statutory law (zeehab) Flashcards
What is statue law
Law made by parliaments. Made by elected members of parliament, statute law has democratic legitimacy and is superior to common law. It is written in broad terms. Bills must pass both houses of the Commonwealth parliament and be given royal assent before becoming law.
Democratic Sources of Authority for Statue Law
A democratic authority, because the people have delegated their authority to the members of parliament via an election, which means they have democratic legitimacy
Constitutional Authority for Statue Law
A constitutional authority, because we are a constitutional monarchy.
All legislation must be approved by the crown, represented by the Governor General.
Australia’s Constitution specifies legislative powers for the Commonwealth Parliament into exclusive (federal parliament only) and concurrent (both federal and state).
IMPLEMENTING POLICY
During an election, political parties identify the policies that are important to them, and pledge to enact these policies should they get into government. Sometimes they need to change the law to be able to put their policies in action, so that they are behaving lawfully (as per the rule of law).
EXAMPLE OF IMPLEMENTING POLCIY
the National Disability Insurance Scheme Act 2013 which was implemented by the Gillard Labor government to assist and support people with a disability.
When considering changes to law:
Law must be obeyed regardless of its merits
Law must reflect community values or law-abiding people may resist it
Law must be responsive to democratic pressures and processes.
amending laws
a change to a proposed law
Where a law no longer reflects the community’s values, as was the case with the Marriage Act 1961 which was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 to allow gay marriage
It can be amended by having an amendment Act passed through Parliament.
Repealing laws
When laws are no longer relevant, or reflect society’s values it can be repealed, also, by amending Acts.
What is consolidating
The existence of outdated or confusing laws is damaging to the rule of law which requires law to be clear and coherent.
Periodically, parliament will repeal several old Acts and replace them with one consolidating Act to simplify and update laws to ensure statutes stay up to date
Courts resolves
Courts resolve disputes by adjudicating:
The specific facts of a case (the evidence)
The law which applies in the particular circumstances of the case.
What does it mean to abrogate
Parliament carefully assesses how each significant court decision affects the way its statues work in the real world. If parliament feels that the meaning of the statute has been changed by judicial interpretation it will abrogate (pass an Act to override) a court decision.
Responding to Court Decisions and Judge Made Common Law
An example of this is the Western Australian Criminal Code Compilation Act 1913 (WA) which codified laws which were previously entirely common, or case law.
