The Australian Legal System

In Australia the two main sources of law are the parliament and the Courts.

The parliament takes responsibility making most of the laws. This is civil law. They use statute law, and this is when elected politicians can have the power to make laws that can be applied in the federal or state parliament level. The parliament can dictate authority to others to set up legal rules. The parliament can make legislation. They can have power to create laws unlike the court.

The court can set up legal precedents by using case or common law. They can also follow the laws made by the Australian government or the state government, but the judge can make decisions about a legal case in court. But the main difference they lack the power to make a law.

As a general rule, statute law takes precedence over the common law, judgement law.

Examples of Civil Law would be:

- Defamation

- Housing

Examples of common law would be:

- False imprisonment

- Conspiracy to defraud

The common law is made by the judges when they deal on a case to case they deal with every day in court. They do build on the precedent and interpret from earlier court decisions. The written laws (Acts of Parliament) may be used in some court cases and some court cases do not cover them. The written laws do not cover every court event.

How statute law is made in the commonwealth

House of Representatives

1. 1st reading: The bill is launched to the House of Representatives

2. 2nd reading: Members discuss and vote on the main idea of the bill

3. House committee: Public query into the bill. Reports back to the House.

4. Consideration in detail: Members talk about the bill in detail, including any switches to the bill.

5. 3rd reading: member vote on the bill in its final launch.

6. Bill passing: The bill is passed in the House of Representatives and sent to the Senate

Senate

7. 1st reading: The Senate is first introduced to the bill

8. 2nd reading: People in the senate have a debate and vote on the main points of the bill

9. Senate committee: They have a public inquiry into the bill. After the public injury they do report back to the senate.

10. Committee of the whole: People who are in the senate discuss in depth of the bill. This included any changes into the bill.

11. 3rd reading: People in the senate vote on the bill in its final launch.

12. Bill Passed: The bill is finally passed in the senate

Governor-General

13.The royal assent is the 2nd last step. This is called the Royal Assent. The Governor – General has the responsibility to sign the bill

14.Bill is now an act of parliament

15. A Law created for Australia

Make staute law in Queensland

1. Minister with responsibility for the area of law/policy draws up the Bill and seeks approval from State Cabinet.

2. With State Cabinet approval, the Parliamentary Counsel prepares the Bill. Bill is presented to Cabinet and all Government Members of Parliament.

3. If approved, Bill is introduced to Parliament by the Minister for the ‘First Reading’.

4. Bill proceeds to ‘Second Reading’ and then is assigned to a Parliamentary Committee for discussion and debate.

5. The ‘Third Reading’ takes place in Parliament, and all present Members of Parliament vote.

6. Bill is then sent to the Governor for royal assent where it becomes law and is declared an Act of Parliament.

The principle of the Doctrine of Precedent is set up by a superior court. It must be followed in other cases that are similar by the specific court and other courts. The Doctrine of precedent was set up to show consistency when the judges make decisions, and the court cases should be done at the same time.

methods of common law statutory interpretation

Literal Rule

The literal rule is a method when the court uses literal ways to explain the legislative language. This means that they have to express accurately what the author or speaker means. They have to use the words used in an Act of Parliament in a literal manner and interpret them in a normal, grammatical sense.

Golden Rule

This is a change from the Literal Rule. The literal rule is used when the basic meaning turns into an outcome of unfair justice or is not consistent with the Parliament’s intentions. This is also used when the basic meaning is absurd

Purposive Approach (Mischief Rule)

This used when the judge is not willing to use phrases of interpretation. This approach is used when common law is used explain how the statue law is interpreted.

Australian Constitution section 109 ‘Inconsistency of Laws’

When State law is inconsistent with Commonwealth law, the Commonwealth law has more power. This makes the State law become inconsistent and not valid.

How to interpret this ?

Golden Rule. Because this type of statutory interpretation may have bad outcomes such as unfair justice and it may not match the parliament intentions. This will happen in common law and if a court case happens it may cause unfair justice for a certain party. May not be happy with an outcome and may appeal to a higher court. When the court case is done in a specific state, but the federal government law is different