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Topic 3: Sources of Law - Legislation

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Topic 3: Sources of Law - Legislation

This podcast provides an overview of legislation and lawmaking in Australia. It emphasizes that understanding statutory interpretation is a skill developed over time through study and practice. The legislative process begins with a bill, introduced by a minister or private member, which undergoes three readings in both the House of Representatives and the Senate. After approval, it receives Royal assent from the Governor-General (or state governor), becoming an Act. If a bill is twice rejected by the Senate, a double dissolution may occur, as famously happened in 1975. The Constitution grants the Commonwealth exclusive powers (Section 52) and concurrent powers (Section 51). Section 109 ensures that inconsistent state laws are invalid to the extent of the conflict. The Commonwealth can also legislate on non-enumerated areas via its corporations power (e.g., consumer law) or through financial grants under Section 96. Delegated legislation is created by ministers or executive bodies under an enabling Act, covering detailed regulations, orders, and determinations. While necessary for administrative efficiency, it is critiqued for lack of democratic oversight and limited public scrutiny. Examples include biosecurity travel bans and fisheries management regulations. Delegated legislation is valid only if it falls within the powers conferred by the enabling Act; otherwise, it is considered ultra vires and invalid.

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Speaker 1 Welcome to topic Speaker 2 3. Speaker 1 Legislations are vital aspect of how our legal system functions in Australia today and to understand legislations and the skills you're going to need in working through this topic, we'll go over some key Speaker 2 Concepts in this podcast. Lecture Speaker 1 now statutory interpretation and the Speaker 2 skills of working with legislation or something that you won't necessarily get straight away. And that's okay. We'll be building up on that throughout all of your subjects in your study. And you'll still be developing skills. No, doubt as you begin to practice law, you'll begin to find that a lot of these skills are lifelong learning Journeys, and that's okay. But it's a good time now to be, considering how you're going to practice Speaker 1 that and Speaker 2 the sorts of things you need to be aware of. Speaker 1 So a lot in this topic of what I need you to know about Speaker 2 legislation and certainly things like the anatomy of an Speaker 1 act is probably best demonstrated Speaker 2 to you with a screen and enter tutorial context where we can look at things. Speaker 1 At all. So some of the parts that Speaker 2 we will be covering will be really important in tutorials, but in this podcast, I'm going to try and give you a general overview of the key Speaker 1 Concepts and I'll be particularly Speaker 2 focusing in on the following aspects. We're going to try and understand the sources of lawmaking in Australia. We're going to understand the role and powers of the Prime Minister. The Minister's cabinet and the governor-general will briefly map, the overview of a bill being Speaker 1 passed in. Into legislation becoming an Speaker 2 act will explain. The Speaker 1 repeal of legislation will talk about a definition for the commencement date, cessation date Sunset Clauses and Revival of X Speaker 2 and we'll briefly touch on the interaction between case law and legislation Speaker 1 in previous podcasts. When we discuss the Constitution, we noted that we have a bicameral system of parliament, Speaker 2 a commonwealth level and in Most states although not in the territories and not in Speaker 1 Queensland. Speaker 2 And this characterizes, certainly the Commonwealth. Speaker 1 Now, let's talk about how law is Speaker 2 actually passed. When were talking about legislation, Speaker 1 we know that in the elected Parliament Speaker 2 ministers are appointed within the governing party, who are responsible, Speaker 1 responsible for particular portfolios and those Speaker 2 portfolios. Normally have a government Department behind them, Speaker 1 whose job it is to Speaker 2 implement law and legislation concerning the areas of their portfolio. Speaker 1 Those ministers who consult with the Prime Minister and Speaker 2 who whole portfolios key portfolios are part Speaker 1 of cabinet and it is cabine it that determines government policy and this will in turn affect Speaker 2 the laws that are ultimately made Speaker 1 now. A bill can only become a law. Speaker 2 If it is passed by a majority vote in the Senate and the House of Representatives, the bill must be agreed to in identical form in both the Senate and the Speaker 1 house. And once this Speaker 2 has occurred, it is given Royal assent. It by the governor-general. Now that's talking about Commonwealth level Speaker 1 obviously at state level again we Speaker 2 have a House of Representatives and we have an upper house as well. The legislative Council, however we have a governor usually in those States in relation to Royal assent Speaker 1 and that's because we still are a constitutional monarchy. The minister responsible for Speaker 2 the bill and a bill is simply a proposed Act of parliament before. It's Speaker 1 passed is usually Speaker 2 the men. Bar who will table and introduce the Speaker 1 bill to the house of Speaker 2 Parliament. That the minister is a part of most bills are introduced in the House of Representatives and most bills are introduced by government ministers. However, it's important to note that other members of parliament can introduce their own bills known as private member's bills or private Senators bills. The Speaker 1 bill first Speaker 2 undergoes a reading called the first reading where the minister Speaker 1 responsible or the person presenting the bill Explains the purpose and context of the bill. And it's provided a copy of it Speaker 2 to the members of parliament, in order to enable them to read it. Parliament is then adjourned and the Speaker 1 second reading of the bill is to take place at the Speaker 2 second reading Parliament, is reconvened and the house sits in what we call in committee Speaker 1 at this point. The bill can be quite vigorously debated Speaker 2 and any amendments or changes to it suggested and Speaker 1 discussed Speaker 2 sometimes. If a bill is contentious or requires further detailed consideration Speaker 1 a house committee will be Speaker 2 convened to examine the application of certain parts of the bill. And they can do this by way of public inquiry. Speaker 1 The house committee will then report back their findings to the house. This time, the provisions of the bill are debated and this is also the Speaker 2 time when potential amendments to the bill will Speaker 1 occur after the second Speaker 2 reading of the bill, Being there is agreement. The minister moving, a bill will ask the bill, be read a third time Speaker 1 members vote on the bill in its final form. Speaker 2 Now, if the bill is passed by a majority of votes, it is then referred to the upper house or Speaker 1 Senate in the Senate, the bill goes through the same Speaker 2 process of three readings and the Senate has power to order a senate committee. To also make inquiries into the Speaker 1 effect of the bill, the senate committee, if one is convened reports back to the Senate. Now it's worth noting that Speaker 2 a senate committee can also be While the bill is before the House of Representatives. And indeed, this often happens upon approval of both houses of Parliament. The bill goes to, the governor general, if it is passed by both the Senate and the House of Representatives, if it will be the governor-general, if it is the Commonwealth or it will be the governor. If it is the state for Royal assent. Now, Royal assent is a part of the approval process because as I said previously, we are still a constitutional monarchy. The governor-general is the Queen's representative. Speaker 1 Now, was theoretically, the Speaker 2 governor-general is a very important role. The governor-general is largely Speaker 1 a figurehead, he or she can refuse to approve Speaker 2 legislation but in reality rarely does. So no governor. Governor general has ever refused to give Royal assent to a bill of Australian Parliament, but there have been times when the governor-general has reserved a bill for the monarchs assent or return to Speaker 1 bill with suggested changes. What happens if the bill passes the lower Speaker 2 house but doesn't pass the up. Speaker 1 Per house. Well, this does occur especially if the Speaker 2 government doesn't hold a majority in the Senate. The Constitution provides the answer to what occurs in this situation. Speaker 1 If the bill is rejected by the Senate twice, Speaker 2 then the prime minister is able to call on the governor-general to create what's called a double dissolution of parliament. Speaker 1 Here, both houses are dismissed and a general election is called. This has happened seven times in Australia's history. The most famous double dissolution Speaker 2 that you may or may Not have heard about was during Gough whitlam has time. He was prime minister in Speaker 1 1975. You should look up the Speaker 2 dismissal of 1975 on the internet and have a read. You also have pictures of this in your subject site and understand the very contentious nature of the dismissal and the reaction amongst Australian. Public at that time. Speaker 1 Once a dismissal occurs, the House of Representatives, newly-elected can try again to pass the legislation. Speaker 2 If it is a game blocked in the Senate then a joy. Joint sitting of both. Houses of Parliament, will be Speaker 1 convened. Now, this is only occurred once in Australia's Speaker 2 history. After the whitlam incur double dissolution. The whitlam government was re-elected, but it did not have a majority in the Upper House still. Speaker 1 Let's now talk about the interaction between State Speaker 2 legislation and Commonwealth legislation. You'll no doubt recall that the Commonwealth parliament's ability to make laws for Speaker 1 Australia comes from section 51 Speaker 2 and 52 of our Australian Constitution. Speaker 1 Section 52 Speaker 2 contains those areas over, which the Commonwealth has, what we call Exclusive legislative power. That means that only the Commonwealth can legislate on those areas and the states and territories cannot the list of areas. The Commonwealth has lawmaking power in are contained in section 51. And those are not exclusive legislative areas, but are areas that the Commonwealth can, and does have ministerial oversight in and legislative power States can also pass laws on these areas to Speaker 1 the areas in section Speaker 2 51, are called concurrent legislative powers, which makes sense. Because they're concurrent to both state and Commonwealth. Now, as we know from the previous podcast, what happens when there is an inconsistency between a state or territory law and a commonwealth law? Speaker 1 Well here there are two points to Speaker 2 note that you will study further in constitutional law, firstly section 109 of the Constitution provides a mechanism. Speaker 1 Isn't that should a state law being consistent with a commonwealth law? Speaker 2 The state law will be invalid to the Speaker 1 extent of the inconsistency. A good example of this is in your text with the case, Speaker 2 study of Commonwealth against the Australian Capital territory, 2013, high court judgment. That's contained in topic 1. And you might remember in the Speaker 1 facts of that case for the ACT tried to legalize same-sex Speaker 2 marriage before the Commonwealth government did. And it was found that that legislation Ation was Speaker 1 invalid. Speaker 2 Secondly, sometimes the Commonwealth in Speaker 1 enacting legislation states, that it intends to cover the Speaker 2 field and to be the whole exhaustive law on that particular area or Speaker 1 topic. Alternatively, the high court is Speaker 2 also able to find that legislation that the legislative intent behind a commonwealth Act of parliament. Might be such that it's inappropriate for the state or territory to be legislating on the same area. And the high court can declare that legislation invalid. A good example of the interaction and sometimes difficulties of overlapping State. And Commonwealth Powers is given in John Calvin's text, where he discusses the measures that need to be taken legislatively with the Speaker 1 pandemic. Consider this Speaker 2 discussion, whilst you have a look at sections, 51 and 52 of the Constitution and have a think about the unique issues that the pandemic raised between the separation of power between State and Commonwealth. Speaker 1 Government. It's also important at this point to note, Speaker 2 how Parliament sometimes makes law on areas that are not specifically, enumerated in section 51 or 52 of the Constitution. Speaker 1 For example, Speaker 2 consumer, welfare and protection is Speaker 1 not at all listed in section 52. Speaker 2 However, the Commonwealth has legislated the Australian competition and consumer law, which applies nationally. Speaker 1 This is a comprehensive set of Speaker 2 legal rules that require How businesses are to trade and provides very special protections for consumers in Australia, it makes sense, doesn't it to have a commonwealth consumer law, because trade and commerce extends Beyond one, state or territory. Speaker 1 But how does the Commonwealth do this? When it's not specifically listed Speaker 2 as being an area, it can legislate on in the Constitution. Speaker 1 Well, it's a little bit of a back door. Basically it does Speaker 2 this through its corporations power of the Constitution. Speaker 1 The Commonwealth is able to Speaker 2 pass laws. Laws and regulate corporations and as it's usually corporations that Supply sell or manufacture consumer goods, the Commonwealth is able to legislate regulating the Trade Practices of those bodies. Speaker 1 Indeed the legislation that preceded, the Australian competition and consumer law was Speaker 2 called the Trade Practices Act. Another way, the Commonwealth is able to influence and affect areas that are normally state power is through Section, 96 of the Constitution as John Calvin notes. This power enables the Commonwealth to Give money to the states and territories on any terms that it likes. As the Commonwealth has much greater ability to raise revenue through its very extensive taxation Powers Commonwealth funding to various State areas, such as Health Schools, roads Etc. Speaker 1 Can be a very powerful Speaker 2 tool and way that the Commonwealth can achieve its policy objectives and ensure control over State areas of government. Speaker 1 Let's not talk about delegated legislation. We touched on delegated legislation also known as subordinate legislation in a previous Speaker 2 podcast. But it's going Speaker 1 to be important to understand the features of this delegated or subordinate. Legislation is made pursuant to an Speaker 2 act of parliament. So, an act of parliament enables, the making of this type of law. Speaker 1 Why does parliament do this will Parliament? Delegates, its legislative Speaker 2 functions via the He've instrument, the ACT, to Speaker 1 the executive or to whichever body Parliament and points to Speaker 2 function as oversight of this area. This is because Parliament cannot possibly legislate to administer the implementation of every single act of parliament. That's the role of the relevant Minister and the department that has oversight of this area of Regulation. Now there are numerous types Speaker 1 of delegated Speaker 2 legislation and instruments of delegated legislation. And all of them are a source of Law. And all of them are binding, they can include Speaker 1 rules regulations, Speaker 2 proclamations ordinances orders, Speaker 1 notices policies, Speaker 2 Declarations determinations of which, you'll be examining one in assessment, three Speaker 1 plans of Speaker 2 management and bylaws, all of these are a source of law. Speaker 1 All of these are delegated legislation. Different types of delegated legislation do different things. So for Speaker 2 example, an order is a decree by a government. Minister usually that is read out by the governor-general Speaker 1 in circumstances of emergency a Speaker 2 regulation though is far more common and it's produced by the minister responsible for the portfolio detailing further Provisions, provisos penalties and requirements that are required the administration of a particular act or legislation. Speaker 1 Seems like directions and decisions are similar to policies or Speaker 2 directions Speaker 1 determinations. Speaker 2 For example, a made by the Speaker 1 minister often Speaker 2 pursuant to the enabling Speaker 1 legislation and the determinations have to be made within the terms that the legislation gives to the minister Speaker 2 determinations which is the type of delegated legislation you'll be dealing with an assessment. Three can determine the position and rights of citizens. So for example, Speaker 1 Ample the biosecurity Speaker 2 human bio Security emergency human coronavirus with pandemic potential overseas, travel ban emergency requirements determination. Isn't that a mouthful? That's a whole pee hole not title for a piece of legislation Speaker 1 provided amongst other things. That citizens of Speaker 2 Australia were not permitted to travel overseas after 12 p.m. and the 25th of March due to the pandemic. Speaker 1 So this determination which was made pursuant to the Speaker 2 biosecurity React is a Speaker 1 piece of delegated legislation that significantly Alters Speaker 2 the rights, and responsibilities of Australian citizens. Now, from a rule of law Speaker 1 standpoint, we can critique delegated legislation by a couple of factors. Firstly, it's not made by elected Speaker 2 members of parliament often. These types of laws are put together by delegated bodies. Speaker 1 They can be Speaker 2 bureaucrats. They can be those people behind ministers Speaker 1 and those people aren't necessarily Speaker 2 accountable. Through our democratic system, Speaker 1 it also doesn't. Speaker 2 It's also a problem that delegated legislation doesn't follow the same legislative process where the public can scrutinize Speaker 1 potential bills, Speaker 2 become aware and make Speaker 1 submissions Speaker 2 regarding the proposed Speaker 1 delegated legislation and they can't always Speaker 2 attend inquiries because often there Speaker 1 aren't any delegated legislation is tabled in Parliament. Speaker 2 But there's only a very short window in which Parliament can refuse to validate such Speaker 1 laws so we can actually critique delegated legislation on this basis. Delegated legislation Speaker 2 can be made by the minister, or by the governor-general, in Speaker 1 council, with executive ministers, and in States Speaker 2 and territories, the governor in Council can also be made by anybody that's appointed under a statutory instrument that enables the delegation. Speaker 1 So for example, the New South Wales Parliament may Speaker 2 make an important law Speaker 1 such as the fisheries management. It. And that enabling piece of legislation is designed to do Speaker 2 a vast range of things, including preventing the pollution of waterways Speaker 1 maintenance of fish and aquaculture stocks, the Quran to regulate Speaker 2 the cultivation and harvest of Speaker 1 shellfish. Now, the New South Wales Speaker 2 Department of primary Industries is the government portfolio and ministry that's responsible Speaker 1 for administering that legislation. And it does so through a number of Speaker 2 pieces of delegated or subordinate Speaker 1 legislation. So for example, if you want an aquaculture permit to grow oysters or prawns, you're going to need to apply Speaker 2 to the ministry and Speaker 1 you'll be subject to the fisheries Speaker 2 management, aquaculture Speaker 1 regulation that form of delegated legislation, which Speaker 2 came out in Speaker 1 2017. That contains all Speaker 2 of the regulations in relation to the granting of Agriculture, permits, and the department regulates the terms and conditions of your license, the waterways where you can and cannot grow. And when you can and cannot Harvest. Speaker 1 These are all done for the measures of sustainability. Speaker 2 Also, Clarity of water and ensuring Speaker 1 pollution doesn't occur, but also Speaker 2 for public health and safety reasons as well. Speaker 1 Now, another example is local government, local governments make extensive delegated Speaker 2 legislation in their administration of local areas and they do that in health building and Engineering. They frequently will do that through delegated legislation Provided the laws, the delegated body is making fall under the powers that are conferred to them in delegate in the legislation. Then the laws that they create will be just as valid and enforceable as an act of parliament. There are a number of Speaker 1 bases to find the delegated legislation is invalid. So firstly delegated legislation will be invalid if it's what we Speaker 2 call Ultra virus and that simply means that it's beyond the power of Speaker 1 the party making. It usually it's outside the Speaker 2 instrument of Delegation or the legislation, so they've gone beyond the scope of what they're allowed to do. Speaker 1 Alternatively, it might be invalid because it's repugnant to the intent and Speaker 2 purposes of the main act that gives it power. Or it may have been made for a purpose that was not permitted by the enabling Speaker 1 legislation another basis to Speaker 2 challenge delegated. Legislation is the that the operational effect of the provisions are unreasonable. And when Read in the context of the empowering act Speaker 1 cannot be considered Speaker 2 to be within scope of what was authorized or ever intended by Parliament. Speaker 1 A final basis that delegated legislation has Speaker 2 been can be challenged on is by where somebody Speaker 1 who has made the delegated. Legislation Speaker 2 is not the correct delegate. So in other words, that person was not appointed by the Legislative instrument or that the person who was correctly, appointed has sub delegated, their powers to someone, that is not Is not authorized by the legislation. Speaker 1 So as you can see, Speaker 2 complex legal arguments can arise about Speaker 1 the validity and the application of delegated legislation and Speaker 2 certainly, that will be a live issue for you. As you consider your task in assessment three. Let's now talk about the commencement dates of legislation working out. When an act of parliament commences is very important because you might have a client with a particular legal problem. That requires you to consider whether a particular law was in Force at a particular time enactment. And commencement of legislation are two different things. Now, it's important to keep that distinct in your mind and act moment occurs when Royal assent is given to the ACT commencement. However, When the legislative Provisions actually come into effect for the Commonwealth and New South Wales, the general rule is for commencement that legislation commences 28 days after it receives Royal assent. Unless the legislation in itself says, otherwise Speaker 1 there can be different commencement Speaker 2 dates for different states and territories. So that 28-day rule was that applies to New South Wales and the Commonwealth doesn't apply everywhere else in Australia Speaker 1 to In the commencement Speaker 2 dates in different jurisdictions, we need to go to each jurisdictions Speaker 1 interpretation acts and we also need to go to the legislative instruments itself. When we're looking at the legislation, we need to check the commencement provisions of the legislation and it would be good if you've got a piece of Speaker 2 legislation in front of you. Now to actually look it up and have a look at this. And we'll be doing that this week in our tutorial, Speaker 1 if it doesn't specify a particular date, then we need to determine by searching the act, the date of us. ENT and we then calculate the Speaker 2 time period of commencement from the date of Speaker 1 ascent. If an act is amended, the Amendments will Speaker 2 operate from the date on which the amending act says they will Speaker 1 operate. It's important to note that not all provisions of an act necessarily commence. At the same time, some parts of an act might come into effect at a later date and some parts might be contingent on other legislation coming into effect. First your Speaker 2 textbook has some very good examples. Apple's of this will consider this further in our tutorial with a worked example. Let's talk about Revival of Speaker 1 Acts. Sometimes after an act has expired in Speaker 2 operation it can be revived or brought back into effect by another act Speaker 1 and this is usually done only Speaker 2 for a temporary period Speaker 1 Revival of axes fairly uncommon and it's usually used Speaker 2 for interim periods or short periods of time. Speaker 1 Only usually in the statutory instrument that is Having an act, the period for which the ACT is revived will be stated. And so Speaker 2 will the pure data which the Speaker 1 ACT ceases to have effect Revival of one of Speaker 2 sunset Clauses and we'll talk about those in a moment can occur. When the parliament determines, an extension of time is required for an actor that otherwise normally would expire. Speaker 1 Now Sunset Clauses, it's important to be aware of sunset Clauses. What these are is essentially a clause with in an act, that provides sides that the ACT ceases to have legislative effect after a specific date. Unless further legislative action is Speaker 2 taken to extend the date or the application of the law, Speaker 1 all legislative instruments of the Commonwealth or subject, to the legislation Act of 2002 Speaker 2 and that legislation provides that all legislative Speaker 1 instruments, such as class, orders are to be automatically repealed or Sunset after 10 years. Now, the reason for this is to Show that the legislation remains current Speaker 2 sunset Clauses can be revived through further legislation. Speaker 1 What about retrospective application of X generally, legislation should only apply Speaker 2 after it is proclaimed, after it Speaker 1 commences. And this is a Speaker 2 tenant of the rule of law and natural Justice that Speaker 1 Parliament can't legislate to Dean Speaker 2 conduct in the past, a breach of the law. However, this is not always. So although there is a Assumption at common law. That legislation is not intended to act Speaker 1 retrospectively legislation can Speaker 2 and does act that way sometimes Speaker 1 as cook and Creek, point out. Retrospective application of legislation is not always detrimental retrospective legislation might, for example, Dean past conduct to be legal or acceptable. In order to prevent past Speaker 2 conduct, being treated as a breach of current law, they might also Speaker 1 Dame certain Behavior to be something for the purposes of Speaker 2 classification in current legal standards and that can be quite appropriate and beneficial for those whose conduct is. So deemed a good example of why a retrospective law can be needed and how it works. Speaker 1 Was the jurisdiction of Courts, Speaker 2 legislation Amendment Act of 2000 of the Commonwealth. Now, this act was Speaker 1 retrospective Speaker 2 legislation and it was passed directly after the high Court's judgment in Freeway Kim, ex Speaker 1 parte. McNally. Remember we talked about that case with respect to cross festing now in that judgment. The high court determined that the cross vesting act and its attempt to confer Speaker 2 state power on federal courts, was Speaker 1 invalid what that meant in practicality then was that all of the cases that the Speaker 2 federal court Speaker 1 had determined where they'd applied Speaker 2 state power, under the cross vesting scheme, Speaker 1 where therefore, Speaker 2 theoretically Untenable as judgments in unstable judgments because they had applied a power that they didn't have under the Constitution. Speaker 1 So what the government did was to pass the new legislation and that had retrospective application Speaker 2 in the jurisdiction of Courts, legislation Speaker 1 Amendment act, the ACT declared, all of those pass Speaker 2 judgments of the federal court to be valid and to remain as judgments. And this had the effect of preventing the need for The parties in each of those cases to re-litigate them before the courts. Speaker 1 So although retrospective effective Speaker 2 legislation usually is something lawyers should be very uncomfortable about. In this instance, it was a very practical work around the problem that was created when the high court declared the invalidity of the Speaker 1 legislation. Let's talk about repeal of legislation, change to legislation can be achieved Speaker 2 by repealing an act. And amending enact. A repeal means that the act or parts of it are no longer valid repeals can be expressed by a legislative instrument, or they can be implied. Express repeal will state in the legislation. That the new Act is intending to repeal the old act or parts of it. Where is an implied repeal of legislation occurs? Speaker 1 Where there's a conflict between two x of the same jurisdiction in such instances. Usually, the Speaker 2 latest act, or the newest act will apply and the earlier acts Provisions, that conflict are considered to be Speaker 1 repealed. Again, this is a question of statutory interpretation and construction by the courts and it should be noted. That Speaker 2 courts are often very reluctant to find a repeal by implication. They much prefer parliament make That explicit in legislation Speaker 1 the Effect of repealing, an act is set down in the acts Speaker 2 interpretation Act of the states and the Commonwealth. The repealing ACT does not repeal. The substantive rights and Speaker 1 liabilities or duties that are created by the initial act in this regard. Have a look at section 7, subsection 2 of The Commonwealth Speaker 2 acts, interpretation Act of 1901. Speaker 1 This brings us to our next point about the interaction between case law and legislation. What's the role of the courts? When it comes to interior, Getting legislation. Well, they're very important. We've discussed in our discussion of the Constitution of Australia that the constitution gives a commonwealth certain Speaker 2 exclusive and concurrent powers to Speaker 1 legislate on the role of the courts. In the separation of powers Doctrine, Speaker 2 particularly the high court of Australia Speaker 1 is to consider legislation and Speaker 2 to rule when the legislation Speaker 1 is unconstitutional or it is invalid because of inconsistency Speaker 2 Ultra virus or other Otherwise Speaker 1 courts are also under the separation of powers not to make law, but there to Speaker 2 interpret the law and to apply it to the disputes that come before them, Speaker 1 there for courts, Speaker 2 can, and do have a special role in making clear What legislation requires and how it applies in certain circumstances. However, in this regard, courts are reactive. They can only pass judgment on those disputes that come before them, whilst it's the legislature who is proactive deciding what law might be required in. Speaker 1 Future as your online topic notes, suggest occasionally Speaker 2 inconsistency occurs between legislation and case law Speaker 1 in those circumstances, legislation takes Speaker 2 precedence. And this is because of the principle of parliamentary sovereignty in the separation of powers. Speaker 1 We sometimes see that Parliament will move to Speaker 2 enact legislation in response to the common laws interpretation of a statute that Parliament considers is undesirable. And in this regard, again, a good example of this was the legislature. Passing the jurisdiction of Courts legislation Amendment act after re way. Kim ex parte. Speaker 1 McNally, it's going to be really important as we delve into statutory, interpretation for you to understand how Speaker 2 legislation is created. And that's well detailed in your texts and briefly over viewed. In Speaker 1 this top concept lecture. Additionally you need to begin Speaker 2 to work with laws and legislation and understand the anatomy of Acts, how to find them the different Commonwealth and State. Databases that are available to you online, how to look Speaker 1 at the history of legislation, Speaker 2 how to look at what legislations on foot now, as against, what might have been repealed or Speaker 1 amended. So it's going to be very important for you to make sure that you attend Speaker 2 tutorials and watch the demonstration Speaker 1 in Toots. And if you're not able to Speaker 2 attend the to to live, then to definitely make sure that you watch the recording and ask any questions that you might have as a consequence of this will be building. Now towards your assessment three in this regard. So please make Make sure that your understanding is good and if you have any doubts or questions please do get in Speaker 1 touch, thanks for listening.

Podcast Summary

Key Points:

  1. Statutory interpretation and legislation skills are developed gradually throughout law study and practice.
  2. The Australian lawmaking process involves bills passing through three readings in both houses of Parliament, followed by Royal assent from the Governor-General.
  3. The Constitution defines exclusive (Section 52) and concurrent (Section 51) legislative powers, with Section 109 resolving inconsistencies in favor of Commonwealth law.
  4. Delegated legislation (subordinate legislation) is made by executive bodies under an enabling Act, but lacks direct democratic accountability and public scrutiny.
  5. Examples of delegated legislation include regulations, orders, determinations, and bylaws, which are binding and can significantly affect citizens’ rights.

Summary:

This podcast provides an overview of legislation and lawmaking in Australia. It emphasizes that understanding statutory interpretation is a skill developed over time through study and practice. The legislative process begins with a bill, introduced by a minister or private member, which undergoes three readings in both the House of Representatives and the Senate. After approval, it receives Royal assent from the Governor-General (or state governor), becoming an Act. If a bill is twice rejected by the Senate, a double dissolution may occur, as famously happened in 1975.

The Constitution grants the Commonwealth exclusive powers (Section 52) and concurrent powers (Section 51). Section 109 ensures that inconsistent state laws are invalid to the extent of the conflict. The Commonwealth can also legislate on non-enumerated areas via its corporations power (e.g., consumer law) or through financial grants under Section 96.

Delegated legislation is created by ministers or executive bodies under an enabling Act, covering detailed regulations, orders, and determinations. While necessary for administrative efficiency, it is critiqued for lack of democratic oversight and limited public scrutiny. Examples include biosecurity travel bans and fisheries management regulations. Delegated legislation is valid only if it falls within the powers conferred by the enabling Act; otherwise, it is considered ultra vires and invalid.

FAQs

A bill is a proposed act of parliament before it is passed. Once it is approved by both houses and receives Royal assent, it becomes an act.

Legislation can be repealed by a later act of parliament, or it may have a sunset clause that sets a cessation date, after which it automatically expires. Revival of an act is also possible through new legislation.

Private member's bills are introduced by members of parliament who are not government ministers, unlike most bills introduced by ministers. They follow the same legislative process but are less common.

Yes, delegated legislation can be challenged if it is ultra vires, meaning it exceeds the powers granted by the enabling act. A court can declare it invalid.

A senate committee is convened to examine a bill in detail, often through public inquiries, and reports back to the Senate. Its findings can lead to amendments or influence the bill's passage.

The Commonwealth uses its corporations power under the Constitution to regulate corporations, which covers consumer laws like the Australian Competition and Consumer Law. It also uses Section 96 to fund states on conditions that shape policy.

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