Law Making

Question 1

What are the two types of bills?

Answer 1

Public Bills

Private Members’ Bills

Question 2

What are the three stages of making a parliamentary Act?

Answer 2

Pre-Parliament Stage
Parliament Stage
Post Parliament Stage

Question 3

What is a public bill?

Answer 3

Bills initiated by ministers as a part of the Government’s legislative program. They form the overwhelming number of Bills debated and passed in parliament.

Question 4

What is a private members’ bill?

Answer 4

Bills initiated by members of parliament who are not ministers.

Question 5

What is a supply bill?

Answer 5

These are Bills drafted on instructions of the Federal Treasurer and originated in the lower house by constitutional rule. They must be passed by parliament before the Government can collect income taxes and incur expenditure on government services. Supply Bills must originate in the lower house and the upper house cannot amend them.

Question 6

What is an ordinary bill?

Answer 6

Any Bill that is not a supply Bill. They commence as original Bills but once enacted can be altered by the passage of an amending Bill.

Question 7

What is the pre-parliament stage

Answer 7

This is the stage where the idea for a new law evolves and it is drafted into legislative form, called a Bill.

Question 8

What is the parliament stage?

Answer 8

The Bill must pass through three formal reading stages in the same form in both houses before being submitted to the Queen’s representative for the royal assent, at which stage it becomes an Act.

Question 9

What is the post parliament stage?

Answer 9

When the Minister for portfolio is ready for the Act to be implemented it is proclaimed at Executive Council for the commencement date to be published in the Government Gazette.

Question 10

What is a deadlock?

Answer 10

These occur when an upper house rejects a public Bill but a compromise is not usually possible.

Question 11

How are deadlocks resolved at the federal level?

Answer 11

The Australian Constitution has a special provision in section 57 to resolve a parliamentary deadlock. A parliamentary deadlock is created when the Senate twice rejects the same Bill, twice passed in the House of Representative with a lapse of three months between each rejection. Once a deadlock exists (called a ‘constitutional trigger’) the prime minister can advise the governor-general to dissolve both Houses of the Commonwealth Parliament for a general election to be conducted (Double Dissolution). If the Government returns to office, and the same Bill is rejected again in the Senate, the prime minister can advise the governor-general to call a joint sitting in the House of Representatives where both Houses sit to debate the Bill. Obviously, if the opposition gains Government the disputed Bill will lapse.

Question 12

How are deadlocks resolved at the state level?

Answer 12

In SA, disagreements and deadlocks are usually resolved at a Managers’ Conference. These Conferences are comprised of members from both Houses of the Parliament and the major political groups, who meet outside of parliament to reach a compromise.

Question 13

What is delegated legislation?

Answer 13

Legislation made in the executive arm by delegated authorities, including:
Executive Council
Government agencies
Government departments 
Local government councils

Question 14

What is an Enabling Act?

Answer 14

As regulations are made by government bodies in the executive arm, most of which are unelected, power must be ‘delegated’ to an executive authority by an elected body.

This is achieved by parliaments delegating lawmaking authority in enabling (or parent) Acts.

Question 15

What are the strengths of delegated legislation?

Answer 15

relieves the workload of parliament
decentralises law making (primarily to elected local government councils)
can be made by people who have technical expertise
administrative convenience
to meet emergency situations

Question 16

What is the process of making delegated legislation (CDAPT)

Answer 16

Consultation

The delegated authority must consult with the ‘community’ which the regulation will affect. eg Councils must consult local residences before a new regulation can be proclaimed.

Drafting

The Office of Parliament Counsel drafts a proposed regulation in legal form on advice from officers of the delegated authority.

Approval

The minister, cabinet or a ministerial appointee, approves the regulation for proclamation.

Proclamation

The regulation is proclaimed by Executive Council on advice of the minister and its commencement date is published in the Government Gazette.

Tabling

A state regulation must be tabled in the SA Parliament within 14 days of proclamation.

Question 17

What are the weaknesses of delegated legislation?

Answer 17

often made by unelected government officials who are not held unaccountable to the community
often fragments the source of lawmaking eg regulations relating to the building industry
originate from a number of different agencies
often creates increased administrative ‘red-tape’ which leads to confusion and inefficiencies
access to the originators of regulations becomes more difficult

Question 18

What is case law?

Answer 18

Case Law is made by judicial officers (primarily justices or judges) in courts to the extent necessary to resolve a matter brought before a court for adjudication.

Question 19

What are the two ways of making case law?

Answer 19

Creation of legal principles (often called legal rules) in the absence of a statutory rule

Creation of legal principles that give legal meaning to codified law, commonly called statutory interpretation.

Question 20

What is judicial precedent?

Answer 20

A legal principle, or legal rule, created by a court becomes a precedent that other courts use as a guide when deciding cases before them. Collectively, precedents are called case law. Precedents are divided into two classifications:

Binding precedents that courts must follow

Persuasive precedents that courts can consider but are not bound to follow.

Question 21

What is the principle of stare decisis?

Answer 21

The British case law system is founded on the principle of stare decisis.

Essentially this means that once a matter is decided in law (ie a precedent is created) the logic of that legal principle must be followed by other courts so that ‘like cases are decided in like ways’. The principle brings consistency and certainty to the application of case law.

Question 22

What are the two types of precedents?

Answer 22

Binding precedents
Precedents set by superior courts that courts lower in the same court hierarchy must follow.
The majority decisions of a Full Court or Full Bench are binding precedents.
Persuasive precedents
Those precedents that courts do not have to follow, whatever their standing is in a court hierarchy.
The following are persuasive precedents:
precedents created in lower courts that higher courts are not bound by
precedents created in other court hierarchies (interstate and overseas)
minority decisions of Full Courts or Full Benches.

Question 23

What is the process for making case law?

Answer 23

A case (where there is no relevant precedent) is lodged at a court
Two parties put their opposing legal arguments to the judge, supported by their authorities
Judge sums up his/her understanding of the two parties’ legal arguments
Judge adjourns the trial or hearing to write the judgment
Judgement is delivered to the readjourned court
Losing party can have the judgment (ie the legal precedent embodied in it) reviewed in an appellate court.
This could include an appeal, by leave, to the Full Court of the High Court

Question 24

How is case law supervised?

Answer 24

Legislative:
Complementary Legislation
Remedial Legislation

Judicial Supervision: 
Reversal 
Overruling
Disapproval 
Distinguishing

Question 25

Case Law Strengths

Answer 25

Judges can create a law in the absence of a statute law to bring a finality to a case, so that any dispute of a unique nature can be resolved.
Judges can depart from precedent to bring about just outcomes
Judges are held accountable to appellate courts
Elected parliaments reserve the sovereign power to override case law

Question 26

Case Law Weaknesses

Answer 26

Judges are appointed (ie unelected) and are not held accountable to the community
High Court is not subject to judicial review by a higher court
Australian parliaments cannot overrule constitutional case law created by the High Court re its interpretation of the Australian Constitution.
Most Australians do not take an active direct or indirect role in making case law as they can with parliament-made-law. ie an undemocratic model of lawmaking.

Question 27

What is the doctrine of precedent?

Answer 27

Doctrine of precedent is the judicial practice that gives practical application to the principle of stare decisis. The doctrine dictates that lower courts are bound by the precedents created in the superior courts in the same court hierarchy. As with the principle of stare decisis, the doctrine brings consistency, certainty and predictability to the application of case law, and therefore case outcomes are more likely to be fair and just.