. Legislative power is the formal mechanism through which elected representatives make the rules that govern Australian society.

At federal level, legislative power is vested in the King (the Governor-General representing the King for assent purposes), the Senate, and the House of Representatives, collectively called the Parliament. The Parliament passes laws on the matters listed in section 51 of the Constitution (concurrent powers shared with the states) and a few matters listed in section 52 (exclusive federal powers). The Commonwealth's heads of power include trade and commerce, taxation, defence, immigration, marriage and divorce, corporations, telecommunications, external affairs (including treaty implementation), and many others. Where state and federal laws conflict, the federal law prevails under section 109 of the Constitution.

State parliaments have a general legislative power within their state, subject to the federal Constitution's exclusive heads of power, the section 109 inconsistency rule, and any specific federal legislation that occupies a field. State parliaments cover schools, public hospitals, police, courts, criminal law (most criminal offences are state matters), residential tenancies, planning, and the great majority of everyday law that affects individual Australians. Territory legislatures have similar powers, subject to the federal Parliament's section 122 override.

Legislative power also extends to delegating subordinate law-making to the executive through regulations, rules, orders, and by-laws. The Legislation Act 2003 and equivalent state legislation regulate this delegation, requiring publication of legislative instruments, tabling in Parliament, and the possibility of disallowance by either House. Limits on legislative power include the Constitution itself (interpreted by the High Court), the implied freedom of political communication, the limits in section 51 and elsewhere, the separation of powers preventing Parliament from exercising judicial power, and various specific protections in the Constitution including section 116 on religion, section 117 on discrimination based on state of residence, and section 51(xxxi) on acquisition of property on just terms.