Legislation Flashcards
Remedial legislation
This is legislation that overrides case law created by a superior court because parliament believes it is a bad law.
Complementary Legislation
Legislation passed to codify a legal rule created by a court so that it can be uniformly applied.
Public bill (Ordinary Bill)
Proposes a new law
Public Bill (Supply bill)
Budget and taxation bill
Methods of voting
- According to party lines
- Conscience vote
Voting procedures
On the voice
Formal vote
Deadlock
-A parliamentary deadlock, as defined in section 57 of the constitution, occurs when the House of Representatives passes a bill twice and it is rejected twice in the senate after three months between each rejection.
- A deadlock will occur when the government does not control the majority of seats in the senate.
- The minority parties and independents who hold the balance of power, form an alliance with the opposition to reject government bills
(Goth Whitlam)
Three ways to resolve a disagreement/deadlock
- Amendments or abandonment
- Double dissolution
- GG calls for dismissal
Constitutional trigger
the treat of DD can be used as a threat to the senate (Pass or face election)
How is legislation supervised by parliament
- The upper house scrutinises bills passed through the lower house (Bicameral scrutiny)
- Ministers are accountable to parliament through question time and debates
- The committee structure of parliament allows for reporting on effectiveness of legislation
- Legislation may be given a sunset clause
Members of the public may petition their local member
How is legislation supervised by executive
- The cabinet conduct investigations and committees of inquiry
- Royal commissions
- Transparency as public can access records held by government departments as per the freedom of information act (1991).
- Ombudsman
Responsible government.
How is legislation supervised by
- Independent of the 2 arms
- Judicial review
- Appeals
- Inconsistency rule
- Statutory interpretation
Judges may be called upon to sit on a royal commission to investigate legislations effectiveness.
Delegated legislation
- Parliament delegates law-making power for a range of reasons and to a variety of delegated authorities.
- Some reasons include:
- Workload
- Legislative complexity/expertise
- Regulations can be made quicker
- More efficient
- A way to get around the upper house
- Can be made for special local conditions
- allows for community participation.
Stages of delegated legislation
Consultation Drafting Approval Proclamation Tabling and gazzettal
How is delegated legislation supervised by parliament
- Both state and federal parliaments pass legislation that sets the powers and processes of delegated bodies
- Senate standing committee
- The regulatory powers can be revoked or limited by parliament
Question time
How is delegated legislation supervised by government
- Cabinet reviews the regulations
- The executive council reviews and approve regulations
- Committees can be set up
Ombudsman.
How is delegated legislation supervised by the judiciary
- Judges may declare regulation ultra vires
- Judicial review
- Statutory interpretation
Rule of law and natural justice.
Case Law
- Case law is the body of law that developed from the judgements and procedures of court and is the base of law in Australia.
- Case law is a consequence of individual legal disputes. It develops in two ways
by the creation and extension of common law principles where no statutory rule exists and by statutory interpretation.
How does the court depart from precedent
- Reversal – an appellate court changes decision in appeal
- Overruling – A superior court can overrule precedent
- Distinguishing – the facts of the case differ
- Disapproval – A court of equal standing deems the precedent unfavourable.
Why is case law made
- To provide resolution of dispute where no statute covers and no precedent exists
- To give meaning to statutes.
Weaknesses of case law
- Not democratically elected
- Judicial decisions may be overtaken by P law.
Courts can only respond to matters brought before them
Strengths of weaknesses
- Developed independent of political pressure
- Precedent provides consistency
Made in accordance to the ROL and natural justice
Supervision of case law by parliament
- Can override judge made law
- May decide to codify
- Prescribe the way courts operate (Evidence Act)
Parliament can dismiss judges under section 72
Supervision of case law by executive
- Provides funding to court and can cut or fund new courts
May recommend the dismissal of a judge
