2 sources of law

11 LEGAL STUDIES | [email protected] 1

Sources of Law• THE CONST ITUT ION• SEPARAT ION OF POW ERS• LE VE LS OF GOVERNM ENT• L AWS

• STATUTORY INTERPRETAT ION• THE ROLE OF PARL IAME NTS & THE

COURTS• DE LEGATE D LEG ISL AT ION


Where does our law come from?

What is its source?


Common law: judge-made law; based on judges’ decisions over hundreds of years

Statute law: laws made by parliament; most common form of law in our society; takes precedence over common law


The Constitution Long title: Commonwealth of Australia Constitution Act 1900

Gives all levels of government throughout Australia their power and authority to make laws

Constitution: the set of rules that specify the powers, responsibilities and trole sof the governing bodies within a state or territory

◦ Sporting clubs and groups◦ Individual states - The Constitution of Queensland 2001 gives powers to the Qld Parliament, Executive

and Judiciary

Australia’s federation meant we needed a set of rules to govern us and the relationship between federal and state governments


Our Constitution provides powers for the Federal and State governments

Specifies under which areas the Federal govt can make laws (heads of power)◦ Heads of power: subjects about which the Constitution allows the Federal Government to pass laws

Does not list what laws States can make – they can make laws on everything not listed as Federal

These powers are listed under s51 of the Constitution

Exclusive• Commonwealth powers

• Defence• Customs• Currency• External affairs

Concurrent• Commonwealth & State powers

• Trade and commerce• Most taxation• Corporations• Industrial relations• Environment

Residual• State powers

• Health• Education• Criminal law• Property


Why was it appropriate for these areas (currency, defence, etc) to be given to the Federal Government to enact laws?


The Constitution also created the High Court and gave it substantial power◦ Most important power it has is to review federal legislation and decide whether it comes within a head

of power◦ If not, it is invalid/unenforceable◦ Also reviews State legislation to ensure it does not conflict with a valid federal law or with the

Constitution


What is meant by the statement, ‘federal law prevails over State law’?

What circumstances must exist for federal law to prevail?

The Constitution empowers the Federal Government to make laws in certain areas:◦ Where does the Constitution do this? (ie. what section?)◦ Give an example of one concurrent power.◦ Give an example of one exclusive power.

The Constitution does not actually describe what powers the State Governments have to make laws:

◦ How do State Governments know from the Constitution what their powers are?◦ Give an example of one State power.


Levels of Government In Australia there are 3 levels of parliaments responsible for making the laws:

1. Federal (or Commonwealth) Parliament

2. State and Territory parliaments, ie. Queensland Parliament

3. Local authorities (councils and shires), ie. Brisbane City Council or Logan City Council


Remember, Federal Parliament gets lawmaking power from the Constitution (exclusive power)

States get lawmaking power based on what is not listed in the Constitution (residual power)

States then delegate some of their lawmaking powers to local councils/shires


1. Federal (Commonwealth) Parliament

Is in Canberra

Passes laws applying to all Australians

Consists of:A. Crown: the Queen represented by the GGB. House of Representatives: members who represent voters in their local electoratesC. Senate: senators who represent their state or territory as a whole


1A. The Crown:

A new GG is appointed by the PM every 5 years

Major roles include: Opening and closing parliament Giving Royal Assent to legislation Holds reserve powers (powers usually held by the Crown, and not stated in the Constitution) which may

be used during a parliamentary crisis Eg. If a party or member of parliament tries to pass laws without having obtained the approval of a majority of the members of

both houses; or A consistent failure of the parliament to pass laws necessary for the running of the country


1B. House of Representatives:

Consists of 150 Australian citizens

Also called the lower house or the people’s house

Each member represents appox. 75,000-80,000 voters in a geographic area (an electorate), therefore more populated states have more members

Major functions: Represent the interests of their constituents; and Introduce, debate and then pass or reject proposed laws


1C. Senate:

The upper house of Federal Parliament

Also called States’ house and house of review

Made up of 76 senators

States’ citizens elect 12 senators to represent them, Territory citizens elect 2 senators each

Major functions: Equal numbers so that larger/more populate states cannot dominate Reviews Bills sent to it from the House of Reps – cannot change it, but can ask the House of Reps to do so –

bicameral system Makes sure Ministers of the Government and their departments are held accountable – scrutiny. They make sure

the govt is doing its job properly in areas such as education, defence, welfare, etc, as well as investigating topical issues


2. State and Territory Parliaments

Each state has own parliament making laws for their state

89 elected representatives to the Legislative Assembly (lower house) of State Parliament Not to be confused with the federal lower house/house of reps

Queen’s representative in Queensland is the Governor

We have a unicameral parliament – everyone else has a bicameral parliament

We abolished the bicameral system (technically removed the upper house of the State) because: It was seen to stop Bills getting through It made it a long process to get laws passed Was expensive


3. Local Authorities (Councils and Shires)

Each state passed legislation to create local governments

Local authorities have been given wide powers to make laws for their local areas, without having to seek the approval of their State government for each matter

Local authorities are subject, however, to the higher lawmaking authority of the relevant State government


Laws We will look at:

How Parliament decides what the law should be

Drafting laws

How a law is made in Queensland

How a law is made in Australia


How Parliament decides what the law should be

The Govt is made up of people who represent us – therefore they are accountable to us

If we don’t like what the Govt has done, we will probably vote them out

Therefore, the Govt will do what the majority want, as a general rule

However, we are not all interested in the same thing

Some people love the environment, others don’t particularly care

These two groups may want the Govt to act in certain ways


Consider:

Some developers want to build a bridge to Stradbroke Island They see potential and money-making opportunities

Environmentalists are concerned about the damaged to the flora and fauna On the mainland, on Straddie and in the waters between the two

The two groups have different agendas and will want the Govt to do different things

These two groups (developers and environmentalists) are called stakeholders

Every law and Govt activity has stakeholders

Stakeholder: people who have a particular interest in an issue; they are specially effected by it


Drafting Laws

The words of laws must be carefully chosen

They must communicated meaning accurately and clearly

If laws are ambiguous or have loopholes, lawyers and criminals can take advantage of it


Example:

A legal issue arose with the issuing of parking tickets for motorists who parked in bus, taxi and mail zones

The law at the time said that parking tickets and fines would occur for parking in bus, taxi and mail ‘stops’

◦ It did not prohibit parking in ‘zones’ and therefore the parking tickets were not valid

The meaning of ‘zone’ was not seen to be the same as ‘stop’

The Govt had to change the law to make it effective


Example:

An escape artist threw himself off a bridge in Brisbane

He was bound in chains and was performing a stunt whereby he had to escape the chains and swim to safety

◦ Which he did

He was charged with an offence under a law that prohibited people from ‘jumping’ off public structures, including bridges

He was acquitted (not guilty) after his lawyer successfully argued that the man did not ‘jump’◦ ‘Jumping’ requires the body to be raised in flight before dropping, which the escape artist did not do


How a Law is Made in Queensland

We have a unicameral system – one house (lower house: Legislative Assembly)

Federally it is a bicameral system – two houses (upper and lower house: Senate and House of Reps)

In Queensland the law has to pass through a number of stages before it can be enforced◦ But this only happens once

◦ Define ‘bill’ (as a legal/political concept, not as a part of an aquatic bird or a request for payment)


*Called ‘Committee of the Whole’ in your textbook

*


How a Law is Made in Australia

The same as for Qld, but with two houses

You will notice the image on the right goes through the process Qld has twice – once through the House of Reps, and then through the Senate

The only other difference is that at the Royal Assent stage it is passed by the GG, not the Governor


Statutory Interpretation Statutory – as in statute – as in law

So, the interpretation of the law

This is needed as some laws can be ambiguous because of their wording (as discussed previously)

See PDF on Learner.Link: ‘3.5 Understanding a law made by a Parliament’ from Legal Studies for Queensland, Volume 1 (6e), by Woodgate, Black, Biggs & Owens.


A number of rules are used to aid understanding of the intent of an Act, to help the judiciary to interpret the meaning of the law.

These include:◦ Literal rule – courts will apply the dictionary definition of the words used◦ Purposive rule (sometimes called Mischief rule) – looks at the intention of

parliament; achieved by reading through speeches from parliamentary debates to help provide interpretation of meanings or the intent of the Act

◦ Specific rules – refers to reading a particular section in the context of the entire Act to understand the Act’s intention

◦ Golden rule – courts apply the literal meaning of the words used, unless it would lead to an absurdity


Example:

The State Government is concerned that too many people are parking in inner city streets and causing congestion. As a result they pass a law that: ‘No one in charge of a vehicle in the inner city shall park the vehicle in the street.’

Let’s say that Chad is driving through the inner city when his car breaks down. He must leave his car in the street. Has he broken the above law?

The answer will depend on the approach the judge takes when interpreting the above statute.

Apply the literal, golden and mischief/purposive rules to this scenario.


Literal rule: Chad has literally broken the law by ‘parking’ his car in the inner city. The words do not include any exceptions.

Golden rule: the literal rule would lead to an absurdity because someone who has broken down (unintentionally) would be charged.

Mischief/Purposive rule: the Act was intended to stop people deliberately parking their car in the inner city. The Act was not intended to apply to a situation like Chad’s.


The Role of Parliament and the Courts

See Table 1.2.3 on page 23 of your textbook for a comparison of Parliament and the Courts.


Delegated Legislation Often referred to as regulations

Made by the Governor-in-Council (the government minister responsible for the area of lawmaking, in consultation with senior public servants and members of the Cabinet)

Puts into effect provisions of an Act of Parliament

Do not need approval by the parliament

Often used so that regulations can be made and changed quickly

Laws made outside the boundaries are deemed to be ultra vires (beyond power)


Eg. Explosives Act 1999 (Qld) allows regulations to be made

This means people cannot just look at this Act

For example, to understand that it is illegal for the driver of a vehicle containing explosives to allow the vehicle to remain stationary in a public place within a town or city, a citizen must also read s114 of the Explosive Regulations 2003 (Qld)

◦ This then refers the reader to the Australian Explosives Code and the Australian Dangerous Goods Code

While this is useful because regulations can be made and changed quickly, how useful is it, really, if people don’t realise they need to read three other documents to fully get a grasp of the law?