FOL - Topic 5 Flashcards
Colonisation and Parliament in Aus
- relationship between Eng and Aus started in 1770; Cook arrived on the east coast
- 1788, The First Fleet arrived
- treated as settled land, inherited Eng laws
- Australian Courts Act 1828 (UK) clarified the reception of Eng law
- between 1850-1867, colonies granted fully elected parliaments
- before colony parliaments, only British parliament could make laws for them
Broad history of Aus parliament
- colonisation
- Federation
Broad legislative process
- Proposals for legislation
- Cabinet approval
- Drafting
- Passing through Parliament
- Royal assent and commencement
Sources for legislative proposals
- majority from government (including the Cabinet)
- government departments
- parliamentary committees
- law reform commissions
- individual MPs (relatively rare)
Order of proceedings in the Lower House
- initiation
- First Reading –> formality
- Second Reading –> reasons for provisions
- Second reading debate
- Vote
- Detailed consideration –> bypassed if no MP objects
- Third Reading –>
- Passed to Upper House
Cabinet approval
- all sources must be considered by the Cabinet
- most proposals presented to the Cabinet by the Minister in an area, in the form of a report, not a draft law
Drafting
- before each sitting, gov forms a program of Bills to be drafted and allocates priority
- then sent to the Office of Parliamentary Counsel to be drafted and prepared in time for the sitting
- the drafter needs to write clearly, consistent with stat interp and accurately translate policy into law
- once drafted, sent to other gov departments for comments/changes
General process for delegated legislation
- Drafting and consultation
- Explanatory statement
- tabling and review
- registration and commencement (day after registration, or on another specified date)
Differences between legislation and case law
- legislative bodies can act proactively, unlike courts
- legislation involves preventative laws
- legislative laws are prospective, case laws are retrospective
- legislative rules expressed in fixed form, rules in case law expressed in variety of ways
Financial scrutiny of legislation
Parliamentary Budget Office (PBO)
- independent
- analysis and costings of policy proposals, budgets and election promises
- aid the democratic process by making info available to voters
Senate Legislation committees (‘Estimate committees’)
- financial accountability
- public hearings after budget, near end of calendar year, and in Feb the following year
Types of statutes
- Public and private (very rare) Acts
- Codes (rare in Aus)
- Uniform laws
- Consolidations
- Re-printed Acts
- Declaratory and validating Acts
- Omnibus and cognate Acts
Interpretation of Legislation Act 1984 s 10A(1)
If an Act includes the day it comes into operation, it confers power on the Governor in Council to fix by proclamation in the Government Gazette a day for it to come into operation
Interpretation of Legislation Act 1984 s 10A(3)
If an Act has no provision for commencement, it is taken to provide for the provision to commence on:
- a day to be proclaimed
- the first anniversary of the passing of the Act, whichever is earlier
Interpretation of Legislation Act 1984 s 10A(4)
If the Act makes no provision for the commencement of the Act or of more than one provision of the Act, must be taken that the Act will come into operation on:
- a day/days to be proclaimed
- the first anniversary of the passing of the Act, whichever is earlier
Interpretation of Legislation Act s 11(2)
If an Act confers power on the Governor to proclaim an Act to commence, doesn’t commence until it has been proclaimed
