BSB111 Lecture Notes - Lecture 8: Constitution Of Australia, Royal Assent, Alternative Dispute Resolution
Continued Pt 1: Introducing the law and the Australian Legal System
The Sources of Law
- Where does the law come from?
- In Australia, there are 2 sources of law:
▪ Law made by the legislature (parliament)
• Law made by parliament is called legislation, statute or an Act of
Parliament
• Parliament can also delegate its law making power to another body,
laws made by this body are called delegated legislation and
▪ Law made by the courts
Finding the Law
- Primary legal materials -> legislation, case law
- Secondary legal materials -> law textbooks, law journal articles, legal dictionaries, legal
encyclopedias
- Primary legal materials are the direct sources of the law, being:
- Legislation: law made by parliaments (also referred to as statue law or Act of
Parliament)
- Case law: law made by judges (also referred to as common law)
Case Law
- In reported cases, the party bringing he particular case is listed first
- If it is the first time the case has come to court, the person bringing the case is the
plaintiff. The person answering the case is the defendant.
- I a riial ase, the proseutio the Cro rigs the ase letter ‘
- If the case is an appeal from an earlier decision, the person bringing the appeal is the
appellant and the person opposing the appeal is the respondent
Reading the Law
Separation of powers doctrine
- The three arms of government: a distinction between the power to make law, power to
administer law and the power to interpret law
- Legislative power = power to make law, exercised by the legislature
▪ In Australia, this is the Federal parliament and the various State and
Territory parliaments
▪ A parliament is a body of elected representatives that makes laws on behalf
of the citizens
- Executive power = power to administer the law, exercised by the executive
▪ Carry on the business of government, maintain order and security
▪ In Australia this consists of the PM and other ministers, Premier and other
ministers
▪ Day to day governance of the state
- Judicial power = power to interpret and apply the law, exercised by the judiciary
▪ Exercised by courts
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Separation of powers doctrine
- The doctrine of separation of powers is the notion that the legislature, the executive and the
judiciary should as far as possible remain functionally separate. This means:
- The same person should not form part of more than one of the three arms of
government
- One arm of government should not control or interfere with the functioning of
another arm
- One arm should not exercise a function of another arm
Types of legal systems
- Two broad categories:
- Common law legal systems
▪ Based on the British legal system
▪ Two main sources of law are legislation and case law
▪ The judiciary is much more powerful and influential in common law
countries than civil law countries
▪ Courts use an adversarial system (argumentative)
▪ E.g. Australia, UK, Canada and NZ
- Civil law legal systems
▪ Based on the Roman legal system
▪ The primary source of law is legislation in the form of codes, statutes and
constitutions.
▪ Case law is not recognized as a source of law
▪ Courts use an inquisitorial system (questioning, interviewing)
▪ E.g. France, Germany, Russia, China, Japan, Thailand, Korea
The Australian Legal System
BACKGROUND INFO:
- The Commonwealth of Australia Constitution Act was passed by the British Parliament in
1900 and the Commonwealth of Australia came into existence on 1 January 1901.
- Australia is governed by a Federal or Commonwealth government located in Canberra
- Australia also consists of 6 states and 2 Territories – each has its own government
- Some aspects of business law are regulated by Federal law, some by state law and some a
combination of both
LIBERAL DEMOCRACY
- Australia is a representative democracy where laws are made by and the executive
government consists of, elected representatives who exercise their power subject to the rule
of law and to the various Federal and State constitutions
CONSTITUTIONAL MONARCHY
- The Head of State of the Commonwealth of Australia and of the various States is the king or
queen of England. The king/queen is represented in Australia by the Governor-General (fed
gov) and State governors.
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FEDERATION
- The State governments are not subordinate (minor) to the Federal government, power is
shared in accordance with the Australian Constitution.
Pt 2: Understanding the Australian Legal System
The Australian Constitution
Federal and State Relations
Changing the Constitution
- The Australian Constitution sets out how the Constitution can be amended -s128
- The proposed amendment must:
- 1. Be passed by an absolute majority of both Houses of Parliament (fed and state)
- 2. Be put to the Australian voters in the form of a referendum (vote), and passed by
a majority of voters/a majority of voters in a majority of the states
- 3. Receive Royal Assent
The Legislature
- Legislative power is the power to make law, and in Australia is exercised by the Federal
Parliament and the various State and Territory parliaments
Parliament – Structure
- Bicameral parliament: indicates that the parliament has two houses – a lower and upper
house (e.g. Australia)
- Unicameral: indicates the parliament only has one House (e.g. QLD as a state)
Federal Parliament – Lower House
- In the Federal Parliament, the Lower House is the House of Representatives. Each member
of the House is elected to represent a particular electorate (all people in an area who are
able to vote)
- Australia is divided into a number of electorates, each electorate containing approximately
the same number of people
- The political party with the majority of members in the House of Representatives forms
executive government. The Prime minister is traditionally a member of the lower house.
- Approx. 150 people (twice number of senators)
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Document Summary
Continued pt 1: introducing the law and the australian legal system. In australia, there are 2 sources of law: Law made by parliament is called legislation, statute or an act of. Parliament: parliament can also delegate its law making power to another body, laws made by this body are called delegated legislation and. Primary legal materials -> legislation, case law. Secondary legal materials -> law textbooks, law journal articles, legal dictionaries, legal encyclopedias. Primary legal materials are the direct sources of the law, being: Legislation: law made by parliaments (also referred to as statue law or act of. Case law: law made by judges (also referred to as common law) In reported cases, the party bringing he particular case is listed first. If it is the first time the case has come to court, the person bringing the case is the plaintiff. The person answering the case is the defendant.
