Parliament and Statute Law

Textbook Chapter Five

Why do we need laws?

Laws exist to regulate human behaviour. Just as school rules help ensure that our school operates according to it's purpose, laws in society ensure that people act according to what is accepable, safe, and cohesive. In Australia, there are three main types of law:

Types of Law

Constitutional Law: also known as 'superior law'. This is the Australian constitution, and it sets out the structures and institutions that govern Australia
Statute Law: these are the laws made by Parliaments. They begin as draft laws, or Bills, and once approved by both houses of parliament and signed off by the Governor General, they become laws, or 'Acts of Parliament'. Statute laws are superior to Common laws- when the two conflict, Statute Law overrides Common Law.
Common Law: these are laws made by judges in the courts of Australia. They are made when there is no existing statute law. They 'fill in the gaps', ensuring that when an original or new situation occurs, a legal judgement can be made that is consistent and fair. Common law is inferior to Statute Law.

Statute law in Australia

In Australia, Parliaments make statute laws. Due to our Federal system of government, the Commonwealth and state governments make laws for different aspects of society.

Commonwealth Law Making Powers (Exclusive)

Australia's Commonwealth Parliament makes laws for the areas of society depicted on the right.

Section 51 of the Australian constitution outlines most of these areas of law making (sections 52, 86, 90, 114, 115, and 122 also contribute). These are known as 'exclusive' powers, because they are exclusively assigned to the Commonwealth Parliament by these sections of the constitution.

Shared Law Making Powers (Concurrent)

Some areas of law making are shared by both the Commonwealth and State Parliaments. They are known as concurrent powers. An example of this is education. The Federal government is responsible for Universities, and the State governments are responsible for primary and secondary schools. Under section 109 of the Constitution, if both a State and Federal government make laws about the same issue, then the law made by the Federal government overrides the state government law.

State Law Making Powers (Residual)

The State Governments make laws for the areas of society depicted on the left.

Any area of the society that is not explicitly given to the Commonwealth Parliament as an exclusive power and is not a concurrent power is known as a residual power. All of these are covered by State Parliaments.

How Statute Laws are Made

Statute laws follow a rigorous and detailed path from being a draft law (a Bill), to a Statute Law (an Act). This pathway is shown in the diagram on the right.

Most Parliaments of Australia are very similar. They have two houses- the House of Representatives and the Senate in the Commonwealth Parliament and the Legislative Assembly and Legislative Council in the States. The Crown is also represented in Parliament by the Governor General at a Commonwealth level and the Governor at the State level. For a Bill to become an Act, it must be passed through both houses of Parliament, then given royal assent by the Queen's representative.

Any member of Parliament may introduce a Bill. Most Acts of Parliament were introduced by the government of the day. A Bill that is introduced by a non-gernment member is called a 'private members bill.' A Bill must pass through both houses in identical form. If both houses cannot aggree, the Bill is said to have been 'blocked'.

A Bill's Path through Parliament

Initiation

The Bill and the name of the member introducing it is listed on the notice paper.

1st Reading

The full title of the Bill is read aloud to the House.

2nd Reading

The purpose of the Bill is outlined by the member who introduces is, and it is debated by the House.

House Committee

There is a public inquiry into the Bill and it's possible consequences if enacted. Various specialised committees (small groups of members of a House) can also report back to the House.

Consideration in detail

Members of the House can discuss the Bill in detail, and propose changes to the Bill.

3rd Reading

Members of the Houes vote on the Bill in it's final form. If a majority vote in favour, the Bill is passed onto the Senate.

Senate

The Senate follows the same processes as the House of Representatives.

Royal Assent

If the Bill passes both Houses, it is signed by the Governor General and becomes an Act of Parliament.

What Prompts the Creation of a Bill?

Bills are created in response to many different events and groups. Perhaps the primary influence is Government Policy. The government of the day implements their ideas about how best to run the country through Statute Laws. Pressure groups are organisations of people concerned with a particular issue that attempt to influence the government to make laws that reflect their values. A crisis can also influence statute law. The Coronavirus is a prime example of a crisis that initiated many new laws. Members of the public service (government departments) can also provide adivce to the government on the creation of new laws. Individuals and members of the public can also prompt the government to change laws. Changing values surrounding same sex marriage is an example of this.

Bills before parliament

Delegated Legislation

Parliament has the authority to give government departments the ability to create laws.

Page updated

Google Sites

Report abuse