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Questions and Answers
What is the primary legislative power of state and territory legislatures?
In the case of conflict between Commonwealth and state legislation, what happens?
What type of laws can local governments enact?
Which section of the Commonwealth Constitution defines the scope of the legislative power of the Commonwealth.
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What happens to local government by-laws that exceed their authorized powers?
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What is the primary focus of the week's lecture?
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What type of law is described as being dynamic and constantly changing?
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Which of the following is NOT a body with law-making power in Australia?
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What term is used to refer to laws made by legislatures in Australia?
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Which act serves as an example of legislation in Australia?
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What is the relationship between Australian law and English law according to the lecture?
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Which statement describes the general nature of legal changes in a country?
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What is one key characteristic of the legal systems influenced by colonial settlement?
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State and territory legislatures have general legislative power only over local affairs.
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The Commonwealth Parliament has broader legislative power than the state and territory legislatures.
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If both Commonwealth and state legislation exist in the same sphere, both can apply simultaneously without any issues.
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Local governments can create by-laws that automatically override state law if there is a disagreement.
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Local governments derive their legislative powers from state and territory governments.
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Australian law has remained static and unchanging over the last 200 years.
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Indigenous law and custom have been completely replaced by Western legal systems since colonization.
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The legislative process in Australia is solely conducted by local councils.
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Roman law and English law are the two main streams of Western jurisprudence influencing Australian law.
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An Act of Parliament in Australia can also be referred to as statutory law.
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The Spam Act 2003 (Cth) is an example of common law.
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Changes made to a nation’s laws often involve fundamental shifts in legal principles.
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Both legislatures and courts have recognized law-making powers in Australia.
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What limits the legislative power of state and territory legislatures in Australia?
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Under what condition can local government by-laws become invalid?
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What happens when both Commonwealth and state legislation exist in the same area of law?
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How does the Commonwealth Constitution define the legislative powers of the Commonwealth Parliament?
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What is the role of the Commonwealth in relation to state laws in the event of a conflict?
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What are the two main streams of Western jurisprudence that influence Australian law?
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How does Australian law differ from English law, despite their similarities?
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What term is used to describe the laws enacted by legislatures in Australia?
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What dynamic aspect of law is highlighted in the lecture?
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Which bodies in Australia are primarily responsible for making laws?
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What role did Indigenous law have in Australia prior to European colonization?
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Give an example of an Act of Parliament in Australia.
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Why must legal changes in Australia be enacted by recognized authority?
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State and territory legislatures have the power 'to make law for peace, order and good ______'.
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Local governments create laws known as ______.
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The federal legislation prevails over state legislation to the extent of any ______.
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The Commonwealth Constitution specifies that the Commonwealth Parliament can legislate in relation to ______ matters only.
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If a local government by-law is inconsistent with state or federal law, it will be ______.
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Before Europeans arrived, ______ law and custom applied in Australia.
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The two main streams of Western jurisprudence are ______ law and English law.
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Law made by a legislature is known as ______ or statutory law.
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In Australia, local governments derive their legislative powers from state and ______ governments.
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Australian law has developed as a legal system distinct from ______ law over 200 years.
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The ______ Act 2003 (Cth) is an example of legislation in Australia.
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Legal change in Australia must be made by a body with recognized ______ powers.
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In Australia, there are many ______ – the Commonwealth, states, and self-governing territories.
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Study Notes
Australian Law's Origins
- Australian law is largely derived from English law due to Western European colonization.
- Indigenous law and custom existed before European arrival, their status since colonization is a complex and ongoing issue.
- Two main streams of Western law are Roman law (Civil law) and English law (Common law).
- Many countries, including Australia, have legal systems based on either English law or Roman law, or a combination of both.
Law: Dynamic and Ever-Changing
- Law constantly evolves, with changes occurring over time, but often focusing on details rather than fundamental principles.
- Australian law has developed its own characteristics distinct from English law despite sharing similarities due to its shared origins.
Law-Making Powers in Australia
- Law-making in Australia is authorized by bodies with recognized legislative power.
- Two major bodies with law-making powers are:
- Courts
- Legislatures (Commonwealth, states, territories) and local government councils (with specified powers).
Legislation: The Law Made by Legislatures
- Law made by a legislature is referred to as "legislation," "statutory law," or "Act of Parliament."
- Each Act has a unique name, like the "Spam Act 2003 (Cth)."
- State and territory legislatures typically have general legislative power "to make law for peace, order and good government" within their respective territories.
- State and territory legislatures share some powers with the Commonwealth parliament, as outlined in s 51 of the Commonwealth Constitution.
- The Commonwealth government has less general legislative power than state and territory governments, with its power limited to specific areas outlined in the Commonwealth Constitution, particularly in s 52.
- The Commonwealth Constitution in s 109 clarifies that where Commonwealth and state/territory legislation overlap and potentially conflict in areas of shared legislative power, the Commonwealth legislation prevails.
- Local governments are established by state and territory governments with powers to make laws called "by-laws."
- By-laws are subject to validation, being invalid if inconsistent with state/federal law or exceeding granted powers.
Origins of Australian Law
- Australian law has roots in both Aboriginal law and Western jurisprudence.
- Western European colonization introduced Roman law and English law.
- Indigenous law and customs still exist in Australia despite colonial influence.
Sources of Law in Australia
-
Legislation: Law made by legislatures.
- Commonwealth Parliament: Makes laws for the whole country.
- State and Territory Parliaments: Make laws for individual states or territories.
- Local Governments: Make by-laws for specific regions.
- Common Law: Judge-made law.
The Legislative Process
- Commonwealth Constitution: Defines the powers of the Commonwealth and State Parliaments.
- State and Territory Legislatures: Have general power to make law for "peace, order, and good government" within their jurisdictions.
- Commonwealth Parliament: Has specific powers outlined in the Constitution.
-
Shared Powers: Some powers are shared between the Commonwealth and States.
- Section 109 of the Constitution: If Commonwealth and State laws conflict, Commonwealth law prevails.
- Local Government By-laws: Must be consistent with state and federal laws, and within the scope of their powers.
- Statutory Interpretation: The process of determining what a statute means and how it should be applied.
Different Types of Law in Australia
- Legislation: Also known as statutory law or an Act of Parliament.
- By-laws: Laws created by local governments.
Key Features of Australian Law
- Dynamic System: Law is constantly changing and evolving.
- Similarities with English Law: Australian law shares many similarities with English law due to its historical influence.
- Limited Powers: Each level of government has specific, limited law-making powers.
- Separation of Powers: Power is divided between the legislative, executive, and judicial branches of government.
Australian Law Origins and Development
- Aboriginal law and custom existed before European arrival.
- Western European colonisation brought their legal systems to Australia.
- Two dominant legal traditions: Roman law (civil law) and English law (common law).
- Australia’s legal system is primarily based on English law.
- Australian law continues to evolve and differentiate from English law.
- Legal change stems from bodies with law-making authority.
Sources Of Law in Australia
- Courts: Make common law through case decisions.
-
Legislatures: Make legislation (statutory law) through Acts of Parliament. This includes:
- Commonwealth Parliament
- State and Territory Parliaments
- Local Government Councils (through by-laws)
Legislative Power in Australia
- State and Territory Parliaments: Have general power to make law for peace, order, and good government within their jurisdiction.
- Commonwealth Parliament: Has power to make law in specific areas defined by the Commonwealth Constitution.
-
Shared Powers: Both Commonwealth and state/territory legislatures can legislate in some areas.
- If laws conflict, Commonwealth law prevails.
-
Local Government Councils: Established by state/territory governments and have limited powers to make by-laws.
- By-laws must be consistent with state and federal laws.
Legislative Process
- Each Act of Parliament has a unique name, like the Spam Act 2003 (Cth).
- The legislative process involves drafting, debating, and passing a bill into law.
- The process is outlined in the Australian Constitution and each jurisdiction's legislative framework.
- The process and terminology vary between jurisdictions.
Statutory Interpretation
- Definition: Interpreting and applying statutory law to specific cases.
- Purpose: Ensuring that legislation is applied fairly and consistently.
- Principles: Judges must consider legislative intent, context, and the purpose of the legislation.
Origins of Australian Law
- Australia's legal system is primarily based on English law, which arrived with European colonization.
- Aboriginal law and custom existed before colonization, but its status remains complex.
- Western jurisprudence encompasses Roman law (Civil law) and English law (Common law).
Dynamics of Law
- Australian law has evolved distinct from English law over 200 years, while retaining fundamental principles.
- Legal changes occur over time, with modifications being more common than complete overhauls.
Law-Making Bodies in Australia
- Two main law-making bodies:
- Courts
- Legislatures and local government councils, including government ministers and officials with specified powers.
- The focus is on legislation made by Australian legislatures.
Legislative Bodies in Australia
- There are numerous legislatures in Australia, including the Commonwealth, states, and self-governing territories.
- The Commonwealth and state legislatures can be referred to as either legislatures or parliaments.
- Law made by a legislature is called 'legislation', 'statutory law', or an 'Act of Parliament'.
General and Specific Powers of Legislatures
- State and territory legislatures have general legislative power to "make law for peace, order and good government," limited to their jurisdiction.
- They share some powers with the Commonwealth parliament (e.g., see s 51, Commonwealth Constitution).
- The Commonwealth government has less general legislative power than state and territory governments.
- The Commonwealth constitution grants the Commonwealth parliament power to make law on specified matters only (e.g., s 52, Commonwealth Constitution).
Reconciling Conflicting Laws
- When the Commonwealth Parliament and a state or territory legislature legislate on a shared power, their enacted provisions coexist as long as they don't conflict (see s 109, Commonwealth Constitution).
- If there's a conflict, federal legislation prevails over state legislation to the extent of the inconsistency (s 109, Commonwealth Constitution).
Local Government and By-laws
- Local governments are established by state and territory governments.
- They have specified power to make laws called 'by-laws'.
- By-laws are invalid if inconsistent with state or federal law or exceeding the local government's powers.
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Description
Explore the foundations of Australian law, which is primarily based on English law due to colonization. This quiz covers the influences of Indigenous law and the evolution of legal systems, highlighting the distinguishing features of Australian law in comparison to its English counterparts.
