Chapter 5 Parliament and The law JESS Flashcards
laws are important because
they control matters of human activity ranging from the seemingly trivial to the most profound
human behaviour is influenced by which 4 factors
- customs and traditions
- morals
- rules
- laws
rules are
the principle or regulation covering conduct, action procedure ect. and are a vital basis of a functioning society
laws are
the formal rules consciously determined by society and are enforceable by the courts
power is limited by
constitutional law and conventions (in a liberal democracy)
power is
separated, checked and balanced. rule of law limits the use of power.
laws govern…
the behaviour and actions of all members of society
jurisdictions means
where the law speaks
2 types of jurisdictions
- geographical
- legal
geographical jurisdiction
refers to the land and sea area’s over which laws apply. Australia is a federal system which means the division of powers defines the geographical jurisdiction of law making i.e. exclusive, concurrent & residual powers.
legal jurisdiction
the area of law that is covered i.e. family law, trade law, criminal laws
what is used to delegate cases between the courts to the right legal jurisdiction
a court hierarchy. eg, murder is tried in the supreme court.
characteristics of laws
- applicable to the whole population
- applicable all the time
- applicable to a geographical jurisdiction
- backed by sanctions
4 main types of law
(superior law to subordinate law)
- constitutional law
- statute law made by parliament
- common law made by courts
- delegated legislation made by subordinate authorities
constitutional law is
fundamental law. the commonwealth constitution establishes and limits the law making power of the federal branches of government.
who interprets and applies the constitution
the high court of Australia
constitutions are above and beyond
parliaments and courts
referendum process is what section of constitution
section 128
referendum process step 1
constitutional alteration bill introduced into parliament
referendum process step 2
the bill must pass through both houses of parliament
referendum process step 3
time frame = no less than 2 months and no more than 6 months after being passed by parliament
referendum process step 4
referendum question (yes or no) posed to the people. anyone on the electoral roll must vote
referendum process step 5
double majority required = more than half the population and 4/6 states
referendum process step 6
governor general gives royal assent
the commonwealth constitution draws its authority from
3 sources of authority and these are stated in its preamble.
a preamble is
an introductory statement to a document. it states the constitutions purpose and sources of authority.
commonwealth consitution draws its authority from
- the people
- almighty god
- the crown
two types of ordinary law
- statute law
- common law
statute law is
law made by parliaments. these are called acts of parliament
bills must be passed through
both houses of the commonwealth parliament and be given royal assent before becoming law.
statutes are superior to common law and will always override it because
- parliament is the primary legislative branch
- parliament has democratic authority - it is elected and representative
functions of parliament
- debate and pass laws or reject bills
- representative role , regular elections keep them accountable
- debate rolls
- responsibility role
elements of the commonwealth parliament
- upper house
- lower house
- the crown (represented by GG)
for a bill to become a proposed statute law it must
pass through both houses of parliament in exactly the same way and receive royal assent.
6 different sources of legislation
- government party policy
- pressure group activity
- public opinion and media reports
- public service submissions
- crises
- individual parliamentarians
2 types of voting in parliament
- vote on voices
- division
vote on voices - parliament voting
speaker asks members to say “aye” or “no. the speaker announces votes after
division - parliament voting
copy and pasted so long
If the vote on voices is challenged by more than 1 member then a division is called. In the case of a division the Speaker/President instructs the Clerk to ‘ring the bells’. The bells will ring (& lights flash) for 4 minutes to allow all members to return to their Chamber. At the end of the 4 minutes the S-@-A will lock the doors & present members must move to either side of the chamber to show how they are voting. Those voting in favour move to the right & those opposing move to the left.
legislative arms of statutes:
-Implement policy proposed by the executive branch of government
- Authorise spending by the executive branch of government
- Amend existing statute
- Repeal existing statute
- Consolidate law by combining several old statutes into one in order to simplify or update the law
- respond to court decisions and common law (by abrogating, codifying, elevating, discretion)
statue law draws its authority from
- democratic source
- constitutional source
democratic authority
Parliament is comprised of elected representatives who make laws
Parliament expresses the will of the people who have delegated and entrusted their representatives with power for a period of time
constitutional authority
The CW Constitution creates a parliament of 3 key parts
1. A bicameral parliament (HOR + Senate) who must both pass a bill in identical fashion before it can proceed
2. A monarch represented by the GG who must give assent before a bill can become a law
3. There is also a ‘division of powers’ – the CW Parliament may only make laws over their ‘heads of powers’ i.e. areas that have been exclusively granted to them or that are concurrent
subordinate law, delegated legislation
Lawmaking power granted by the parliament to the executive. Executive made laws are called regulations, ordinances or instruments.
examples of subordinate authorities
- gov departments (dep of home affairs)
- statutory authorities (reserve bank)
- ministers or member of parliaments portfolios
- executive officials (public servants eg, secretary)
- specialist agencies (Australian security and intelligence organisation)
subordinate authorities are part of which branch and controlled by?
executive, parliament
subordinate authorities have been delegated the authority to…
exercise power on behalf of parliament.
how is law making power delegated?
through acts of parliament
act must:
- Nominates the subordinate authority
- Defines the purpose of the delegated lawmaking power
- Specify the extent of the lawmaking power
- Define the circumstances in which the power is to be used
Subordinate authorities use their power to make…
regulations and ordinances. These ultimately give the executive power to ‘legislate’ without going through parliament.
parliamentary sovereignty
In a p&l system where both common law and statute law are created, if they come into conflict the statute law will prevail(be used). The only exception is the High Court’s interpretation of the Constitution.
how is delegated legislation monitored
the senate standing committee on regulations and ordinances tables report weekly in parliament.
