Understanding Law: Authority, Regulation, and Elements

• Law is a legal rule that intends to modify behavior
• Laws reflect our values, protect individuals and society, clarify rights and responsibilities, and resolve disputes consistently and fairly
• If laws do not reflect societal values, protests, disregard for the law, and attempts to overthrow the government may occur
• Laws must be stable, known and reflect values to be effective

Main elements of any law

• Consequences: There must be consequences for breaking the law, in both criminal and civil law
• Authority: Parliament is the authority behind the law
• Regulation: Laws attempt to regulate behavior and strike a balance between competition interests

Authority

• Consists of Parliament, Court and Police
• Parliament is the law maker
• Court interprets and applies the law to cases
• Police enforce the law
• The Australian Parliament has three levels: federal, state (6), and local councils

Regulation

• All laws attempt to regulate behavior while balancing competing interests
• It is illegal to racially vilify minorities and defame individuals

Separation of Powers

• Government doctrine created by French philosopher Baron de Montesquieu
• Ensures that no single arm of government can dominate or usurp the power of another
• The US follows this doctrine more closely than Australia

Three Major Branches of Government

• Executive: Puts laws into action, formally vested in the monarch but carried out by the cabinet
• Legislature: Legislative arm of the government; elected representatives in parliament with law-making powers, that propose bills
• Judiciary: Judicial arm of the government, settling disputes by interpreting the law

Checks and Balances

• Legislature checks the executive
• Executive checks the legislature and the cabinet
• Judiciary checks the legislature

Federal Parliament

• Australia has a bicameral parliamentary system, with a second house providing an extra check on legislation
• 76 seats are needed to form a government
• The one with the majority of seats forms the lower house and uses preferential voting (one vote, one value)

Victorian Parliament

• It uses a bicameral system and deals with money bills

Stages in the Passage of a Bill

• An idea is discussed by the Cabinet, which decides whether to approve it
• Under the instructions from the relevant Minister, the Parliament counsel drafts the bill
• The Cabinet the decides whether to approve that bill
• The bill is placed on the agenda and is stated in the house where the Minister resides

Bill Readings

• First Reading: The title of the bill is read, and a vote is taken to proceed
• Second Reading: The minister introduces the bill, explaining its objectives
• It is adjourned to give ministers time to respond
• The public is consulted on their reaction and views
• The shadow minister provides a reply in review
• Second reading debates and incorporates suggestions
• Consideration in Detail (Committee Stage): Scrutinizes the bill in detail which is where amendments are most likely, but can be bypassed
• Third Reading: The bill is read in its final form, and voted amendments can be made
• The bill goes to the other house, who repeats the same procedure
• Clerk of parliament certifies bill
• Royal Assent: The king's representative formally approves the bill and signs it into law
• It then becomes an Act of Parliament, published in the Government Gazette

Bill into Law

• The bill becomes law on a specified date in the Act, or a date specified by the King's representative, or 28 days after Royal Assent

Delegated Legislation

• A major method of law-making where Parliament passes an enabling act, allowing statutory authorities to make rules and regulations over their jurisdiction
• There are four types of sub-ordinate bodies in Australia

Statute Authorities

• Federal: A.C.C.C.
• State: PTV

Executive Council

• Exists at both federal and state levels and comprises the King's representative and the Cabinet Minister
• Can pass 'orders-in-council' allowing law-making when parliament is not sitting or in emergency situations
• Government Departments are given authority to pass regulations, such as temporary immigration visas
• Professional Bodies like A.M.A. make rules on professional duties

Advantages of Delegated Legislation

• Law-making is carried out by experts, and the Party doesn't need to have all the time of law making

Disadvantages of Delegated Legislation

• Specialists of the law are unelected

Two Main Sources of Law

• Statute Law and Common Law

Doctrine of Precedent

• Also known as common law where courts make law
• Applied by a judge in a particular case are followed in future cases with similar facts
• Ratio decidendi: refers to the reasoning behind the court's decisions
• Obiter dictum: refers to statements made 'by the way' in the judgement

Binding precedent

• Set by a higher court, which lower courts in the same hierarchy must follow

Persuasive precedent

• Set in another hierarchy (e.g., NSW or overseas) or said as 'obiter dictum'
• Includes recommendations for parliament to amend or change a particular ACT

More Rules for Precedent

• Precedents set by judges at the same level of the court hierarchy are only persuasive
• All courts are bound by precedent set by superior courts in the same hierarchy
• Old precedents have the same authority if the circumstances still exist

Judicial Techniques to Avoid Precedent

• There are circumstances when it may not be appropriate to follow it

Distinguishing

• Occurs when a lower court may avoid following a binding precedent if the material facts are sufficiently different

Overruling

• A higher court within the same hierarchy sets aside or does not follow a principle of law established in an earlier case, and instead replaces that precedent with a new principle of law

Reversing

• Occurs in appeal cases
• The appellate court changes the decision of the original court because it disagrees with the legal reasoning (ratio decidendi)
• The appellate court will either apply a different precedent or set a new one

Disapproving

• Lower Courts: May express an unfavorable opinion of a high court, but lower courts are still bound to the precedent
• Equal Authority: A court of equal authority may express an unfavorable opinion of an earlier decision