Chapter 5 - Lawmaking

types of law like things

customs, morals, rules, laws

customs

• Learned by immersion in culture and imitation

• Enforced by social pressure

• Vary between cultures (e.g. table manners)

rules

• Apply in specific places, times, or to specific people

• Enforced by officials (e.g. referees, teachers)

• Example: school rules

morals

• Innate sense of right and wrong

• Enforced by an internal moral compass

• Mostly universal across cultures (e.g. murder is morally wrong)

laws

• Apply to all people, all places, all times within a jurisdiction

• Enforced by the executive and through legal sanctions by the judiciary

• Encode and reinforce morals by codifying them into law (e.g. keeping left while driving)

• Include Aboriginal customary law and international law

• Apply to the population of a sovereign political entity with a system of government in a territorial state

• Made by the legislature, enforced by the executive, interpreted by the judiciary

jurisdictions of law (geographical and legal)

Geographical Jurisdiction

• Unitary states (e.g. New Zealand): laws apply nationally

• Federations (e.g. Australia):

  • Federal laws = national jurisdiction

  • State laws = subnational jurisdiction

  • Powers are distributed across jurisdictions

Legal Jurisdiction

• Based on the type of law (e.g. family law, trade law)

• Examples:

  • Family law (marriage, divorce) = concurrent power

  • Tariffs = exclusive federal power

  • Land use planning = residual power

• The Constitution outlines the legal jurisdiction of different government levels

Power

• The coercive capacity to ensure compliance with:

  • Rules (e.g. school discipline)

  • Customs (e.g. parental discipline)

  • Laws (e.g. fines, imprisonment)

• Enforced by fear of punishment

• Limited by constitutions and statutes

• Separated, checked, and balanced to prevent abuse

• Citizens are governed under the rule of law, meaning they are subject to laws they help shape

types of law

• Constitutional law

• Statute law

• Common law

• Delegated legislation

Constitutional law

• Superior or fundamental law

• Establishes jurisdiction of power (unitary or federal)

• Outlines government processes (e.g. elections)

• Protects fundamental rights (e.g. right to vote)

• Codifies procedure for constitutional change

• Forms the three branches of government, making it superior to ordinary law

• Requires referendums to amend (direct democracy)

• Became official through referendum

common law

• Developed by courts

• Based on precedents and case law

Statute law

• Superior to common law — prevails in conflict

• Parliament (legislature) makes statute law; judges are appointed, not elected

• Prevents breach of separation of powers (judges should not have equal law-making power)

Purpose of statute law

• Implementing government policies

• Authorising government spending through money bills

• Amending existing statutes

• Consolidating old statutes

• Establishing legal frameworks (e.g. cooperative federalism)

• Responding to developments in common law

• Regulating operations of other branches (checks and balances, rule of law)

Implementing government policies

• Governments must act within the rule of law to fulfil agendas and mandates

• They seek a majority in the House of Representatives to pass laws

• These laws reflect their promises and ideological goals

• Once passed by both houses, policies become law

Consolidating laws

To simplify, streamline, and update laws by repealing multiple old acts and replacing them with a single, comprehensive act.

• Improves legal coherence

• Reduces inefficiencies and confusion.

• Ensures laws remain current.

• Upholds the rule of law: Laws must be known, clear, and coherent.

  • Parliament repealed the Invalid and Old Age Pension Act 1908 and replaced it with the Social Services Act 1947 to consolidate welfare legislation following the 1946 referendum expansion of federal welfare powers.

Budget

• Presented by the Treasurer

• Details expected tax revenue and proposed spending

• Covers a 3-year financial outlook

• Funds:

  • Execution of laws

  • Public service departments (employment, service delivery)

  • Government services (pensions, education, infrastructure, defence)

• Departments are regularly audited for good financial management.

scrutinising bills

Statutes regulating government spending uphold the law and separation of powers by ensuring that governments cannot access taxpayers’ money without legal authorisation.

Lower House:

• Money bills introduced, debated, scrutinised, and amended by committees

• Government usually has majority → bills pass easily

• Supply bills authorise spending to keep government functioning

• House committees reflect party proportions → government usually dominates

Senate:

• Features Estimates Committees, each with 6 senators (government, opposition, independents/minor parties), so committees are independent of government in practice

• Section 83: government spending must have prior parliamentary approval via appropriation bills

senate in scrutinising money bills

The Senate can amend bills not restricted by Section 53

Section 53: prevents the Senate from amending bills for ordinary annual services, but allows them to reject or request amendments

• Compact of 1965 and Section 54 ensure:

  • Bills for ordinary services only include routine expenditure

  • Government cannot attach unrelated measures to these bills to bypass Senate scrutiny

• Protects Senate’s role in amending/blocking non-routine spending

amending and repealing existing law

• Laws must be kept up to date with changing technology, community values, and social change, but they must be obeyed regardless of their merits.

• Laws need to reflect community values; otherwise, law-abiding people may resist them.

• Laws must be responsive to democratic pressures and processes according to the rule of law.

example of amending law

Homosexuality was once criminalised and stigmatized, with marriage inequality.

Over time, community and social values changed (61.6% support in a non-binding plebiscite) to favour changing the principal Marriage Act.

A growing number of parliamentarians openly disputed party positions. Eventually, Parliament passed the amended Marriage Act.

repealing law example

the Abbott government fulfilled a key election promise to repeal the Gillard government’s carbon tax through bills introduced in the House of Representatives, passed by the Senate, and receiving royal assent.

The Abbott government also introduced an annual cycle of repealing old laws that no longer served their purpose or hindered economic activity, called Red Tape Repeal Day.

responding to court decisions

• Courts interpret laws and apply them to cases based on evidence and statute.

• A court's interpretation can change the meaning or application of a law, affecting how the entire act functions.

• Parliament can respond by:

  • Amending legislation to restore its intended meaning.

  • Clarifying ambiguous provisions.

  • Abrogating the court's interpretation if they disagree.

abrogating/ endorsing court decisions

parliament can abrogate court decisions to assert its authority as the supreme law maker if the disagree. statute law overrides common law when they apply in the same area.

e.g. federal court broadened definition of casual work in skene (2008) and Rosato (2020) but parliament rejected and overruled this by inserting a definition of casual work in the fair work act

court rulings can establish new common law principals or discover rights that parliament intends to endorse, reinforce or clarify.

Mabo decision viewed favorably as it rectified a historic injustice, so parliament passed the native title act 1993 to endorse and clarify the high court Mabo ruling

sources of authority for statute law

• The Constitution:

  s 51 – Enumerates federal Parliament's exclusive and concurrent legislative powers.

  s 107 – Reserves all other powers (residual powers) for the states.

  Territories’ legislative power is delegated by the Commonwealth.

• The Crown:

  s 1 – Formally vests legislative power in a Parliament consisting of the Queen (Crown), the Senate, and the House of Representatives.

  s 58 – The Governor-General (on behalf of the Crown) gives Royal Assent, which finalizes a bill into law.

• The People:

  s 7 & s 24 – Ensure representative democracy:

  Parliamentarians are chosen by the people and are delegated authority to make laws on their behalf.

  This creates a system where statute law gains legitimacy from democratic election and accountability.

Delegated legislation

• Superior authorities delegate power to subordinate entities, who are accountable to exercise power under conditions set by the superior authority.

• The superior authority is Parliament.

• Legislative power is delegated by Acts of Parliament, and laws made by the executive under the authority of primary Acts are called regulations.

• Upholding democratic principles

• Parliamentary Sovereignty:

  • Parliament is the highest institution within the government system; all others are subordinate except the Constitution.

• Rule of Law:

  • Executive is governed by law.

• Separation of Powers:

  • Parliament retains ultimate legislative power because it can revoke regulations made by the executive.

Subordinate authorities

• Public service departments.

• Specialist agencies (e.g., security and intelligence agencies).

• Statutory authorities established by Parliament to perform independent functions (e.g., Reserve Bank of Australia).

• Senior Executive Service officials appointed to head these organisations, working under ministers as senior public servants.

• Ministers appointed to be responsible for the above and automatically part of the Federal Executive Council advising the Governor-General.

• All are accountable and subordinate to Parliament by law or Westminster convention.

  • Example: The Treasurer is a Cabinet-rank minister responsible to Parliament.

functions of delegated legislation

• Efficiency

• Responsiveness:

efficiency of delegated legislation

• Relieves Parliament’s burden of detailed lawmaking.

• Parliament makes broad legal frameworks and delegates details to the executive.

• Example:

  • Social Security Act 1991 and Social Security Administration Act 1999 establish welfare and entitlements.

  • Social Security (International Agreements) Act delegates power to ministers to vary regulations based on Australia’s international social security agreements, so Parliament doesn’t have to legislate every detail.

responsiveness of delegated legislation

• Allows government to respond quickly to changing circumstances without Parliament’s slower, deliberative legislative process.

• Example:

  • During the COVID-19 biosecurity emergency, Parliament delegated power to the executive through almost 100 instruments.

accountability of delegated legislation

parliamentary oversight

• Delegated legislation has the same legal force as primary legislation, so the executive must be accountable for regulations.

• The Senate Standing Committee for the Scrutiny of Delegated Legislation monitors executive-made delegated legislation.

• It publishes the Delegated Legislation Monitor weekly with findings and recommendations, including disallowance motions to reject delegated legislation.

henry 8th

• Originated in Henry VIII’s time with the Statute of Sewers 1531

• Gave the king power to modify Acts and make proclamations with the force of statute law

• Undermines separation of powers by letting the executive usurp Parliament’s legislative role

limits on henry 8th

• Limits on Henry VIII clauses:

  • Must stay within constitutional boundaries of Parliament’s legislative power- Dignan’s Case (1931): Henry VIII clauses can’t create laws beyond Parliament’s power

  • Parliament must have the ability to repeal or amend the primary Act-Capital Duplicators Pty Ltd (1992): Clauses are constitutional if Parliament can still repeal/amend the primary Act

• Main safeguard is Parliament itself, but executive dominance over Parliament means they lack will and power for accountability.

• Clauses often lack detail on the extent of executive power, allowing wide interpretation, so courts generally dislike Henry VIII clauses, but have limited power to invalidate them due to High Court rulings

• These clauses give the executive significant legislative power without usual parliamentary scrutiny

impact of henry 8th

• Clauses often lack detail on the extent of executive power, allowing wide interpretation, so courts generally dislike Henry VIII clauses, but have limited power to invalidate them due to High Court rulings

• These clauses give the executive significant legislative power without usual parliamentary scrutiny