Transcript Year 12 Legal - Pembroke Moodle

Topic 3
Law-making
Law-making
 A study of this topic develops an appreciation that law
originates from two fundamental sources —
parliament and the courts — but that parliament can
delegate some law-making powers to the executive.
Parliament is the sovereign law-maker.
 However, courts can make and extend law in the
absence of statute law. This is called common law.
Courts can also create case law through statutory
interpretation.
Legislative constraints
 The legislative arm of govt makes laws and is restricted
in its law-making by two factors
 Constitutional (subject to the legislative division of
powers)
 Democratic (public pressures and party disciplines)
Initiation of Legislation
1.
2.
3.
4.
5.
6.
Political parties = Each party has beliefs and values which are reflected in
its legislative program (e.g. ALP changing WorkChoices)
Electoral mandate = party wins an election over a legislative issue (GST in
1998, WorkChoices 2007)
Pressure groups = TU’s, Aust Conservation Foundation, pensioner groups
Public service = Advice from treasury dept on tax rates
Investigative committees = set purpose is to recommend legislation
(currently over Murray-Darling system, substance abuse in central Australia,
national broadband network)
Court decisions = Parliament scrutinises judicial arm (e.g. Native Title Act
(Cth) after Mabo, Wrongs Act (SA) after SGIC v Trigwell)
Parliamentary Committees
 Committees – Federal
 Committees - State
Types of Bills
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A bill is a proposed new law
An act is a law made by parliament – also referred to as
legislation or statute
 Public bills are part of the govt’s legislative program
 The relevant Minister is responsible for its passage and
members vote along party lines
 There are two types of public bills
a) Ordinary bills (originate in either house) – original, amending,
repealing, consolidating
b) Supply bills (must originate in LH s53)
Types of bills
 Private members bills are initiated by an individual
member (backbencher, Opposition or Minister acting
as a private member)
 Parliament holds a conscience vote on these (abortion,
prostitution, euthanasia)
 Private members bills may not impose a tax nor take
money from govt revenues
Making legislation –
pre-parliament stage
 Initiation of the legislation
 Cabinet approval (in principle to the idea)
 Drafting of the bill (done by Office of Parliamentary
Counsel) and is overseen by the relevant Minister to
the bill
Making legislation –
parliament stage
 Bills generally originate in the Lower House (as most
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Ministers reside there) and each member receives a copy
before the readings begin
First reading (by Clerk) (possibly referred to a standing
committee for a report)
Second reading (Minister’s speech outlining broad
principles)
Consideration of the bill = debate (every clause may be
debated)
Third reading (long title read by Clerk)
Transmission to Senate
Making legislation –
parliament stage
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Reviewing House (Senate)
First reading
Second reading (can be referred to Senate committee)
Committee of the Whole (debate amendments)
Third reading
If any amendments the originating house must pass the amended bill
Assent (for Cth bills by G-G under s58 – in SA assent is post-parliament
as SA constitution excludes Governor)
Making legislation –
post-parliament stage
 (SA Governor assents)
 Proclamation by G-G - in Govt Gazette
 Act is “law of land”
 Can come into operation from date of assent, date of
proclamation or a date prescribed
Resolving deadlocks in state parliament
 Bills must pass through both Houses
 Govts rarely have the majority in both houses and often face a hostile
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Upper House
Deadlocks are when the two houses cannot agree on a bill
(disagreement is where there may be room to compromise) and may be
resolved by;
Abandoning the bill
Manager’s conference = 5 mem’s from each House (representing all
parties) meet in a conference to find a compromise
Double dissolution = no joint sitting provision so not a particularly
viable solution
Resolving deadlocks in federal parliament
 Deadlocks/disagreements may be resolved by;
 Abandoning the bill
 Compromise (Govt and Senate make concessions e.g CPRS
Govt and Opposition, Stimulus package $950 down to $900
per person) or concession (let Senate amendments
through)
 Double dissolution mechanism = under s57 of the
constitution
 This was used in the Medibank legislation for the Whitlam
govt in 1974
s57 Double Dissolution
1.
2.
3.
4.
House of Reps pass a bill and
Senate rejects
The House of Reps passes
again after a three month lapse
The Senate rejects again
PM can advise GG to call a
double dissolution election
under s57
 If govt loses, bill lapses
 If govt wins a double majority,
then bill will pass
 If govt wins but not a Senate
majority…
5. Bill passes H of R again and
Senate again rejects
6. PM advises GG to call a joint
sitting (held in H of R)
7. If absolute majority (of the 226)
passes the bill passes and
becomes law
s64 Reserve Powers
 One final way (and dramatic) method of resolving a deadlock is the use of the
G-G’s reserve powers under s64
 If a supply bill is blocked the govt can’t wait three months for a s57 DD
 There is nothing in the constitution about the blocking of a supply bill as
drafters never believed it would happen (a convention!)
 But it did. In 1975 the Liberal Opposition under Malcolm Fraser blocked the
supply bills of the Whitlam govt
 G-G Sir John Kerr sacked Whitlam and his govt for failure to pass the bills and
called a DD election
 This constitutional crisis outraged many, but Fraser won in a land slide
 Still today the GG could sack the PM as it remains only a convention not to.
Supervision of legislation – parliamentary
supervision
 Bicameral scrutiny – Senate scrutinises bills
 Parliamentary committee system – standing committees on finance,
constitutional affairs, education and other specific purpose committees
set up to inquire and report into legislative matters Parliament of
Australia: Committees
 Sunset provision – guarantees an Act will be reviewed after a certain
number of years (In 2005 the Anti-terrorism laws were given a 5 year
sunset clause) – useful for areas of science and technology
developments
 Also Question Time, tabling of petitions from concerned citizens,
grievance debates
Supervision of legislation –
executive supervision
 Responsible Govt – Ministers are accountable to parliament
for the effectiveness of their legislation
 Administrative tribunals – hear cases of admin decisions of
govt – may expose problems in relevant laws
 Ombudsman – investigate complaints regarding decisions
of govt authorities
 FOI – access to govt files of admin nature or personal files
of the individual concerned
 Freedom of Information Act 1982 (Cth)
 Freedom of Information Act 1991 (SA)
Supervision of legislation –
judicial supervision
 Judicial review – constitutional validity of laws can be
challenged in High Court (ultra vires)
 Statutory Interpretation – courts give the meaning to
words. For example “self defence” under the Criminal
Law Consolidation Act 1935 (SA)
Strengths of legislation
 Representative govt principles
 Responsible govt principles
 Sovereignty of parliament
 Comprehensive law-making
 Sets acceptable standards in futuro
 Federal perspective
Weaknesses of legislation
 Minorities disenfranchised
 Time consuming
 Retrospective law-making
 Federal perspective (buck passing)
 UH can hold LH to ransom (minor parties deny
mandate of govt)
 Fear of electoral backlash
Possible reforms to the law-making
process
 Abolish bicameral system
 More conscience votes
 Reduce readings
 Allow citizen initiated legislation
 Remove double dissolution stage – straight to a joint
sitting after two rejections
What is delegated legislation?
 Laws made by a delegated
authority
 Here the parliament
(legislative arm) delegates the
responsibility to make laws to
an executive body
 Called delegated legislation or
regulations (by-laws, notices,
ordinances)
Who can make delegated legislation?
 The Governor (by convention this is done by the relevant
Minister)
 Local Councils – Local Government Act (along with
enabling act) e.g. dog management, building standards,
waste disposal
 Statutory authorities e.g. Environmental Protection
Authority, TransAdelaide, AQIS
 Govt Departments – immigration, taxation, education
How is delegated legislation made?
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Subordinate Legislation Act (SA) governs the making of
regulations
1. Parliament makes enabling Act
2. Consultation (with affected community)
3. Drafting (OoPC)
4. Executive Approval (Cabinet confirmation as responsible
govt principles apply)
5. Proclamation (published in Gazette, default 28 days after
proclamation to come into effect)
6. Tabling (in SA within 14 days, Cth is 15 days)
How is delegated legislation supervised?
 Parliamentary supervision
 Enactment (can insert sunset provision, broaden/narrow parent
act)
 Responsible govt accountability
 Disallowance motion (one house voting to disallow is sufficient to
disallow regulations)
 Executive supervision
 Admin tribunals, Ombudsman
 Judicial supervision
 Interpretation of regulation
 Judicial review = is enabling Act ultra vires? Are regulations ultra
vires the enabling act? Is it inconsistent with other laws?
Why make delegated legislation?
 Democratic considerations – allow parliament to concentrate on the large
principles of law
 Technical expertise – delegated authorities have expert knowledge e.g.
Department of Fisheries and fish sizes Pageant notice
 Decentralised decision-making – councils better suited to consult with local
communities
 Administrative convenience – the bodies that are dealing with the law should
make the regulations (e.g. Transport SA)
 Emergencies – can be made quickly (petrol rationing, terrorist threats, swine
flu)
 Political considerations – backdoor legislation (although tempered by
disallowance motion) – Whitlam govt in 1972 - 1975
Evaluation of delegated legislation
Advantages
Disadvantages
Parliamentary
convenience
Expertise
Lack of community
awareness
Complexity
Community consultation
Undemocratic
Efficiency
Winston Churchill
"If you have ten thousand regulations you destroy all respect for the law"
Comparison of legislation and delegated
legislation
Legislation
Made by
Parliament
Authority
Constitution
Detail
Time to make
laws
Supervision
Broad and comprehensive
Lengthy
Bicameral, sunset,
committees, resp govt,
Admin, Omb, stat interp,
jud review
Regulations
Delegated bodies
Enabling Act
Specific and tech detail
Immediate
Enactment, disallowance,
resp govt, Admin, Omb,
interp, validity of act and
within power
Precedent
 Inferior courts are bound by the decisions of superior
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courts
Courts follow the doctrine of precedent. This is the
principle of stare decisis = to stand by what’s decided
This creates consistency, uniformity and certainty in the
legal system
Ratio decidendi creates the precedent
Obiter dictum is persuasive (Gaudron J in Adban)
Australian Court Hierarchy
High Court
FCSC / CCA
Fam
Ct
Federal
SA Sup Ct
WA Sup Ct
NSW Sup Ct
Court
Fed
Mag
Ct
SA Dist Ct
WA Dist Ct
NSW Dist Ct
SA Mag Ct
WA Mag Ct
NSW Mag Ct
Precedent
 Original precedent = when interpreting a statute (R v
McGuiness) or creating a common law principle
(Mabo) for the first time
 Persuasive precedent = courts can consider precedents
set in other hierarchies
 Binding precedent = inferior court must follow
decision of superior court in the same hierarchy
Departing from precedent
 Distinguishing = if facts of current case are different
 Reversing = If, on appeal, a superior court disagrees with
the decision of the lower court. A new precedent is
established in the superior court (e.g. Grant v AKM the PC
reversed the precedent of the HCt)
 Overruling = If a superior court disagrees with an earlier
case ruling of an inferior court on a similar case. A new
precedent is created
 Disapproving = a court disapproves of a precedent from
another hierarchy (in R v McGuiness SA Sup Ct
disapproved of R v Martin – NSW Sup Ct)
Precedent
 In Viro v The Queen in 1975 the High Court held that it was
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no longer bound by Privy Council decisions
The UK’s Australia Acts in 1986 supported this
The High Court is the highest court in the Australian legal
system
Does it have to follow its own precedents?
No, but in the interests of consistency it should. Only in
extreme circumstances should it depart from its own
precedents
How do judges make law?
 The legislative arm, parliament, has the role of making
laws
 Through regulations we have seen how the legislative arm
delegates this power to the executive arm
 However the judicial arm also can make laws, through two
methods
 Statutory interpretation
 Common law principles
Statutory Interpretation
 The words and phrases of
legislation may need interpreting
 What is a ‘ball game’?
 What is ‘parking’?
 What is a ‘vehicle’?
 These interpretations are done by
the courts as cases come before
them and act as precedents for
later cases
 Some are intentional (leave to
courts)
 Some are unintentional
(ambiguity of language)
Examples of statutory interpretation
 R v McGuiness (aka Bassell v McGuiness) – Ct of CA =>
‘driving’ under the Road Traffic Act = steering and
braking in a towed car
 R v Adams – sitting on a chair with drugs underneath =
‘in possession of’ under the Illegal Drugs Act
 Tasmanian Dams and interpretation of ‘external
affairs’
Rules of statutory interpretation
 Courts will first look to parliamentary aids for
interpretation
 Acts Interpretation Act 1901 (Cth)= courts should look
at the statute’s object clauses
 Acts Interpretation Act 1915 (SA) = judges can examine
Hansard for guidance (especially second reading
speeches)
If no parliamentary guidance then some common law rules can be
followed
 Literal rule = use ‘plain meaning’
 Act read as a whole
 Golden rule = avoid interpretation that may lead to
absurdity/injustice (Adler v George)
 Mischief rule = what mischief was parliament trying to stop
(R v McGuiness)
 Ejusdem generis = “…. and other like services”
 Preservation of a fundamental right
Common Law
 If there is no statute to cover a dispute’s circumstances,
the court must still make a decision
 The court’s decision creates a ‘common law principle’
 For example in Mabo (No 2) the High Court created
the common law principle of Native Title
Common law principle of negligence
 Donoghue v Stevenson 1932
House of Lords
 Mrs D became ill after drinking a
bottle of ginger beer bought by
her friend
 The bottle had a dead snail in it
(due to careless storage
procedures of the company)
 Mrs D sued the manufacturer of
the ginger beer, the Stevenson Co
 At this time, as there was no
contract between D and S, D
could not recover any damages
(called privity of contract)
Donoghue v Stevenson
 Lord Atkins decided that there need be a development in
the law to protect all users of products (not just the people
who bought the product)
 He established the principle of negligence, whereby
manufacturers owe a duty of care to all consumers of their
product. This was referred to as the “Neighbour principle”
 Over time “Neighbour” came to mean motorists,
pedestrians, employees, patients, students
 YouTube - Snail In A Bottle
Elements of a Successful Negligence claim
1.
Duty of care owed
2. Duty of care breached
3. Foreseeable
loss/damage resulted
from the breach
Development of negligence
 Grant v AKM (itchy underpants)
 Hedley Byrne v Heller (professional advice)
 Jaensch v Coffey (nervous shock)
 Hackshaw v Shaw
 Owner of land shot at a trespassing vehicle. It was
reasonably foreseeable that a person was inside vehicle
even though the owner of the land did not actually know
the person was in it
Relationship between case law and parliament
 After a common law principle or a statute is
interpreted parliament, as sovereign law-maker, has
three options
a) Leave the decision to stand as a SI or CLP
b) Codify the court decision into statute
c) Override the court decision (remedial legislation)
Codification
 Parliament may wish to codify to avoid any later over-
rulings by superior courts, or to strengthen the principle
established through clarification legislation
(complementary legislation)
 Federal parliament passed the Native Title Act 1993 (Cth)
after the Mabo judgment
 State parliament passed the Manufacturers Warranties Act
to codify consumer rights regarding defective goods
Override the court decision
 If parliament disagrees with the interpretation of a
statute or the creation of a common law principle it
may pass remedial legislation to over-ride the decision
 For example R v Philips
 s33 Summary Offences Act and word “indecent”
Override a statute’s interpretation
 R V Philips
 Philips charged under s33 Summary
Offences Act for having ‘indecent
material’ when he video taped boys
urinating in a toilet
 Court of Criminal Appeal found
Philips not guilty as the footage he
possessed was not indecent in itself
 SA Parliament passed the Offensive
Material Amendment Act which gave
a new definition of ‘indecent
material’ to include the method by
which the footage was obtained.
Override a common law principle
 R v Ridgeway – entrapment case
 SA parliament enacted Criminal Law (Undercover
Operations) Act to allow evidence obtained
undercover to be admissible
Override a common law principle
 SGIC v Trigwell
 Rooke collided with sheep that
had wandered onto road off
Kerin’s property (through a
broken fence) and then Rooke hit
Trigwell
 Trigwell sued SGIC (R’s insurer)
and Kerins
 Supreme Court of SA (King J) =
SGIC liable but not Kerins due to
rule in Searle v Wallbank (owners
of land owe no duty of care to
road users unless animal is
dangerous)
SGIC v Trigwell
 SGIC appealed to High Court (they wanted to find K at
least partially liable)
 Majority of High Court (Mason J) believed that it is up to
parliament to change common law principles such as the
Searle v Wallbank rule
 Murphy J (in dissent) believed the courts should change
outdated precedents
 Soon after SA parliament passed the Wrongs Amendment
Act to abolish the Searle v Wallbank rule
Supervision of case law
 Parliament supervises by codification or over-ruling
 Parliament supervises by giving guidance as to
interpretations
 Parliament also passes the Acts to give courts their
jurisdiction
 Courts supervise through the doctrine of precedent
and judicial review (appeals)
Advantages of case law
 Courts are able to provide justice by making new
common law principles (negligence, Native Title)
 Courts can develop these principles over time (Jaensch
v Coffey)
 Courts give meaning to words of statutes (R v
McGuiness)
 Doctrine of precedent achieves consistency
Disadvantages of case law
 Courts not democratically elected
 Cost of court is prohibitive to some
 Ex poste facto decisions
 Courts only deal with facts and case before them
 Doctrine of precedent may be inflexible (SGIC v
Trigwell)
Comparing case law with legislation
Case Law
Made by
Courts
Democratic?
GG/AG appoint
Independence
Tenure and J.I.
Legislation
Parliament
Regular elections
Resp to ppl
Authority
Parl acts set jurisdiction
Constitution
Power
SI and CLP
Sovereign law-maker
Precedent
Doctrine applies
Past or future effect?
ex poste facto
Breadth of decision
issue at hand
Not bound
in futuro
broad and comprehensive