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Lecture 2

12001 Lecture Notes - Lecture 2: Royal Assent, Good Governance, Ten Acres


Department
Information Systems
Course Code
12001
Professor
Christian
Lecture
2

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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
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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 Cooealth goeets poe 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 oes the Cooealths poe 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
Loal goeets hae the poe to ake las alled -las – the application of these laws is
quite limited because they cover a quite limited piece of territory
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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 aot ake las that ae iosistet ith that States las
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 at hae las that eed oe
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
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