Week 5 Lecture Flashcards
What was historically the major source of the law?
Common law the major source of law
Replaced by statute in the 20th century
What are the consequences?
What replaced common law as the major source of law during the 20th century?
Statue.
What is the increase in statue casused by?
Increase is largely post-war
Increasing number of Acts
Increasing complexity of Acts
Increasing role of Federal law
Is common law case specific?
Yes
Is legislation case specific?
No
Is common law retrospective or prospctive?
Retrospective
Does the prescedevalue of common law transcends national boundaries?
yes
Do principles in common law have variable expression yes?
Yes
Does common law evolve over time?
Yes
What kind of application does legislation have?
General application
Is legislation prospective or retrospective?
Prospective; but also retrospective
Are words in legislation fixed?
Yes
What does legislation rely on to ammend?
Parliament.
What trumps case law?
Legislation.
Who interpets the law?
The courts.
Can courts declare legislation invalid?
Yes
What trumps legislation?
An ACT of parliament unless the Act itself empowers “upward” alteration of the Act
What is the Henry 8 Clause?
UNLESS the Act itself empowers “upward” alteration of the Act
What three categories is soverign power divided into?
Executive
Legislature
Judiciary
What would occur without seperation of soverign power?
Citizens subject to arbitrary exercises of power
Who is the law maker?
The law-maker is judge and executioner
What does the commencement of statues vary between?
Jurisdictions
Can acts come into operation immeaditely on assent?
yes but not always.
When can acts commence?
Acts may specify a particular date of commencement
Acts can commence on a date specified later and “proclaimed” by the Governor-General
Acts can also come into effect on the 28th day after receiving Assent
Are some acts never brought into force?
Yes.
What do revival provisions concern?
REVIVAL provisions concern the restoration of legislation, or provisions of them, that have ceased to operate
Can parliament revive dead law?
Yes
What are sunset clauses?
SUNSET clauses simply declare that an Act or provisions of it cease to operate after a certain date
Eg: Australian Security Intelligence Organisation Act 1979 (Cth), s34ZZ
What is the general rule that legislation is presumed to operate prospectively?
General rule is that legislation is presumed to operate prospectively from the date of commencement
BUT parliament has undoubted power to declare operation retrospectively
