Legislation Flashcards
Explain legislature quickly.
Elected by public vote.
Most Australian legislatures are bicameral except for QLD, ACT and NT being unicameral (only legislative assembly).
What are the types of legislative power? What happens if inconsistent laws are made?
- exclusive - only Cth. e.g. s 90 over customs
- residual - only State. e.g. education
- concurrent - both. s. 51
Inconsistent laws - s. 109 provides State law is void to extent of inconsistency with Cth law
s. 122 allows Cth to override territory law any time.
What are the law-making powers of local governments?
Can make by-laws.
Will be invalid if inconsistent with state or federal law or if they exceed powers given to local government.
Before the Bill - what happens?
- Identify need for new law (circumstances arise)
- Political processes (decision taken by those w political power to introduce proposal into legislature)
- Development of specific proposals (bill is drafted by parliamentary draft-persons)
NOTE: govern. of day that introduces and drives into legislature as have majority vote.
What is private members bill?
Other members of parliament introduce Bills. though unlikely to succeed unless it has support of executive government or members of parliament.
Who is bill prepared by?
For proposed law to be voted on it must be in form of a Bill. Office of Parliamentary counsel do this, a team of government lawyers who specialise in drafting legislation.
May also prepare an explanatory memorandum, summarising the new law and explaining the effect of each provision.
How does a Bill become a law?
- A bill is a draft piece of legislation
- A bill must be passed by the legislature to become law
- Bicameral systems: bill must be passed by both houses of parliament
- Unicameral systems: bill must be passed by the single house
Where is a Bill introduced?
With some exceptions, the bill can be first introduced in either lower or upper house. Most are first introduced in the lower house.
Where it is first introduced, it is called the House of Origin.
Other house is referred to as House of Review.
What is the process of a Bill passing?
- Initiation (clerk of house lists Bill for first reading)
- First Reading (long title read out, no debate yet)
- Second Reading (minister make speech explaining purpose, debate happens, then voted on, if agreed to the title is read a second time)
- Committee (members of house form a committee to consider Bill in detail)
- Third Reading (read a third time, voted on, title read again if agreed to)
- Royal Assent (sent to Queen’s rep)
- Publication (act published in Government Gazette)
- Commencement (Act commences operation as law)
Why is committee stage necessary?
Where bill is contentious, this stage is where parliament becomes aware of detail.
Explain commencement.
Date usually specified in section of Act. If not, default commencement dates apply.
A Bill must go through Royal Assent, Publication and Commencement for it to become a law.
Unless the legislation contains a specific expiry clause, it will remain as law until it is repealed, that is, until the parliament decides to abolish the law or replace it with a new law
How are deadlocks resolved?
If the Upper House fails to pass a Bill passed by the Lower House, and after three months the Bill is once again passed by the Lower House and rejected by the Upper House, the Governor-General is empowered to dissolve both Houses - double dissolution occurs, all members of parliament are effectively dismissed and an election is held.
What is more common is the threat of double dissolution: a Bill is passed by the Lower House, rejected by the Upper House, passed again by the Lower House and, at this point, members from both Houses start negotiating to avoid that final step and initiate a double dissolution.
How to identify legislation?
Each Act has a name.
e.g. Damage by Aircraft Act 1999 (Cth)
Passed by Cth legislature.
1999 year it was passed but may not be year it commences.
What is the structure of legislation?
Title - Long title sets out purpose. Short title is which Act is known by.
Divided into - Parts, Divisions, Sub-divisions and sections
Table of Provisions - contents page
Types of Sections - set out purpose, define words, prohibit conduct, define consequences of breach.
What are reasons for language being difficult to read?
- drafted in detailed manner leading to clarity being sacrificed
- detailed precedents result in needlessly length legal documents
- lawyers charged client on length of legal document, more lucrative for lawyer
- many Latin terms used
- many English terms have legal meanings different from everyday meanings.
What comes under Statutory Interpretation?
- Literal approach
- Contextual approach
- Purposive approach
- Common law presumptions
- Statutory rules
What is the literal approach? Incl. golden rule.
Court should interpret the statute literally, giving the words and phrases in the statute their ordinary and natural meanings
When lawyers speak of finding loopholes in a law, they are referring to the practice of reading a legal text literally and looking for instances where, on such a literal reading, the law does not apply as intended, or at all.
What is the golden rule?
If reading a text literally leads to an absurd result, the court should modify the literal meaning so as to avoid the absurdity. In other words, when interpreting legislation the court should not be too literal
What is the contextual approach? Incl. class and mischief rule.
Immediate context - meaning the other words and phrases used in the same section or surrounding sections in the Act.
Act as a whole - takes into account various elements of the Act including the long and short titles, the preamble, the objects clause, the definitions section, other sections of the Act, schedules to the Act and so on.
Other legislation - If a word is interpreted in a particular way in one statute, it is not necessarily interpreted the same in another statute. Where parliament passes a series of statutes all dealing with the same or similar subject matter, the court is likely to interpret words and phrases common to all of the statutes in a similar way.
Prior Law - occasionally take into consideration the law that existed prior to the passing of the statute in question.
What is the class rule?
Where two or more specific words are followed by general words, the general words are limited to the class created by the specific words. e.g. if you see a phrase such as ‘beer, wine, spirits and other liquids’ in a statute or legal document, you should interpret the word ‘liquids’ not literally, but as limited to the class established by the previous specific words ‘beer, wines, spirits’, that is, alcoholic beverages.
What is the mischief rule?
in the event of an ambiguity in a statutory provision, the court should consider the problem or ‘mischief’ the statute was intended to address
What is the purposive approach?
the court should refer to the apparent purpose of the parliament when passing the statute. created and promoted by the legislature.
Internal sources of statutory interpretation?
- section that defines key terms
- purpose provision
- surrounding provisions
External sources of statutory interpretation?
- principles laid down by courts regarding approach taken
- extrinsic materials (explanatory memorandum, second reading speech)
- previous consideration by courts of term/phrase (previous cases)
