Week 2 | Legislation as a source of law

Question 1

What are the two main streams of Western jurisprudence?

Answer 1

• Roman law (civil law)

- English law (often referred to as the common law)

Question 2

What is the nature of law? How is legal change brought about?

Answer 2

Nature of law:
Law is dynamic rather than static- it is constantly changing. Over a 200 year period, Australian law has developed as a legal system distinct from English law.
The changes made to a nation’s laws tend to be changes of detail rather than the wholesale adoption of fundamentally different principles. The legal system f a country therefore tends to retain its basic principles and character despite ongoing change. This explains why Australian law still shares many similarities with other legal systems that are also based on English law.

Legal change is brought about by a body with a recognized law-making power

Question 3

What are the 2 major bodies in Australia with law-making powers?

Answer 3

1. The courts
2. Legislature and local government councils (and government ministers and officials with specified powers)

In blaw, more focus is placed on Australian law

Question 4

What is law made by a legislature called? (Hint: more than one name)

Answer 4

Law made by a legislature is called ‘legislation’ or statutory law or an Act of parliament
Each act has a name, an example is the spam Act 2003 (Cth)

Question 5

What does each state and territory legislatures have to make law? How is their power limited? What do the state and territory legislatures share with the commonwealth parliament?

Answer 5

Each state and territory will have a general legislative power to make law for peace, order and good government. This power is limited to their particular territory.
State and territory legislatures share some powers with the commonwealth parliament

The commonwealth government has less general legislative power than the state and territory governments. The commonwealth constitution gives the Commonwealth parliament power to make law in relation to specified matters only

If the commonwealth parliament and a state or territory legislature legislate in a sphere where legislative power is shared the enacted provision exist alongside each other as long as the provisions do not conflict

Question 6

What happens when commonwealth and state or territory legislation conflict in a sphere when the power is shared?

Answer 6

When commonwealth and state or territory legislature conflict in a sphere when the power is shared, the federal legislation prevails over the state legislation to the extent of the inconsistency.

Question 7

What are the law making powers of local government? What are these laws called and how will they become invalid?

Answer 7

Local government are established by state and territory governments

They have specified power to make laws called ‘by-laws’

By-laws will be invalid:

1. if they are inconsistent with state of federal law, or
2. if they exceed the powers given to the local government

Question 8

What does the legislative process consist of?

Answer 8

The legislative process involves a number of different stages:

1. Bill
2. First, second and third reading of a bill
3. Royal assent (approval or agreement)
4. Commencement

Question 9

How does the legislation become introduced when exceptions apply?

Answer 9

With some exceptions legislation can be first introduced into either the upper or lower house (in the bicameral parliaments). We call the house where legislation is first introduced, the House of Origin. The other house becomes the House of Review.

Question 10

Outline the legislative process as well as the proposals for new legislation

Answer 10

Legislative process:

1. Proposals for new legislation
2. Procedure in the house of origin
3. Procedure in the house of review
4. Final stages before the Bill becomes operational as law

Proposals for new legislation:

1. Identifying the need for new law: Circumstances or beliefs give rise to particular ideas and policies that require change to the law
2. Political processes: A decision is taken by those with political power to introduce new proposals into the legislature
3. Development of specific proposals: A bill is drafted by parliament draftpersons

Question 11

What is the procedure followed in the House of Origin?

Answer 11

Initiation: the clerk of the house lists bill for its first reading
First reading: the house grants permission to introduce the bill and its long title is read out. There is no debate at this stage.

Second reading: It is moved that the Bill read a second time. The relevant minister makes a speech explaining the purpose of the bill. Debate occurs and the motion is then voted on. If agreed to, the title of the Bill is read a second time

Committee: The members of the house form a committee to consider the Bill in detail, or the house refers the bill for consideration to a selected committee

Third reading: It is moved that the Bill be read a third time, the house votes on the motion. If agreed to, the title of the Bill is read a third time

Question 12

What is the procedure in the House of review?

Answer 12

Initiation: first reading, second reading, committee and third reading: the procedures that were followed in the house of origin are followed again in the house of review
Un-amended bills: If the house of review assess the Bill without amendment, the Bill is returned to the house of origin and then proceeds to the next stage

Amended bills: if the house of review passes the bill with amendments, the bill is returned to the house of origin which may accept or reject the amendments. If agreement can’t be reached, the government can be dissolved, and a general election called

Question 13

What are the final stages before the bill becomes operational as a law?

Answer 13

Royal assent: the bill is sent to the Queen’s representative to receive Royal assent

Publication: the act is published in the government gazette

Commencement: the act commence operation as law

Question 14

What are the rules to interpret legislation?

Answer 14

Rules of interpretation should be applied to resolve interpretation questions, in outline, these rules are:

1. The literal approach: give the words used their ordinary, natural meaning. Use a good dictionary to determine this
2. The golden rule: if the literal approach give an absurd result, or one that is repugnant or which is inconsistent with the overall act, modify the literal meaning to the extent necessary to avoid the absurdity or inconsistency
3. The purpose approach: if the literal approach does not give a clear and unambiguous meaning and as a general aid, the literal approach, ascertain the meaning of words by having regard to that purpose of Parliament when it passed the act. Choose the meaning that best serves that purpose.

Question 15

Where can intrinsic evidence of the legislature be found? (for purpose approach to interpret legislature) Where can extrinsic evidence be found?

Answer 15

Intrinsic evidence of the legislatures purpose can be found in:

• object sections, titles, long titles
• The structure of the act, including divisions and headings
• Information in schedules of annexures
• information 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, e.g. international treaties and agreements
Having applied the various rules of interpretation, state your final conclusions