LAWS1205 Study Guide - Final Guide: Haplogroup No, Workchoices, Section 51(Xx) Of The Constitution Of Australia
Week 5
Tuesday, 4 April 2017
13:43
Aspects of power: understanding the nature and scope of any power
The jurisdictional limits or the subjects over which the power exists (concerning the
field of activity over which the power may be exercised and the territorial limits within
which it is effective )
The mode of action that the power permits (relating to the procedural and evidentiary
rules that govern the exercise of power, .e.g. judicial and quasi-judicial powers are by
their nature exercisable only in accordance with the requirements of natural justice)
*Quasi-judicial
The action taken and discretion exercised by public administrative agencies or bodies that are
obliged to investigate or ascertain facts and draw conclusions from them as the foundation for
official actions.
The consequence of the exercise of power (i.e. does it change legal relations and
create or extinguish rights?)
Legislative Power
Legislative act" the creation and promulgation of a general rule of conduct without
reference to particular case"
Once a rule may be considered general, in the sense even when it does not apply to all
persons, provided that it applies to a class identified by general characteristics and not
by individual designation
Hence the non-culpability rule concerning children in criminal law is a general rule
whereas a bill of attainder or a bill of pain and penalty that punishes named individual is
not
Polyukhovich v Cth: the HC expresse the view that such enactment were beyond the
legislative power of the Cth Parliament
R v Davison: whereas a judicial decision" declares and enforces liabilities as they
stand on present or past facts and under laws supposed already exist
Legislation looks to the future and change existing conditions by making a new rule
Legislative power is much less limited procedurally than judicial and executive
power, because the common law system, where the doctrine of precedent, judicial
decisions generate precedents having the force of law
Courts can only decide questions of law that arise before them, no general authority to
make law
Their statements which are no relevant to the case obiter dicta are not binding
The further away a question is from the case, the less authoritative is the judicial
answer
Legislations that involve matters of policy or principle should be made by parliament
and not by the executive branch
Delegated legislation is subject to parliamentary scrutiny
The nature of sub ordinate legislation
Legislative rule made by an executive agency pursuant to an authority delegated by
the legislature
Authority usually contained in a section towards the end of a statue, delegating power
to the Govenor General, a governor, a minister, or a statutory authority to make rules to
supplement this Act
find more resources at oneclass.com
find more resources at oneclass.com
Usually deals with matters of detail and procedure to supplement the primary rules in
an Act
Reasons for delegation is for law-making convenience and executive expediency
Flexibility: rules can be changed more easily and respond to industry rules, industry
and consumers can be consulted more effectively about rule changes
Parliamentary oversight
Scrutiny of subordinate legislation
3 elements
1. Tabling: required to be tabled in each House of the parliament soon after it has
been made and notified in Gazette. If the legislation is not tabled within 5-15 days after
being made, it ceases to have effect from the final date for tabling.
2. Scrutiny: referred to a specialist scrutiny committee within the parliament,
examine whether the sub ordinate legislation is in accordance with the statue, does not
have a retroactive operation, does not trespass unduly on personal rights and liberties,
contains appropriate procedures for independent court , does not contain matter more
appropriate for parliamentary enactment
3. Disallowance: within a designated period after the subordinate legislation has
been tabled, it could be disallowed for any reason.
Subordinate legislation can commence operation before the house of the parliament
has had the opportunity to disallow it
Legislation Act 2003 (Cth)
ss 8, 38, 42-48
Limitation: delegation of legislative power and abdication of legislative power
Legislative instruments: regulations, rules and other subordinate legislation made by
the executive
Section 25 requires all legislative instruments be registered as soon as practicable and
section 38 requires that they be laid before each house within 6 sitting days of the house
after registration. Any instrument not so tabled ceases to have effect. Section 42 then
allows 15 sitting days within which notice may be given of a motion to disallow the
instrument
Victorian Stevedoring & General Contracting Co Pty Ltd & Meakers v Dignan
(Dignan's case)(1931)CLR
Stevedoring Pty through its foreman Charles Meakes, gave preference to a non-
member of the WWF, Aubrey Campbell, Cecil Dignan, a navigation inspector, laid
charges against both the company and Meakes
Both were convicted by the magistrate
The HC upheld section3 of the transport workers act was valid .
The separation of power doctrine was held to be no obstacle to the vesting of
legislative power in the executive
The regulation was validly in force from the time of their making on 26 June 1931
until the time of their disallowance on 29 july 1931, therefore on 24 July 1931, the
company was duly convicted under a law in force,
The practice of delegated legislation was not endorsed without qualification
Power conferred by statue
Additional power are often conferred
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Aspects of power: understanding the nature and scope of any power. The jurisdictional limits or the subjects over which the power exists (concerning the field of activity over which the power may be exercised and the territorial limits within which it is effective ) The action taken and discretion exercised by public administrative agencies or bodies that are obliged to investigate or ascertain facts and draw conclusions from them as the foundation for official actions. The consequence of the exercise of power (i. e. does it change legal relations and create or extinguish rights?) Legislative act" the creation and promulgation of a general rule of conduct without reference to particular case" Once a rule may be considered general, in the sense even when it does not apply to all persons, provided that it applies to a class identified by general characteristics and not by individual designation.
