4. making laws

{Making Laws

Sources of lawHow laws are made in QueenslandHow to read and understand statute law

10 Legal Studies [email protected]

Laws are made by: The Constitution of Australia Parliament Courts/Judges

Sources of Law


Federal Parliament gets their right to make laws from the Constitution

State Parliament gets their right to make laws from what is not in the Constitution

The Constitution sets out three types of powers:

Exclusive Concurrent Residual

The Constitution


Exclusive powers are those that can only be exercised by Commonwealth Parliament

Ie. Things that are laws Australia-wide Includes:

Armed forces, imports/exports, passports, currency, weights and measures, etc


Concurrent powers are those which both State and Federal Parliament can make laws for

This includes: Taxation, trade, marriage and divorce, etc

Note: The Commonwealth does not have to create laws on concurrent powers, but can if they wish. If they do then the Federal law prevails over the State law.

Eg. Marriage – Qld could make its own marriage laws, but federally we have the Family Law Act 1975 (Cth) so it prevails


Residual powers are those that a state can make laws for

Ie. Queensland laws that have no federal counterpart

This includes: Education, transport, housing, health and

welfare issues, etc The Commonwealth is prohibited to

make laws on these areas under the Constitution


Go to www.comlaw.gov.au Type ‘constitution act’ into the search

bar (top right hand corner) Find the current Constitution to

download

http://www.comlaw.gov.au/


Find s51 (section 51) of the Constitution Answer the following questions:

Does the Commonwealth Parliament or the Queensland Parliament have power under s51 to issue fishing licences on Stradbroke Island?

What are five powers listed in s51 that, in your opinion, should be exercised only by the Commonwealth and not by the states? What are your reasons?


Three levels of parliaments responsible for lawmaking:

1. Federal2. State3. Local

Parliament


Statute law is the most important source of law in Australia

Statute law is the name given to laws made by a Parliament (also called legislation or an Act of Parliament)

Passing of a law by Parliament


It is important because: It is the most common method of making

laws It overrides judge-made law if there is

inconsistency There is no limitation on its creation,

whereas judge-made law must be made based on a case


List the 9 Australian parliaments They have the following legislative

powers: Pass new laws Amend existing laws Repeal laws


Pass new laws: Eg. Queensland passed the Summary

Offences Act 2004 (Qld), which superseded the Vagrants, Gaming and Offences Act 1931 (Qld)

This kept some old laws and added new ones

The Federal Euthanasia Laws Act 1997 (Cth) was passed by Federal Parliament to abolish the NT’s Rights of the Terminally Ill Act 1996

Queensland legalised surrogacy for the first time with the passing of the Surrogacy Act (Qld)


Amend existing laws: 2006 – Federal Parliament passed the

Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act, which changed the law to allow embryonic stem cell research

1997 – The Queensland Criminal Code was amended to add a specific section on graffiti offences and to introduce the crime of computer fraud


Repeal laws: In 1922 the Qld Criminal Code removed

the section allowing the death penalty In 1986 the same Act had the punishment

of whipping removed Some laws are abolished because they

contain archaic laws or outdated concepts


Queensland’s parliament is unicameral, this means we have one house (the lower house)

Australia and every other state have a bicameral system – two houses (the upper house and the lower house)

We do this because it makes it easier to pass laws

How laws are made in Qld


Federally, laws are approved by the lower house and then the upper house before finally being given royal assent and then becoming enforceable

In Queensland, laws are approved by the lower house and then given royal assent before becoming enforceable

There are many steps that the lower house goes through, but we won’t look at that in any real detail


Read the Learner.Link document ‘Understanding a law made by parliament’

From within the PDF complete the following:

‘Practical Application’, Q1-5, p.65 (under picture of guns)

Define ‘surrogacy’ ‘What do you think?’, Q1-3, p.66

Understanding Statute Law