Supervision of Lawmaking

Question 1

What does supervision of lawmaking help with?

Answer 1

Ensures power is not concentrated in one body.
Reduces mistakes or oversights.
Helps change unpopular or unnecessary laws.

Question 2

Who supervises legislation?

Answer 2

the legislative (parliament), the executive (government) and the judiciary.

Question 3

Who supervises delegated legislation?

Answer 3

the legislative (parliament), the executive (government), the judiciary (courts).

Question 4

Who supervises case law?

Answer 4

The judiciary (courts), the legislative (parliament)

Question 5

How does the legislature supervise legislation?

Answer 5

Bicameral scrutiny,
Committees
Amendment bills
Repealing Acts
Sunset Provisions
Question Time
Petitions
Grievance and urgency debates

Question 6

What is bicameral scrutiny and how is it used to supervise legislation?

Answer 6

The legislature uses bicameral scrutiny to supervise legislation as both houses of parliament must pass a bill in order for it to become a law

Question 7

Why is a parliamentary committee used to supervise legislation?

Answer 7

The legislature uses committees to ensure that parliament is transparent and accountable. Committees enable them to hold the government to account.

Question 8

Why are amendment bills used to supervise legislation?

Answer 8

The legislature uses amendment bills to change existing legislation which may be outdated. They are important as it helps ensure people’s rights and responsibilities are reflected in legislation.

Question 9

Why are repealing acts used to supervise legislation?

Answer 9

The legislature uses repealing acts to supervise legislation as it allows them to pass a motion to repeal an act and replace it with another. This is important for legislation as it means it will reflect present rights and responsibilities of the Australian people.

Question 10

Why are sunset provisions used to supervise legislation?

Answer 10

Sunset provisions are used by the legislature to supervise legislation as they guarantee that a law will be reviewed after a certain time. This is important when supervising legislation as it means that laws made on rapidly changing topics will be prioritised and reguarly reviewed.

Question 11

Why is question time used to supervise legislation?

Answer 11

Question time is used by the legislature to supervise legislation as it ensures that ministers are held accountable for the enforcement and administration of legislation.

Question 12

Why are petitions used to supervise legislation?

Answer 12

Members of parliament may table petitions on behalf of concerned citizens to address the nature and effectiveness of legislation. This ensures that the legislature keeps the people they serve in the forefront.

Question 13

Why are grievance and urgency debates used to supervise legislation?

Answer 13

The legislature uses grievance and urgency debates for individual members to expose weaknesses in legislation and suggest reforms. This is important for supervising lawmaking as it assures that laws are thoroughly reviewed before they pass.

Question 14

How does the executive supervise legislation?

Answer 14

Responsible government
Administrative tribunals
Office of the Ombudsman

Question 15

Why is responsible government used to supervise legislation and delegated legislation?

Answer 15

The executive uses responsible government to supervise legislation as it allows them to hold ministers accountable to parliament for administering within their portfolio. This ensures that ministers stay within their area of responsibility and that they effectively and efficiently administrate laws.

Question 16

Why are administrative tribunals used to supervise legislation and delegated legislation?

Answer 16

The executive uses administrative tribunals to supervise legislation as it allows for the review of laws passed by governments. These tribunals often expose weaknesses in legislation governments must address.

Question 17

What are some examples of administrative tribunals?

Answer 17

administrative appeals tribunal and the social security appeals tribunal

Question 18

Why is the office of the ombudsman used to supervise legislation and delegated legislation?

Answer 18

The executive uses the Office of the Ombudsman to supervise legislation as it investigates complaints regarding decisions of a government authority. They can recommend changes to parliament which are often accepted.

Question 19

What is the office of the ombudsman?

Answer 19

They have the power to examine administrative decisions made by commonwealth departments and authorities. They help to identify flaws in legislation.

Question 20

How was the Commonwealth Ombudsman established?

Answer 20

The Commonwealth Ombudsman is an independent government authority established under the Ombudsman Act 1976 (Cth).

Question 21

How does the public help supervise law-making?

Answer 21

Through public scrutiny.

Question 22

What are the two methods public scrutiny?

Answer 22

When the public helps supervise law-making through challenging pieces of legislation in court. Legislation can be ruled ultra vires.

The public can also hold lawmakers accountable at elections. If they are unhappy about the types of laws being made or proposed to make, they are able to vote for a different party, which ensures accountability.

Question 23

What role does the media play in holding lawmakers and their legislation accountable?

Answer 23

they are able to highlight faults in law-making processes which holds it accountable. They also express these faults in a way which is understood by the average citizen.

Question 24

What was the case of Australian Capital Television v Commonwealth (1992)?

Answer 24

HCA ruled that there is an implied right to freedom of political communication in the constitution. This case ensures the freedom of the media and their ability to hold government accountable.

Question 25

How does the judiciary supervise legislation?

Answer 25

Through judicial review and statutory interpretation.

Question 26

Why is judicial review used to supervise legislation?

Answer 26

the judiciary uses judicial review to supervise legislation as it allows for individuals, companies, organisations, or associations to challenge the validity of legislation in court. Courts can declare legislation invalid if parliament has exercised power ultra vires.

Question 27

What is the Boilermakers’ Case (1956)?

Answer 27

The High Court declared legislation invalid as it permitted an executive body to exercise judicial power contrary to the implied principle of judicial independence in Chapter 1 of the Constitution.

Question 28

Why is statutory interpretation used to supervise legislation?

Answer 28

The judiciary uses statutory interpretation to supervise legislation and they are able to change the nature of legislation which may, or may not, cause parliament to amend it.

Question 29

What is statutory interpretation legislation?

Answer 29

All States and Territories have passed statutory interpretation legislation (e.g. Acts Interpretation Act 1901 (Cth)).
These laws have rules courts must follow when interpreting statutes.

Question 30

How does the executive supervise delegated legislation?

Answer 30

Enactment, responsible government, acts interpretation act, disallowance procedures and parliamentary committees.

Question 31

What is enactment?

Answer 31

The process of passing legislation.

Question 32

How is enactment used to supervise delegated legislation?

Answer 32

Enactment is used to supervise delegated legislation by parliament as they can change the regulatory power of a delegated authority in the parent Act, to broaden, limit or abolish it.

Question 33

How is responsible government used to supervise delegated legislation?

Answer 33

Ministers of government are held accountable to the parliament for the regulations they approve. During question time or in general debate, weaknesses in regulations may be exposed which a minister will be pressured to change or face the possibility of a disallowance motion.

Question 34

How is a disallowance procedure used to supervise delegated legislation?

Answer 34

Regulations must be tabled within 15 days. If not done, they are void and can’t be enforced. Alternatively, a member of parliament can move a motion of disallowance- voted on, if votes passed regulation is null and void).

Question 35

How does the Acts Interpretation Act 1901 (Cwlth) help to supervise delegated legislation?

Answer 35

The AIA 1901 helps the legislature supervise delegated legislation as it provides for the review of federal regulations.

Question 36

How do parliamentary committees help supervise delegated legislation?

Answer 36

The legislature ensures that regulations are in accordance with their enabling act, do not infringe unduly on personal rights and freedoms, do not deny a person natural justice and are not more appropriate for parliamentary enactment through parliamentary committees. One example is the Senate’s Standing Committee on Regulations and Ordinances which studies all regulations. If any of these conditions are breached, the committee decides whether they should be subject to disallowance in the Senate.

Question 37

How does the executive supervise delegated legislation?

Answer 37

Responsible government, administrative tribunals, the office of the Ombudsman, Freedom of information and public scrutiny, Delegated authorities can exercise a sunset provision to compel review of a regulation after a specific time period.

Question 38

How does the judiciary supervise delegated legislation?

Answer 38

Statutory interpretation and doctrine of judicial review.

Question 39

How is statutory interpretation used to supervise delegated legislation?

Answer 39

Courts interpret regulations when resolving disputes, to give them meaning. Superior courts create legal principles to guide lower courts when interpreting regulations. Judicial interpretations are normally narrow to protect people by limiting the power of the executive.

Question 40

How is the doctrine of judicial review used to supervise delegated legislation?

Answer 40

Courts can declare regulations invalid if the delegated authority exercises their power ultra vires the Enabling Act.

Regulations can also be declared invalid if they are inconsistent with statutes or the Constitution, or if it unreasonably intrudes on individual rights or freedoms.

Question 41

What is an example of the doctrine of judicial review being used to supervise delegated legislation?

Answer 41

South Australia v Tanner 1989 HCA.

SA Full Court of the Supreme Court held regulation made under the Waterworks Act (1932) was invalid as the government exercised and executive power ultra vires the Enabling Act. (Regulation had been used to stop the Tanner family from having an aviary in the Adelaide Hills because it was a watershed area for a local reservoir.

On appeal-Full Court of the High Court reversed the Supreme Courts decision as the regulation had not been made ultra vires the Enabling Act.

Question 42

How does the judiciary supervise case law?

Answer 42

Departure from precedent, reversal, overruling, distinguishing, disapproval

Question 43

How is departure from precedent used to supervise case law?

Answer 43

The judiciary avoid precedents of higher courts that result in unjust outcomes.

Question 44

How is reversal used to supervise case law?

Answer 44

Appellate court changing (reversing) the decision of a lower court. A judge in a higher court reverses the original decision made establishing a new precedent.

Question 45

How is overruling (departing) used to supervise case law?

Answer 45

Superior court ‘overruling’ a decision of a lower court. A court higher up in the hierarchy sets aside a legal ruling established in an earlier case creating a new precedent.

Question 46

How is distinguishing used to supervise case law?

Answer 46

Lower court avoids a binding precedent due to significant material differences. Judge shows there are significant differences between the facts in the case before the court and the precedent setting case.

Question 47

How is disapproval used to supervise case law?

Answer 47

Doesn’t follow decision of the same court. Courts on the same level as a precedent setting case do not need to follow their own decisions.
They can create a new precedent if they disapprove of the previous decision.

Considers decision of a court in another hierarchy but doesn’t follow it,
Lower courts disapprove a precedent but still follow it

Question 48

How does parliament supervise case law?

Answer 48

guiding legislation, remedial legislation and complementary legislation.

Question 49

How is complementary legislation used to supervise case law?

Answer 49

Parliament makes legislation to codify court decision, giving it a more general application in the community.

Question 50

What are some examples of complementary legislation?

Answer 50

Native Title Act 1993 (Cth) complements the High Court’s Mabo (No. 2) case in 1992.

When SA Parliament passed the Criminal Law (Legal Representation) Act 2001 (SA) as a direct consequence of the HCA’s Dietrich v The Queen decision in 1992 codifying that a trial for a serious indictable offence had to be deferred if the accused was denied legal representation through no fault of his own. Ensures that legal representation is available to persons charged with serious offences so the alleged offenders do not avoid scrutiny by the criminal justice system.

Question 51

How is remedial legislation used to supervise case law?

Answer 51

This legislation overrides case law that it deems bad or inappropriate.

Question 52

What is an example of remedial legislation?

Answer 52

The Wrongs Act Amendment Act (No. 2) 1983 (SA) was enacted in direct response to the HCA’s decision in SGIC v Trigwell and Ors in 1978.

Question 53

How is guiding legislation used to supervise case law?

Answer 53

Guiding legislation refers to the legislature in place which guides the lawmaking ability of other government bodies. e.g. Acts Interpretation Act prescribes rules about how parliaments should construct statutes and judges interpret statutes.