BLAW1004 Lecture Notes - Lecture 2: Nsw Law Reports, Australasian Legal Information Institute, Ratio Decidendi
29 May 2018
School
Department
Course
Professor
Module 2
Lecture
Sources of Law – Legislation and Case Law
Learning Outcomes:
• Identify the different sources of law in Australia
• Understand legislation as a source of law
• Outline the legislative process and associated terminology
• Understand case law as a source of law
• Explain the principles according to which case law is made
• Be able to apply case law by analogy
The Nature of the Law
• The law evolves, rather than remaining static. Moves in response to shifting societal conditions,
attitudes and values, but it still has its basic principles, which do not change, as a foundation
• Technological shifts – privacy laws, has had to update and change
• In this respect, the law has developed over the 200 plus years since we were colonised by the British
and adopted English law
• Despite growing this distinct body of law, Australia Law is quite similar to other legal systems that have
their origins in English Law (e.g. Singapore, Canada) – Common Law Legal System
Law Making Bodies in Australia
1. Government ministers and officials with specified powers (the executive)
- To create legislation
- Create laws but cannot enforce the law
2. Legislatures and local government councils (the legislature)
- Create enacted law
3. The courts (the judiciary)
- Law making power – not as direct
• Politicians, who are members of parliament, work with the legislative branch of government to create
legislation / statute law (enacted law)
- Work with members of the executives
- If they have something they want to change they discuss with the legislature
- It needs to be signed off by the GG before it becomes a law (before it is signed it is just a draft
legislation)
• Judges, who are members of the judicial branch of government create the common law with their case
judgements (unenacted law)
Legislation as a Source of Law – The role of the government in law-making
Australia Legislatures
• There are many legislatures in Australia that exist at both the Commonwealth and State Level (exist at
more than one level of government – different jurisdiction of power and ability to create laws)
• These legislatures can also be referred to as parliaments
find more resources at oneclass.com
find more resources at oneclass.com
• Legislatures at the Commonwealth (Federal) and State level are bicameral (meaning that they have an
upper and lower house – 2 houses before it becomes formal). Queensland is the exception (it is
unicameral, having only one house of parliament – a bill must just pass through the one house)
• Federal – Senate and House of Representatives
• The law made by the legislature is called variously:
- Legislation
- Statutory law
- Acts of parliament
- Enacted law
• Each Act deals with a particular subject matter, which is reflected in the name of the Act e.g. The
Competition and Consumer Act 2010 (Cth), Income Tax Assessment Act 1997 (Cth), Finance Brokers
Control Act 1975 (WA) – only operates through the jurisdiction of WA or the entire Commonwealth
• The date attached to the title of the legislation tells you when it came into force. The abbreviation in
brackets at the end of the title tells you what legislature created the legislation and what jurisdiction it
operates in e.g. Cth – Commonwealth; WA – Western Australia
• Updating pieces of legislation through amendments instead of updating the entire act
Law making powers of Australia Legislatures
• State legislatures have the power to enact laws for the peace, order and good governance of their
territory – broad power to create laws
• This power does not extend to other states or territories – can only enforce laws in their own territory
• These State legislatures obtain this power from their State constitution
• Some legislative powers are shared between the Commonwealth and State / Territory governments
• The Commonwealth government has a more defined legislative power than the State / Territory
governments
• The Cooealth goeets poe to legislate on specific matters comes from the
Commonwealth constitution
• Section 52 of the Commonwealth constitution details what the Commonwealth parliament has the
exclusive power to legislate on (e.g. matters relating to any department of the public service that the
Commonwealth controls, places acquired by the Commonwealth for public purposes) Commonwealth
has the interest in creating these laws
• Section 51 of the Commonwealth constitution details what the Commonwealth parliament has the
concurrent (shared) power to legislate on – legislative power is shared with the States (e.g. fisheries in
Australian waters beyond territorial limits, bankruptcy and insolvency)
- Federal Acts and State Acts dealing with the legislation
• States can refer legislative powers to the Commonwealth i.e. Corporations law
- Federal Corporations Act – business between states, how do the states enforce laws when people
are doing business between two states, federal government created an over arching act.
• As it oes the Cooealths poe to concurrently legislate on matters contained in Section 51
of the Commonwealth constitution, Section 109 of the Commonwealth constitution provides a
resolution when the provisions of Commonwealth and State legislation conflict
• Section 109 provides that the federal legislation prevails over the state legislation to the extent of the
inconsistency
• Where however, the Commonwealth and State laws do not conflict, they continue to operate in their
respective spheres
Law making powers of local governments
• Loal goeets hae the poe to ake las alled -las – the application of these laws is
quite limited because they cover a quite limited piece of territory
find more resources at oneclass.com
find more resources at oneclass.com
• Work with the council to host an event in a local park – dealing with the local council with these issues
• As local governments are established by the government of the state / territory in which they function,
the aot ake las that ae iosistet ith that States las
• They also cannot make laws that are inconsistent with Federal laws, or that exceed the powers that the
state has given to the local government
• Local government is given power from the State government – so at hae las that eed oe
power the enforce
Intersecting spheres of government in Australia
The Legislative Process
• The relevant minister receives approval from cabinet
• A bill is drafted for presentation to parliament – a lot of thought needs to be put into the bill because
of the different meanings of words
• Both houses of parliament (except Queensland) must pass the bill before receiving royal assent from
the Governor-General
• Manage and manipulate different interests – so not all bills become legislation
• On royal assent the Act commences as law – after about 28 days it becomes operative law – gives
notice to people
Finding a Particular Act
• If you have to find a copy of particular legislation, for example the Occupational Safety and Health Act
1984 (WA), these can be found:
- In law libraries
- On the internet e.g. austlii, ComLaw, Federal Registration of Legislation
- State law publisher
• Good information on the most important provisions of a piece of legislation can be found in pamphlets
/ brochures / guides produced by the government agency that is responsible for ensuring compliance
with that legislation e.g. Worksafe and bullying
An approach to reading legislation
• Skim through the table of provisions, looking for the provision/s that cover what you are looking to
clarify
• Read the provision/s through a few times so that you can better understand what it is stating
• Refer to the definitions section if there are terms in the provision/s that might need to be defined
• Note a cross referencing of provisions (where one provision directs you to another provision that
works with it)
Federal
Government
State
Government
Local
Government
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Sources of law legislation and case law. Identify the different sources of law in australia: understand legislation as a source of law, outline the legislative process and associated terminology, understand case law as a source of law. Explain the principles according to which case law is made. Be able to apply case law by analogy. Moves in response to shifting societal conditions, attitudes and values, but it still has its basic principles, which do not change, as a foundation. Technological shifts privacy laws, has had to update and change. Law making bodies in australia: government ministers and officials with specified powers (the executive) Create laws but cannot enforce the law: legislatures and local government councils (the legislature) Create enacted law: the courts (the judiciary) Politicians, who are members of parliament, work with the legislative branch of government to create legislation / statute law (enacted law) If they have something they want to change they discuss with the legislature.
