the law making process

laws

• most powerful means a group has of influencing + controlling behaviour of its members

• have jurisdiction

jurisdiction

• where the law speaks

• geographical jurisdiction - the land + seas over which laws apply

• legal jurisdiction - the area of law that is covered

law making powers of federal prlt.

• trade + commerce

• immigration

• defence

law making powers of state prlts.

• schools

• hospitals

• public transport

four types of law

• constitutional law

• statute law

• common law

• delegated legislation

statute law

• law made by parliament AKA Acts of Parliament

• superior to common law as laws made by parliament reflect will of people, parliament has democratic authority

3 components of prlt.

• lower house

  • reps people

  • forms govt westminster style

• upper house

  • represents states/regions

  • acts as house of review

  • acts as check + balance on lower house

• crown

  • GG @ cwth. level + governor @ state level

• all parliaments have this system except territories + QLD

law making process in prlt.

• bill must pass through both houses in identical form + receive royal assent

• executive dominance of lower house - govt. bills guaranteed to pass through HoR as govt. controls house

• senate often not dominated by exec. so there is frequent debate and compromise between members

• any member of prlt. may introduce a bill

• non-govt. bills - private members’ bills

sect. 57

• if two houses cannot agree on bill it is said to be ‘blocked’

• sect. 57 allows PM to advise GG to dissolve both houses and call fro double dissolution election

• seen in 1975 with Gough Whitlam after block of supply bills

legislative aims of statute law

• implement policy proposed by exec.

• authorise spending by exec.

• amend existing statute

• repeal existing statute

• consolidate law by combining old statutes

• respond to court decisions and judge made common law

implementing govt. policy

• govts. must act within the law —> need prlt. to make new laws/change old ones to carry out agenda

• executive dominance of lower house gives govt. ability to translate beliefs into law if they can gain support of senate

• Albanese govt. faced challenges passing Housing Australia Future Fund Bill (2023) due to opposition in Senate esp. Greens

authorising expenditure by exec.

• govt. requires budget to execute laws

  • delivering govt. services such as pensions + education

  • involves spending of taxpayer funds

• prlt. has duty to monitor + scrutinise where + how money is spent

• money bills are assessed carefully by committees in senate

• sect. 83 - money cannot be taken from treasury unless authorised by law

amending + repealing existing law

• laws need to keep up to date with changing technology, community values etc

• amending law - Marriage Act 1961 with Marriage Amendment Act 2017

• repealing laws - Abbott govt. repealing Gillard govt.’s Carbon Tax in 2013

consolidating laws

• essential for upholding RoL —> outdated or confusing laws undermine

• prlt. periodically repeals old acts that may cover similar areas and replace them with new ones

• reduces complications + inefficiencies

• eg. creation of Social Services Act 1947 to replace Invalid + Old-Age Pension Act 1908 by creating more pensions such as maternity allowances and student benefits

responding to court decisions

• certain cases require courts to determine meanings of acts

• eg. Mabo v QLD 1992 where HC abolished terra nullius + established CL recognition of native title, prlt. supported CL and created Native Title Act 1993

role of private members in law making

• voting on bills

• serving in parliamentary committees

• initiating private members bills

  • Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017

subordinate authorities

• govt. departments - Dept. of Home Affairs

• specialist agencies - ASIO

• statutory authorities that are governed by an AoP - Australian Electoral Commission

• executive officials such as senior public servants with decision making power - Secretary of the Dept. of Defence

• ministers - members of parliament appointed by govt. to lead a govt. dept. that are responsible + subordinate to prlt.

delegation of power to subordinate authorities

• SAs are parts of exec. branch and are subordinate to prlt.

• agency with delegated power can exercise the power under specified conditions of delegating authorities

• agency has no entitlement to power, power can be removed/limited by authority

delegating authority

• the parliament

• has law making power and authority to delegate it

subordinate authority

• the executive

• government, ministers, departments, agencies + officials

• authorised/entrusted with law making power by AoPs

why law making power is delegated

• efficiency

  • law making power can be low-order so does not need lengthy legislative process

  • eg. adjustments of welfare payments to keep up with cost of living

• responsiveness

  • parliament can be too strong to respond to events

  • DL ensures Aus can respond quickly to changing circumstances/emergencies

  • eg. ASIO has extraordinary powers under ASIO Act

how power is delegated

• through acts of parliament

• acts delegating law-making power will:

  • nominate SA

  • define purpose of delegated law making power

  • specify extent of law making power

  • define circumstances in which power is to be used

judiciary

• 3rd arm of govt.

• checks + balances prlt. through interpretation of statue + constitutional law

• creates own law - common law

courts

• main institution of judiciary

• resolve disputes in cases

• decide application of the law + determine its meaning in particular situations

interpreting the law

• interpreting the law declares the law

• makes it clear how the law operates in areas where there was previously doubt

• allows for future cases to be solved with more efficiency

judicial power

• the power to impose legally binding decisions

• court decisions are legally binding on the parties involved

• aus. uses adversarial trial process

• solve disputes in trials - where adversaries + opponents are in a contest with each other

parties

• legal persons

  • natural persons - real people

  • artificial persons - corporations or government

• courts view both parties as equals before the law (RoL)

courts jurisdiction

• each court in federal + state hierarchies have jurisdictions

• federal courts have jurisdiction over cases involving cth. law across aus.

• state courts have jurisdiction over cases involving state law in their states

• states have a hierarchy of courts with general + special jurisdiction

  • supreme, district + magistrates have general juris.

  • children’s court, family court + coroner’s court have special juris.

common law

• court made law

• requires:

  • overarching principle that underpins system

  • doctrine that is applied by courts in every case

  • hierarchy of courts in which to operate

  • set of rules governing the relationship between courts in a hierarchy

overarching principle

• state decisis

• to stand by what has been decided

• ensures judicial thinking is similar in similar circumstances

• results in:

  • fairness - treated the same as others

  • predictability - judgement based off past judgements

  • consistency - similar cases get similar outcomes

  • flexibility - may be free to create new law if no similar cases

doctrine that is applied in every case

• doctrine of precedent

  • created when judges decide a case where no previous case law applies

  • common law is a body of precedents developed by judges over time

• the way in which courts stand by what has been decided

ratio decidendi

• reason for decision

• when judges explain their reasoning with written decisions

• reasoning is critical component for precedent

obiter dicta

• sayings by the way

• where judges put other considerations that contributed to their thinking

three principles of precedent

• ratio decidendi of judges in higher courts with appellate jurisdiction may create common law

• precedents of higher courts bind lower courts within same hierarchy

• higher courts may be persuaded by RD or OD of lower/equivalent courts

court hierarchy

• superior courts

  • have appellate juris.

  • high, federal, supreme

• intermediate courts

  • have appellate jurisdiction

  • district and specialist

• inferior courts

  • no appellate jurisdiction

  • magistrates court

set of rules governing relationship between courts

• binding + persuasive precedent

• binding precedent

  • binds courts @ lower level in court hierarchy with court that made the precedent

  • requires them to apply RD of higher courts

• persuasive precedent

  • influences courts above + equivalent in court hierarchy in its own + other jurisdiction

evolution of common law

• allowed through the development/replacement of precedents

• happens case by case and is incremental

• judges resist “legislating” by creating new precedents, prefer gradual change compared to rapid changing of statute

• ability to adapt, self-correct + evolve is reason for CL success