Australian Law: Legislation as a Source of Law PDF

WEEK TWO 2.1 LEGISLATION AS A SOURCE OF LAW PURPOSE OF THIS WEEK’S LECTURE VIDEOS Objectives: To understand the origins of Australian law; to account for how law develops and changes; to identify the different sources of law in Australia; to explain legislation as a source of...

WEEK TWO 2.1 LEGISLATION AS A SOURCE OF LAW PURPOSE OF THIS WEEK’S LECTURE VIDEOS Objectives: To understand the origins of Australian law; to account for how law develops and changes; to identify the different sources of law in Australia; to explain legislation as a source of law; to outline the legislative process and associated terminology; and to explain the principles of statutory interpretation.  Prior to the arrival of Europeans in Australia, Aboriginal law and custom applied in Australia. About 200 years ago, Western Europeans colonised many parts of the world, taking their law with them. What of the status of Indigenous law and custom in Australia since? There are two main streams of Western jurisprudence: Roman law (sometimes referred to as the Civil law) and English law (often referred to as the Common law). The history of colonial settlement by Western Europeans explains why many countries have a national law that is based on either English law or Roman law, and sometimes on a combination of both.  Law is dynamic rather than static – it is constantly changing. Over a 200 year period, Australian law has developed as a legal system distinct from English law. The changes that are made to a nations laws tend to be changes of detail rather than the wholesale adoption of fundamentally different principles. The legal system of a country therefore tends to retain its basic principles and character, despite ongoing change. This explains why Australian law still shares many similarities with other legal systems that are also based on English law. Legal change must be brought about by a body with a recognised law-making power.  There are two major bodies in Australia with law-making powers. They are: The courts Legislatures and local government councils (and Government ministers and officials with specified powers) In this lecture, the focus is on law made by Australian legislatures. In Australia there are many legislatures – the Commonwealth, states and self-governing territories all have legislative bodies. The Commonwealth and state legislatures can be referred to as either legislatures or parliaments.  Law made by a legislature is called ‘legislation’ or ‘statutory law’ or an ‘Act of Parliament’. Each Act has a name. An example is the Spam Act 2003 (Cth). Copyright Parliamentary Education Office  Each state and territory legislatures has a general legislative power “to make law for peace, order and good government”. This power is limited to their particular territory. State and territory legislatures share some powers with the Commonwealth parliament. See, for instance, s 51, Commonwealth Constitution. The Commonwealth government has less general legislative power than the state and territory governments. The Commonwealth constitution gives the Commonwealth parliament power to make law in relation to specified matters only s 52, Commonwealth Constitution. Continued… If the Commonwealth Parliament and a state or territory legislature legislate in a sphere where legislative power is shared, the enacted provisions exist alongside each other as long as the provisions do not conflict. S 109, Commonwealth Constitution If Commonwealth and state or territory legislation conflicts in Copyright - Adelaide Advertiser a sphere where the power is shared, the federal legislation prevails over the state legislation to the extent of the inconsistency.  Local governments are established by state and territory governments They have specified power to make laws called ‘by-laws’. By-laws will be invalid if they are inconsistent with state or federal law, or if they exceed the powers given to the local government.