sources of contemporary australian law 2

Sources of Australian Contemporary Law

AKA ‘Legislation’ and ‘Acts of Parliament’ The Australian Constitution sets out the

powers of state and federal parliaments

Statute Law (Parliament)

All states except QLD are Bicameral, meaning two chambers or houses of parliament◦ Federal: House of Representatives and Senate◦ State: Legislative Assembly and Legislative

Council Governments are elected on holding

electorate seats not overall popularity

Structure of Parliament

When a Bill becomes a law 1. Formulation Stage 2. Drafting Bill Stage 3. First Reading 4. Second Reading 5. Committee Stage 6. Third Reading 7. Royal Assent Stage Enactment

What are the advantages and disadvantages of this processes?

Discussion Point:

Legislation made by non-parliamentary bodies – delegated to subordinates (local council)

Types:◦ Regulations – Governor-General, State Governor◦ Ordinances – Australian Territories◦ Rules – Government departments◦ By-laws – Local Councils

Delegated Legislation

The Constitution prior to the Constitution,

Australia consisted of six separate colonies under the British government

the Constitution commenced on 1 January 1901 to create the Commonwealth of Australia

it created the states, the Commonwealth and the federal parliament, and outlined the ‘division of powers’ between the Commonwealth and states

the Constitution defines how power is divided between the Commonwealth and states to make laws

section 51 of the Constitution lists powers the Commonwealth shares with the states

section 52 lists some exclusive Commonwealth powers

section 109 says that Commonwealth laws will override any state laws if they are inconsistent

matters not listed are considered ‘residual powers’ for the states

Division of Power

Legislative Powers – the legal power or capacity to make laws

Concurrent Powers – powers held by state and federal parliaments at the same time

Exclusive Powers – powers that can be exercised only by federal parliament

Residual Powers – those remaining matters on which the state can legislate that are not referred to in the Constitution

Definitions

Charles de Secondat Monteesquieu “Civil liberties are at risk if the key organs of the government are controlled by one person or group”

Separation of Powers

3 areas that are separated

• legislature – which includes the lawmakers (i.e. parliament)

• executive – includes the ministers and government departments who administer the law

• judiciary – includes the judges and courts who interpret and apply the law

In Australia, the legislature and executive are not clearly separated, but the Constitution ensures the judiciary is strictly separated from the non-judicial arms of government

the High Court of Australia is the highest court in Australia, higher than all other federal and state courts

originally, matters from state courts could still be appealed to the Privy Council in the UK, but this avenue was cut off with the Australia Act 1986 (Cth)

The Role of the High Court

the High Court also hears cases involving interpretation of the Constitution – these have been very influential in defining Australia

the High Court is the highest court in Australia

– its decisions are final and cannot be appealed

appeals can be made from state and territory

supreme courts and from federal courts

the High Court must grant leave to appeal

before it will review a case – it only grants this

in rare cases

Appeals to the High Court

judicial review involves review by a court of a decision made by a government official or department

a more efficient way to appeal a government decision is through the Administrative Appeals Tribunal, which can review the merits of a decision

Judicial Review