In-depth Notes on Australian Law Sources and Legislative Processes

Sources of Contemporary Australian Law

Key Concepts and Success Criteria

  • Understand the role and structure of Parliament.

  • Explain the process of passing legislation.

  • Identify examples of delegated legislation.

Types of Law in Australia

  • Common Law: Laws developed by judges through court decisions.

  • Statute Law: Laws made by Parliament.

  • Constitutional Law: Governs the structure of government and its powers.

  • Customary Law: Indigenous laws recognized in Australia.

  • International Law: Laws governing relationships between nations.

Legislative Process

  1. Introduction of a Bill: Any Member of Parliament (MP) can propose a bill.

  2. House of Representatives:

    • 1st Reading: Bill is introduced but not debated.

    • 2nd Reading: Members debate and vote on the bill’s main idea.

    • Committee Stage (optional): Detailed examination by a committee.

    • 3rd Reading: Final vote on the bill.

  3. Senate:

    • Similar process as the House of Representatives (1st Reading, 2nd Reading, Committee Stage, 3rd Reading).

  4. Governor-General Approval:

    • Requires Royal Assent to become law and turn the bill into an Act of Parliament.

Key Definitions:

  • Bill: Proposed new law.

  • Act of Parliament: Law that results from a successfully passed bill.

Delegated Legislation

  • Laws made by bodies other than Parliament, authorized by an enabling act.

  • Types of Delegated Legislation:

    1. Regulations: Created by the Governor-General or state governors.

    2. Ordinances: For Australian Territories.

    3. Rules: Made for government departments.

    4. By-laws: Created by local councils.

Advantages of Delegated Legislation

  • Expertise: Laws can be made by experts in the relevant fields.

  • Efficiency: Frees up parliamentary time for important issues.

  • Flexibility: Easier to amend delegated legislation.

Disadvantages of Delegated Legislation

  • Lack of Checks: Parliamentary members may lack time to scrutinize these laws thoroughly.

  • Inconsistencies: With various bodies involved, laws may differ greatly.

  • Public Awareness: Often enacted without significant public input.

Separation of Powers

  • Three Arms of Government:

    1. Legislative: Makes laws (Parliament).

    2. Executive: Implements laws (Government).

    3. Judiciary: Interprets laws (Courts).

  • The separation ensures that no one branch dominates the others, maintaining a balance of power.

Import of International Law in Australia

  • Monist System: Automatically incorporates international law into domestic law upon ratification.

  • Dualist System: Requires domestic laws to be enacted independently to implement international law. Australia is a dualist state.

Examples of International Treaties Incorporated into Australian Law

  • Human Rights Act 2004 (ACT): Based on the International Covenant on Civil and Political Rights.

  • Family Law Act 1975 (Cth): Reflects the Convention on the Rights of the Child.

Aboriginal and Torres Strait Islander Customary Law

  • Recognized by the Native Title Act 1993, it acknowledges land rights based on traditional laws.

  • The Dreaming: Central to Indigenous law, explaining the creation and custodianship of land.

Key Principles of Customary Law

  • Collective guardianship instead of private ownership.

  • Allows for traditional dispute resolution processes involving community elders.

Summary of Learning

  1. Legislative Process: Familiarize yourself with how a bill becomes law.

  2. Types of Law: Distinguish between different legal frameworks.

  3. International Law’s Role: Understand its impact on domestic laws.

  4. Indigenous Law: Recognize the integration and significance of first nations' law in Australia.