Topic 1: Legal Foundations

• Statutory law refers to rules, regulations and provisions enacted by the legislature in the form of statutes.
• What Is the Rule of Law? 

  • Important principle that is adhered to by every democratic soceity, including Australia, to ensure that all citizens respect the laws of that country.
  • The rule of law ensures that democratic governments exercise the appropriate authority and that they themselves abide by the law.
  • The principle that all people are subject to the law and are equal before the law
• Three features that distinguish a custom or a rule are: authority, consequences, and regulations
• Authority to make laws in Australia relies within the parliament and, in certain situations, with the law courts (high courts can make laws)
• Laws involve enforcements by courts or tribunals and other government agencies, such as the police, resulting in consequences/penalties like imprisonment, fines, and community service
• Legal rules can regulate the behavior of all members of society to prevent conflict and chaos if too much freedom is given
• What is House of Representatives?

  • 150 members each member represent a group/electorate a geographic area with 75,000 voters (based on population)
  • Represent the interest of the members of their electorate 
• What is Senates?

  • The senates are made up 76 senators, each state elects 12 senates to represent them, and the territories elect two senators.
  • To protect the interest of the citizens in the smaller states and ensure the less populated states are not dominated by the more populated states.
  • The senates cannot amend (make changes to) a bill but can ask the House of Representatives to change it.
• Explain the Difference Between the HOF and the Senates  - Question in Exam?

  • The difference between house of representatives and senates are, the house of representatives have 150 members, each representing an electorate within Australia, usually around 75,000 voters (based on population). They represent the interest of the members of their electorate.

   

  • However, the senates have 76 senators, which each state has 12, whilst territories have two senators, they protect the interest of all citizens within smaller states, making sure they aren't dominated by the states that are more populated.
• State and Territory Parliament 

  • Each state or territory has it own parliament to make laws for that state.
  • Queensland is the only state in Australia that has a unicameral system of Parliament (one house)
  • It abolished the upper house (legislative council) in 1922.
  • Queensland parliament has 89 representatives elected to be the legislative assembly (lower house)
  • The Queen's representative at state level in the governor.
• Local Authorities 

  • Each stuate parliament has passed local government Acts to create local councils and shires in order to delegate wide powers to make laws for their local areas.
  • The local councils and shires do not need to see state parliament's approval to make there laws, although they are subject to the higher authority of the state parliament.
  • If a state parliament makes a law inconsistent.
• Voting at Elections 

  • Australia has representative democratic system of government. It is compulsory for each citizen over 18 years of age to vote to choose members of parliament.
  • Failure to vote results in a fine of 20 do are failing to pay 20 dollars or have a valid reason could end in 170 fine.
• The Judiciary consists of the system of judges and Federal Courts, including the High Court, Federal Circuit Court, and Family Court
• The High Court deals with disputes between States, Territories, and the Commonwealth Governments
• The High Court also deals with disputes between individuals and the Commonwealth Government
• The High Court interprets the Australian Constitution
• The High Court handles matters concerning treaties and representatives of other countries
• The High Court is the last court of appeal for all civil and criminal cases in Australia
• Judges make decisions about cases according to law, setting precedents which add to the common law
• Judges provide written decisions called judgments which become part of the common law and form precedents
• Written judgments are essential if the decision of a court is to be appealed to a higher court
• Why does judges need to use Equality?

  Equity is a set of principles judges can use at their discretion to apply certain cases depending on circumstances.

  Judges can not change the law enacted by Parliament

   
• Common/Statutory Law

  1. Statutory Interpretation 

  • Judges are impartial arbitrators who interpret the meaning of the Act -Judge "make laws" by their ruling in cases.

   

  1. Common Law:

  • Interprets Statute Law and 
  • Fills the gaps in legislation e.g. defining "building"
• Common/Case Law

  • Judges listen to the evidence and make judgements as to what the law should be.
  • Judges apply the Doctrine of Precedent: earlier judicial decisions are referred by judges in making their judgement =. 
  • Precedent guarantees certainly and consistency of judgements.
• Characteristics that make the law effective:

  • Laws should be clearly known and understood by citizens
  • Judges should be able to interpret the law as intended by the Parliament and superior courts
  • Laws should be applied fairly to all citizens and government officials
  • Laws should be acceptable to citizens, aligning with their beliefs and values
• These four aspects are essential to maintain the rule of law because:

  • Clarity and understanding ensure compliance and prevent confusion or misinterpretation
  • Judicial interpretation aligns with legislative intent, ensuring consistent application
  • Fairness in application upholds the principle of equality before the law
  • Alignment with citizens' beliefs and values fosters acceptance and respect for the law
• The importance of citizens abiding by the law:

  • Citizens must understand the need for laws to comply willingly
  • Laws should align with community beliefs, values, and notions of justice for acceptance
• The necessity of equal application of laws:

  • Equal application ensures community confidence and support for the legal system
  • No exemptions for lawmakers, judges, or public servants promote accountability and fairness
  • Consistent treatment of individuals, regardless of status, maintains societal trust in the legal system
• Enforcement as a crucial aspect of effective laws:

  • Laws must be enforceable to prevent disregard and maintain societal order
  • Enforcement ensures laws are respected and followed, contributing to social stability
  • Laws should evolve with social and moral changes to remain relevant and effective
• Social Pressures for Change:

  • New or amended legislation requires demand or desire for it
  • Legislation often stems from a government's desire to implement its policies
  • Changes can be influenced by public opinion, royal commissions, law reform groups, and pressure or lobby groups
• Bill:

  • Proposed laws must be introduced to Parliament in draft form
  • Bills are usually introduced by the government minister responsible for the relevant area, but can also be introduced by individual members (Private Member's Bill)
• First Reading:

  • Notice is given to Parliament a few days earlier about the intention to introduce a Bill
  • The first formal stage is the First Reading in the House of Representatives or Legislative Assembly
  • The long title of the Bill is read out, followed by a brief statement of its purpose by the introducing member
• Second Reading:

  • Detailed discussion of the Bill begins
  • The member proposing the Bill explains the benefits for the community if the Bill becomes law
  • Speeches made in parliamentary debates are recorded in official reports known as 'Hansard'
• Committee Stage:

  • Detailed examination of each section of the Bill takes place
  • Debate and thorough consideration of the Bill occur
  • The wording is carefully examined to ensure clarity and lack of ambiguity
  • The Speaker requests Parliament to accept the committee's report
• Third Reading:

  • After passing through the Committee Stage, a motion is put to the parliament for the Bill to be read for the third time
  • The clerk reads the long title, and if a majority of members present vote in favor, the Bill is passed
• Royal Assent Act:

  • The Speaker takes the passed Bill to the Governor or Governor-General for signing
  • Once signed, the Bill becomes an Act of Parliament and its provisions become law
  • An Act usually states when it will commence or come into force