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Sources of contemporary australian law 2

Sources of contemporary australian law 2






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    Sources of contemporary australian law 2 Sources of contemporary australian law 2 Presentation Transcript

    • Sources of Australian Contemporary Law
    • AKA ‘Legislation’ and ‘Acts of Parliament’
      The Australian Constitution sets out the powers of state and federal parliaments
      Statute Law (Parliament)
    • All states except QLD are Bicameral, meaning two chambers or houses of parliament
      Federal: House of Representatives and Senate
      State: Legislative Assembly and Legislative Council
      Governments are elected on holding electorate seats not overall popularity
      Structure of Parliament
    • When a Bill becomes a law
      1. Formulation Stage
      2. Drafting Bill Stage
      3. First Reading
      4. Second Reading
      5. Committee Stage
      6. Third Reading
      7. Royal Assent Stage
    • What are the advantages and disadvantages of this processes?
      Discussion Point:
    • Legislation made by non-parliamentary bodies – delegated to subordinates (local council)
      Regulations – Governor-General, State Governor
      Ordinances – Australian Territories
      Rules – Government departments
      By-laws – Local Councils
      Delegated Legislation
    • The Constitution
      prior to the Constitution, Australia consisted of six separate colonies under the British government
      the Constitution commenced on 1 January 1901 to create the Commonwealth of Australia
      it created the states, the Commonwealth and the federal parliament, and outlined the ‘division of powers’ between the Commonwealth and states
    • the Constitution defines how power is divided between the Commonwealth and states to make laws
      section 51 of the Constitution lists powers the Commonwealth shares with the states
      section 52 lists some exclusive Commonwealth powers
      section 109 says that Commonwealth laws will override any state laws if they are inconsistent
      matters not listed are considered ‘residual powers’ for the states
      Division of Power
    • Legislative Powers – the legal power or capacity to make laws
      Concurrent Powers – powers held by state and federal parliaments at the same time
      Exclusive Powers – powers that can be exercised only by federal parliament
      Residual Powers – those remaining matters on which the state can legislate that are not referred to in the Constitution
    • Charles de SecondatMonteesquieu “Civil liberties are at risk if the key organs of the government are controlled by one person or group”
      Separation of Powers
    • 3 areas that are separated
      • legislature – which includes the lawmakers (i.e. parliament)
      • executive – includes the ministers and government departments who administer the law
      • judiciary – includes the judges and courts who interpret and apply the law
      In Australia, the legislature and executive are not clearly separated, but the Constitution ensures the judiciary is strictly separated from the non-judicial arms of government
    • the High Court of Australia is the highest court in Australia, higher than all other federal and state courts
      originally, matters from state courts could still be appealed to the Privy Council in the UK, but this avenue was cut off with the Australia Act 1986 (Cth)
      The Role of the High Court
    • the High Court also hears cases involving interpretation of the Constitution – these have been very influential in defining Australia
    • the High Court is the highest court in Australia – its decisions are final and cannot be appealed
      appeals can be made from state and territory supreme courts and from federal courts
      the High Court must grant leave to appeal before it will review a case – it only grants this in rare cases
      Appeals to the High Court
    • judicial review involves review by a court of a decision made by a government official or department
      a more efficient way to appeal a government decision is through the Administrative Appeals Tribunal, which can review the merits of a decision
      Judicial Review