Lecture 2: Legislation as a source of Law Flashcards
Australian Law
-based of English law or Common law which allows judges to make laws that are not in existence
two major bodies in Australia with law-making powers
- the courts
- legislatures and local gov. councils
legislature in state territories called:
legislature
Common wealth and state legislature called:
parliament or legislature
legislature, parliament
-elected body that makes the law
commonwealth
-laws go across Australia
local level have:
council
series of rules made or published by legislature are called:
act, statute, legislation, inaccement, statutory law
What do councils make
bilaws
identifying legislation
- each act has a title that describes the content or rules
- year legislature passed legislation
- jurisdiction
each state and territory legislature has a general legislative power to:
make law for peace, order and government but only in their state or territory
state and legislature power share some powers with:
Commonwealth parliament
Commonwealth parlaiment
- have less general legislative power than the state and territory governments
- have limited subject matter to make the laws
- restricted to section 51 of the Constitution of what they can do
- federation of Australia stated that federal parliament have limited power on what they can legislate on
- some power is exclusive to the Commonwealth while others are shared with state and territory governments
In case there was an issue between a Commonwealth and state law
- if there is inconsistency between what the federal law and the state law claims, federal law prevails and state law is viewed invalid and then go to High Court to take out the part of legislation that is deemed invalid
- if there is not inconsistency, two laws peacefully exist
- federal gov (Commonwealth) will always prevail even if state legislation went first
- disputes between state and federal parliament is very common
Section 52 of the COnstitution
-dictates what state and territories can make laws on
Commonwealth legislation
applies in all parts of Australia
local governments or council
- established by state and territory governments
- have specified powers to make laws called by-laws
by-laws
- made by local government or council
- are invalid if they are inconsistent with state or federal law or if they exceed the powers given to the local gov.
- disputes between state and local law is rare
legislative process
- bill
- first, second and third reading of a bill
- royal assent
- commencement
bill
-piece of draft legislation seeking approval to become law
first reading of bill
Minister reads out bill title and vote is taken; no debate at this stage
second reading of the bill
- Politicians are given their own copy of the reading
- Minister makes a speech that gives purpose, what it is to resolve, and explain the sections
- discussion
- voting occurs (usually majority voting)
- Bill goes off to committees and provide feedback
third reading of the bill
- third reading of the bill if everything goes good
- if 51% vote in favor of the bill, it goes to the second House of Parliament
royal assent
- bill is sent to the Queen’s represent, Governor General, to receive royal assent
- by custom, he/she will use a rubber stamp and give approval to all bills placed in front of them
- Governor General allowed to say that they don’t like something and won’t sign it but that doesn’t really happen
commencement
- the day the act becomes operation
- usually put in legislation
- no date, then it commences 28 days after receiving approval by royal assent
bi-cameral parliament (two house parliaments)
-many states have this type of parliament
unicameral parliament
-3 territories (NT, Norfolk Island, and Australian Capital Territory) and Queensland
Queensland due to not liking the efficiency of two houses
Territories due to the small population
commonwealth house names
lower house: House of Rep (vote in 1 person)
upper house: Senate (12 politicians elected for every state to represent the people in the House)
States that have the legislative assembly as their lower house and legislative council as their upper house
-NSW, VIC, WA
States that have house of assembly as their lower house and legislative council as their upper house
-SA, TAS
state and territory that only have the lower house which is called the legislative assembly
-QLD, NT, Norfolk Island, and Australian Capital Territory
House of origin
- house where legislation is first introduced
- can be either the upper or lower house, with some exceptions
House of review
- the house that is opposite the house of origin
- usually makes changes (amendments) which the House of origin have to look at and agree to
Houses contain
- 2 major political parties
- but also have independents or smaller party
- lower house usually do not have quite enough of one party to get all their laws passed
- politicians bring in draft legislation
Outline of the legislative process
- proposal for new legislation
- procedure in the House of Origin
- Procedure in the House of Review
- Final stages before the Bill becomes operational as law
Outline of the legislative process in detail
- Office of Parliamentary draft person write up legislation for politician to take to Parliament
- usually draft is sent to lower house
- gets approved and sent to upper house
- still not law yet
proposal for new legislation
- identify the need for new law
- political process
- development of specific proposal
-make sure the draft makes sense
-one politician is responsible for bringing draft to Parliament
Minster-senior Parliament member responsible for subject area reads out draft
identifying the need for new law
-circumstances or beliefs give rise to particular ideas and policies that require change to the law
political processes
-a decision is taken by those with political power to introduce new proposals into the legislature
development of specific proposal
- A bill is drafted by parliamentary draftsperson
Amended bills
- House of origin does not agree to the changes or amendments to House of review twice then the government usually just give up
- If the government really want the law than the gov. of the day is allowed to have a general election to try and get enough favorable results (not common)
Procedure in the House of Review
- initiation, first reading, seconding reading, committee, and third reading
- un-amended bills (bills that are sent to the House of Review and do not receive changes)
- amended bills
Final stages before the bill becomes operational as law
- royal assent
- publication
- commencement
Publication
-act is published in the Government Gazette
Finding a particular Act can be found:
- in law libraries
- by ordering a copy from the government printer
- by looking up legislation on the internet
Finding a particular Act:
-all laws currently enforced-look at Commonwealth Consolidated Acts
-all laws that used to be enforce-look at Repealed Commonwealth
(repeal law in the same process that makes laws
Object of Acts
-tells you what the act actually does
An approach to reading legislation
- skim through the legislation
- look at the heading
- look at the object section
- look at the use of section numbers and headings
- look at the definition section
- find section most relevant to your enquiry and read that and the surrounding section
purpose section
-tells you what the act is trying to do
section 3 and 4
-tells you what allows you to use this act
interpreting legislation
- judges interpret legislation
- rules for interpreting legislation is in legislation (acts in Interpretation Acts)
literal approach
- used in every approach
- use macquery dictionary, but some us Oxford dictionary
golden rule
- only used very rarely
- only used if there is a very clear mistake in legislation
- Parliament amend legislation
- not a lot of legislation with typos in it
‘purpose’ approach
- used often
- literal approach does not give a clear and unambigous meaning ascertain the meaning of words by having regard to the purpose of Parliament when it passed
- choose the meaning that best serves that purpose
For the purpose approach, use two kinds of evidence
- look at legal documents that try to explain the legislation (minister’s second reading speech), committee reports from second reading
- intrinsic evidence
- extrinsic e
intrinsic evidence
- intrinsic evidence can be found:
- objects section, titles, long titles
- the structure of the act, like divisions and headings
- info in schedules and annexures
- info in other sections of the act
extrinsic evidence
- Parliamentary papers, reports and documents, including 2nd reading speech
- reports of law commissions and committees
- background documents like international treaties and agreements
