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Sources and Functions of Law (Sem 2 test) - Coggle Diagram
Sources and Functions of Law (Sem 2 test)
Functions of law
social cohesion- keeping society together to avoid anarchy
laws must be able to protect societal values and fundamental human rights
values: society values are never homogenous therefore it is impossible to make laws to satisfy everyone. laws are made with the intention to satisfy the majority and represent society's current values. values change overtime to reflect change in lifestyle and community and technology advancements
refers to fundamental civil rights such as freedom of speech association, religion
1948- aus signatory to un declaration of human rights
political and democratic rights- individual right to be involved in the democratic process which are protected by the cmwlth state and territory electoral legilsation
casting vote in referendum
voting at regular elections for MPs
legal rights- identifies the rights individuals may receive in a legal dispute and are protected by common law rules and codified law
presumption of innocence
equality before the law
right to present their own case to an independent judge
laws must be able to adapt to changing circumstances and environments
society is dynamic therefore laws need to continually adapt to changes in societal values, personal attitudes, global developments, environmental factors technology etc
e.g consolidation act 1935 amended laws to outline the consequences for the manipulation of an ATM for personal gain
ways to change: constitutional alteration (referendum), statutory reform, changes to case law, changes to delegated law
laws set acceptable standards of behavior and prescribe legal consequences for breach
unacceptable behavior- standards defined by law making institutions parliaments, courts and delegated authorities of which breaches incur a legal consequence
public wrongs
crimes that incur a sanction as a sign of community condemnation
private wrongs
where one legal entity infringes on another's rights or interests
laws create institutions of government to make laws and enforce them and for adjudicating bodies to bring about just outcomes o legal disputes
laws made by institutions of government that use procedures respected by the community operate in legislative, executive and judicial branches (separation of powers)
executive refers to the government, assisted by numerous gvt departments and agencies. they enforce and administer law such as police, employed by a gvt department, who investigate breaches of criminal law
legislative refers to the parliament, whose primary function is to make laws which outline acceptable standards of behavior
judicial arm refers to the court system, who administers justice by resolving disputes legally, and judges making case law (refer to previous cases when no statute law exists)
social progress-social progress refers to the 'orderly progression' of society to ensure social cohesion for future generations. laws that facilitate progress are designed to:
preserve the environment for future generations
assist the development of youth into adults
provide education for all citizens
foster good health practices
problems w achieving sp and sc: often current standards are improved at the expense of future generations, losing sp for the future
law prescribes conduct and breaches incur a legal penalty
legal rules are guidelines of lawful behavior made to promote and maintain social harmony- when broken a dispute ensues for which the court can impose legal consequences for resolution
non legal rules- cannot be enforced by courts due to no legal force- the consequence is at the discretion of the person or institution who created them
rule of law and separation of powers
the rule of law states that all people are equal before the law and that all gvt action will be undertaken in accordance w the const law. three elements of the rule of law:
supremacy of the constitution
this refers to the idea that the constitution is supreme, and all persons and institutions of government draw their conduct from the principles prescribed.
the existence of fundamental human rights
the existence of fundamental human rights refers to the concept that some human rights are always maintained and acknowledged under any circumstances, such as the legal right to presumption of innocence
equality before the law
equality before the law refers to the principle that all institutions of government at all times should exercise their powers so that all people are treated equally before the law
rule of law and institutions of government
parliament
parliament exercises the rule of law in a number of ways, including: chief legal officers only exercise power prescribed in const, enact laws to facilitate legal processes e.g. electoral laws, enact laws to protect human rights e.g. racial discrimination act 1975 (cmwlth)
courts
HCA original jurisdiction resolves disputes regarding the validity of federal/state statutes in a legal manner to ensure that these statutes are in accordance with the constitution, hca also resolves disputes while acknowledging individual rights such as the presumption of innocence
constitutional monarchy
constitutional monarchy refers to a system of government, where power is vested in someone (GG) to exercise power on behalf of the head of state (king/queen). the gg is appointed by the crown on advice of the PM in accordance with a written constitution.
constitutional gvt: gvt only exercises power consistent with const, head of state exercises power on advice of PM.
each state has their own written constitution
the gvt is made from the majority in the LH provided that:
gvt is held directly responsible for advice given to the GG- head of state exercises power on advice of PM + cabinet
PM ensures the advice given to the GG is consistent with the constitution
PM can guarantee passage of supply bills
federal nature of the cmwlth
cmwlth parliament has 3 elements:
const prescribes that cmwlth parliament is bicameral with a LH and UH
crown is the head of parliament
GG has no active role in debating and voting processes of law making other than summoning MP's to attend parliament, proroguing (discontinuing) parliament between sessions and dissolving parliament in preparation for election (also gives royal assent to bills to become acts)
each of the 9 entities of the federation has its own sovereign law making body- parliament- along with an executive and judicial arm
au federation also includes local gvt councils (not mentioned in const as they are a state/territory parliament creation)
separation of powers
the separation of powers refers to the isolation between the executive, judicial and legislative arms of law. however, australia does not have a complete separation of powers as ministers from the executive arm also sit in n on parliament (legislative)
US complete separation of powers- the congress is completely separate from the president and their cabinet in the US, meaning they are directly responsible to the people rather than congress (however must still remain in favor of the congress)
representative and responsible government+ judicial independence
rep gvt definition and elements
representative government refers to the representation of the people through their government- in Aus this is through indrect democracy. rep gvt is created though a number of elements
universal franchise- all citizens over the age of 18 are given the chance to directly vote
regular elections
representative of society's current values- ensures reps are held accountable to voters
secret ballot
one vote one value- every vote cast has the same value and is cast in secret to avoid intimidation
parliamentary privilege
MPs cannot be sued for defamation for what they say in parliament- ensures that they are able to speak completely freely
payment of MPs
ensures the MPs can continue being in parliament
rule of law-
rules to regulate the lawmaking process
federal executive power and 3 main arms
codified/constitutional arm
codified in section 61 and s62 which refers to the power vested in the GG
also refers to the cabinet ministers, the fact that they must be selected from parliament etc
conventional arm- while s62 outlines GG powers, this power is exercised by unwritten rules called conventions which determine how gvt is formed and exercises executive power
the existence of conventions (unwritten rules) in the executive gvt
Constitutional RULES include that the GG exercises executive power and accepts advice from the FEC, ministers are appointed and dismissed by the GG, ministers are the head of government departments and must be members of parliament, and that civil servants are appointed by the GG or delegates
Const CONVENTIONS include that the exec gvt is formed from the LH majority party, the PM is sworn in as the head of gvt by the GG because the majority party selected them as their leader, the GG swears in the ministers as the PM advises, and the GG exercises exec power on the advice of these ministers at FEC
general admission arm
refers to the gvt departments which are run like a business- they enforce specific legislation
e.g. centrelink
CEO of dept- head of that department (under the minister)
c-suite- refers to employees of that department (called public/civil servants)
run by a minister acts as the link between the CEO and department and the parliament- this minster may be replaced at any time
state executive power
functions similar to federal system
const arm: state gvt exercises power on advice of minister in state exec council- accepts advice from premier and responsible ministers
convention of gvt arm:gvt formed from LH majority and gvt swears in premier and ministers
general administration arm: civil servants + gvt departments e.g. school teacher, police officer
cabinet (exec gvt)
the gvt holds real political power as it is formed from the majority party (LH) headed by the PM (federal/cmwlth) or the premier (state) or chief minister (territory). the other members of gvt are ministers.
fed gvt: 30 ministers
SA gvt: 14 ministers
junior ministers: not members of the cabinet but assist cabinet ministers with their portfolio
speaker/president generally comes from the majority party
PM advises the appointment of ministers
forming federal gvt
members of parliament directly elected by the people in election
PM is the leader of the majority party and gets sworn in by GG
PM chooses cabinet ministers who also get sworn in by GG
cabinet formed by ministers who meet weekly with GG and PM in private (as the fec) to form gov policies (convention of responsible gvt- responsible to themselves)
PM allocates portfolios to ministers
main roles of federal gvt
responsible for administering statutes made by federal parliament- accept responsibility for gvt departments and statutory authorities such as depart. of education, health, police, collection of taxes
drafting bills for parliament
agreements/contracts with other gvts
appointing judges and heads of departs.+ statutory authorities
signing conventions at UN and treaties with other nations
deciding gvt policies e.g. immigration numbers
making regulations via delegated power from enabling acts
responsible gvt definition and key features
in the USA
in US, president and cabinet directly responsible to people rather than parliament as they do not sit in congress.
responsible gvt refers to the system of gvt based on the British Westminster system form of
parliamentary democracy
that means a parliament will meet to debate issues and make laws while an unelected body will perform an executive function to administer and enforce these laws. the executive is drawn from elected parliament members and held directly responsible to the parliament (therefore only indirectly responsible to the people)
pm and ministers come from majority party and sit in parlt.- therefore they are only indirectly responsible to the people and directly responsible to parlt
chain of accountability- complex web of checks and balances to ensure each person in executive arm follows rule of law with no arbitrary power
ministers public performance is subject to parliament scrutiny
this occurs via question time, grievance debates, debating stages of bills and special committees
cabinet solidarity- ministers in public should be united on issues of gvt policy
gvt is help responsible to electorate in a number of ways:
ministers must be MPs so citizens have access (indirect democracy)
ministers must answer questions about their policies and department from opposition (question time in parliament)
minister resigns if they lose confidence of palrt or misleads it (uncommon)
judiciary has responsibility to act as the 'keeper' of the const by not being involved in either executive or legislative matters and provide an impartial body to decided when either arm has overstepped their power
key features of responsible gvt:
accountability
in a well regulated system, those with authority must be accountable or answerable for their actions- each level of gvt is accountable to the one below: crown acts on advice of > executive ministers, who are accountable during question time to> legislature; MPs are accountable during elections to> electorate.
relationship between legislative or executive
ministers must be MPs- elected members of the legislature (codified in state/cmwlth const.)
exercise of executive power
convention that the GG acts on advice of the PM provided that 3 conditions exist:
PM +gvt commands majority of LH
PM can guarantee the passage of supply bills
PM's advice is consistent with const. law
senate is expected to pass supply bills so gvt can govern
conventions of responsible gvt:
PM is head of gvt and must sit in LH to right of speaker
speaker has unlimited access to GG to identify which party leader has confidence of house
ministers can sit in both houses on front benches
HCA is independent therefore cannot give legal advice to gvt
judicial review
original jurisdiction- refers to the principle of a democratic state to exercise power in an independent judiciary- done by the HCA which is primarily a court of judicial review
refers to the power of a court to make decisions for someone being trialled before an appellate court
court reviews legislative and executive power- must decide if gvt or parlt has exceeded its powers i.e. it is the guardian of the constitution
HCA interprets const to decide if parlt acted ultra vires (beyond the powers) of the const
this doctrine of ultra vires acts as a safeguard against unlawful and arbitrary use os power by legislative and executive which ensures the appropriate application of the rule of law
appellate jurisdiction
an appellate court that may hear appeals after someone does not accept decisions made in a court of original jurisdiction
parties in a dispute have the legal right to ask an appellate (appeal court) to review the decisions of a judge in a court of original jurisdiction
parties have the right to appeal to state appellate court and by leave from the full court of the supreme court, to the full high court
judicial independence- an independent judiciary is crucial in a democratic society where the judge must be free from interference or intimidation. this is achived by the judiciary not performing a legislative or executive function
appointment/dismissal
judges appointed by GG on advice of attorney general or the cabinet
dismissal by the GG on address of both houses of parliament may occur on the grounds of crime or proved incapacity- wither physical or mental (e.g. dementia) however this is not common
tenure
permanent position, however, judges must retire by 70 (65 for family court) as the 1977 referendum decided. this prevents judge's potential less progressive views from stopping progression with society values in court decisions
pay
fixed remuneration-pay cannot be diminished, it only increases to prevent judges from being forced to retire
privilege
judges are protected by the privilege of not being able to be sued for defamation- they have the freedom to say what they want (within reason) in a court case
judicial independence performs the cornerstone of the separation of powers, it is vital if the courts want the confidence of society.
role and composition of parliament
federal parliament
upper house (senate) red
composition/membership
composed of 12 members from each state and 2 from each territory (76 total)
role- house of review (scrutinising function)
meant to review bills from a national perspective
legislative- senate may initiate any bill excepting a supply bill (s53)
original intention- the senate would protect the rights and interests of the states, however the growth of the 'party function' means that this function has been diminished.
investigatives- senate committees (standing and select) investigate areas of policy and public interest.
minority rep- voting system means minority parties and independents may be repped in parlt.
presiding officer- president. one member of senate is voted in to perform same role as the speaker
black rod signifies authority same as the mace
tenure
members are re-elected every 6 years- brings stability into law making process, however, half the senate are re-elected every 3 years along with territory mps
voting
multi member electorates using a proportional voting system, which allows minority parties and independents to gain sufficient numbers of votes
modelled on the US senate to accommodate democratic principles
hostile senate
wheres the gvt does not have the majority in the UH due to different voting method- true of both state and federal parliaments. a hostile senate makes the passage of bills more difficult and often requires negotiation with non gvt parties e.g. minorities and independents who hold the
balance of power
lower house ( house of reps) green
composition/membership
151 mps elected on an electorate basis- gvt is formed from majority (guaranteed at 76 but gvt may still have majority w less than 76 due to minority and independents)
voting system
directly elected through a preferential voting system using electorates divided by approx same population (around 80, 000)
tenure
mps are re-elected every 3 years
presiding officer
speaker
mace signifies speaker's authority to allow his/her majesty's parlt to function effectively
speaker is elected at the beginning of the sitting of a new parliament- generally someone from majority party. the speaker chairs debates in the house with the mace on the table in front of them when they are presiding
where gvt is
formed
- gvt needs 50% + 1 seats in this house to govern in its own right (76). gvt sits to right of speaker and opposition to left
seating arrangement
speaker sits at front, with pm to the right of the speaker
cabinet ministers sit on front (treasury) benches
shadow ministers from oppostion sit drectly across from ministers
gvt backbenchers sit directly behind them
cross benchers and minority parties sit on benches in the middle directly in front of the speaker
inherited british traditions
westminster conventions: by convention PM must sit in the LH. treasurer also sits in LH, responsible for the budget (supply/money bills)
decor- UH furnished in red and LH furnished in green
inherited formal debating procedures, (readings) are used in law making process, and a public record of proceedings called
hansard
is kept
public is invited to public gallery to observe sittings of parliament
parliamentary privilege- exists to prevent powerful interests from stifling debate in parliament by threating to take civil action for defamation
functions of parliament (legislative) or rep gvt has 4 functions:
democratic function (3 specific roles)
to maintain the democratic process aus adopted the principles of rep gvt from the UK- main role is to allow elected reps to make laws
to dtermine executive gvt- westminster system of responsible gvt adopted, convention states that exec gvt is formed from majority LH party with ministers drawn from both houses, therefore they are held directly accountable to the parliament
to determine political leadership and statesmanship- leaders of 2 major parties chosen for ability to perform, with PM selected by own party but not sworn in by GG unless they have the confidence (majority vote) of LH
legislative function
parliament makes statute laws that set acceptable standards of behavior and imposes consequences which help achieve the dual functions of law (sc and sp)
both houses of parliament have equal power to originate supply bills (except supply bills)
proposed laws are either public or private bills
supplying function
parliament passes supply bills to allow gvt to collect tax and spend public money. supply refers to legislation that authorises the spending of publicly raised taxes
s53- only LH can can originate supply bills, senate cannot ammend them but can reject them
scrutinising/reviewing function
closely checks new bills and reviews existing ones
provides system of checks and balances over executive and judiciary to ensure the rule of law is followed e.g. parliamentary sovereignty can overrule case law or disallow a regulation
SA state parliament is bicameral, with the LH caled the house of assembly composed of 47 MPs (tenure of 4 years) and an UH called the legislative council with 22 memebers that rep the whole state (tenure 8 years)
law making and resolving deadlocks
legislation
parliament executive power controlled by 2 main factors
constitutional govt: cmwlth const, state const, statute of westminster, australia acts, international agreements and HCA interpretations
democratic factors: public pressure and discipline of political parties places restrictions on law making abilities, parliament is sovereign law making body (except when HCA interprets const), parliament also has power to delegate law making powers to delegated authorities.
sources of legislation
7p's
election promises- electoral mandate for proposed actions if that party wins
government policies
poor court decisions- remedial legislation e.g HCA acceptance of searle v wallbank precedent in trigwell case led directly to amendments in the wrongs act to apply the tort of negligence
pressure groups- external groups that influence and pressure decision-making e.g. greenpeace
people power- particularly through media, e.g. radio talkback on public interest issues
parliamentary committees- select (temporary) or standing (permanent- e.g. defence) committees investigate issues and suggest reccommendations
public service- suggestions work their way through the chain of accountability. exec committees may also be established
types of bills/acts. a bill is a proposed new law drafted by the OPC and presented to parliament for debate and enactment, an act is a bill that has passed both houses in the same form and a law is an act that has been proclaimed and published in the GG
public bills- drafted and proposed by gvt for society- introduced by a minister and intended to set acceptable standards of behavior so values and rights are protected e.g road/traffic act. may start in either house
ordinary bill- proposes an entirely new law
consolidation bills repeals and combine several acts into one for accessibility e.g. criminal law consolidation act 1935 (SA)
repealing bills- terminate an existing act
amendment bills- identified by the word 'amendment' in the title
supply/money bills (s53)
private members bills are initiated by an individual MP (not a minister) and they cannot impose/vary a tax or consolidate money from a consolidated revenue fund. they are usually for the purpose of addressing controversial social/moral issues that thegvt may not want to promote as a public bill for fear of electoral backlash e.g. abortion
voting on bills in parliament
'divison' formal ballot- MPs have 4 minutes to get to the house and may cast votes along party lines or as a conscience vote
'on the voices' verbal vote
law making process- involves features of aus const system of gvt including const monarchy (parliament can only enact legislation that is consistent w const, queen acts on advice of parliament to assent bill) rep gvt (elected mps debate and vote on bill> gives effect to doctrine of legislative review), and responsible gvt (drafted by gvt as part of their legislative program, ministers explain bills in debate, gvt controls legislative agenda of parlt)
pre parliamentary
cabinet discusses and agrees for a bill to be drafted
OPC (official parliamentary council- experts in drafting legislation) drafts the bill as well as an explanatory memorandum
draft bill is sent back to the legislation committee of the cabinet (cabinet again) and approved
parliamentary (house of reps)
initiation- bill is introduced to the house of reps by the minister responsible for the bill. bill is tabled for reading with copies of the bill and explanatory memorandum distributed. notice given to house of new proposal
first reading- title of bill is read by clerk of house. opposition is given a chance to debate- they won't disprove at this stage
referral to a select or standing committee (optional). the bill may be referred to an expert committee such as JSCOT for an advisory report
second reading- minister gives second reading speech where the broad principle, goal and planned commencement date for the bill is announced. opposition is given time to state their stance.
consideration in detail- bill is debated clause by clause, more informally. every single member of parliament is given the chance to have a say. amendments are suggested, debated and voted on
third reading- long title is read by clerk of house- not much actual debate
transmission to senate- speaker confirms that LH has passed the bill and sends a request to president of UH for review of the bill
parliamentary (senate- house of review)
first reading- same stages as LH
referral to a select/standing committee (optional)
may occur referred to senate committee who meet outside parliament to scrutinise the bill. members of the committe drawn from all parties and independents in the senate
second reading (minister speech not given)
committee of a whole
third reading
post parliamentary
gg gives royal assent to the bill to become an act/law on advice of presiding officer from originating house (according to s58)
bill is published in the government gazette and proclaimed along with extra info such as the commencement date. commencement date may be delayed to coincide with the start of the financial year, new years etc
disagreements v deadlocks (federal)
disagreements
abandonment
bill is 'abandoned'- shelved for the time being, may be brought up at a later date when the odds are more in their favor
compromise
UH and LH are able to reach a compromise- conditions for double dissolution not met
deadlock > double dissolution- outlined in s57, only applies to bills originated in house of reps
a process that involves four stages- triggered by the constitutional trigger of the senate rejecting/amending a bill in a manner unacceptable to gvt twice with a period of 3 months in between
STAGE 1: the senate rejects a bill/amends it in a manner unacceptable to gvt and bill is sent back to LH. lapse of 3 months occurs, and the LH passes bill again, senate rejects/amends bill again- this creates a constitutional trigger for a double dissolution
STAGE 2: PM advises GG to dissolve both houses of parliament and call for a snap election- this can occur up to 6 months before a regular election is scheduled
STAGE 3: occurs if gvt is won back, the LH passses the same bill (shows committment to the bill). if re-elected senate is still hostile to bill, bill is rejected again
STAGE 4: GG convenes a joint sitting- where both the UH and LH sit in conjunction w each other and vote on the bill. if the bill is passed with an absolute majority, it can be proclaimed as law
there have only been 7 double dissolutions since 1901 since they are very high risk- gvt may be lost, therefore the gvt must be very confident in their ability to win back gvt in election and must also be sure that the bill is worth the committment
most famous dd 1975- whitlam
1974 dd resulted in a joint sitting
deadlocks- constitutional trigger for a double dissolution where a difference over a bill exists and compromise is not possible
double dissolution mechanims
how and why would gvts use this
a gvt may use the 'threat' of an early election to gain power
sometimes it may be the only option to pass a bill that the gvt is really committed to
evaluation of mechanism
howard (2003) suggested two reforms: the first was to go straight to joint sitting after the bill was rejected for the second time, however this was criticized as it took away from the scrutinizing function of the parliament. the second was that a joint sitting may be convened after a regular elction if the senate rejects the bill again
resolving deadlocks (state)
abandonment- state may abandon bill in the same way fed parliament would do so
compromise- members meet outside parlt in a 'managers conference' to come to an agreement. rarely does not result in a compromise
there is a dd mechanims in the state const, however it is not practical to use as it does not have the possibility of a joint sitting
Delegated legislation
defintition
dl refers to delegated legislation created by a subordinate authority that still has the same legal effect as parliament legislation and can incur legal consequences, however it has not been passed specifically as a parliament bill
range of DL authorities
local councils- control areas such as local traffic, cat and dog regulations. jursidiction is limited to council areas
sporting bodies e.g. adelaide oval authorities
semi-autonomous gvt organisations e.g. australia post may be established by an enabling act
executive councils
gvt departments- chain of accountability> civil servants design DL, minister presents DL to gg in council, gg prcolaims dl
reasons for DL
relieve parliament workload- legislation provides outline (social issues and principle of law) and DL provides detail- administrative and technical on top of broad principles
administrative convenience- less time spent on working out details as DL is simpler than amending bills
lack of MP expertise in one area- e.g. civil servants may create DL when they have the skills and expertise to
political considerations: back door method for gvt to create laws
emergencies- quicker dl creation means sudden problems can be dealt with faster
decentralized decision making- councils are more likely to have local knowledge of their area's issues and can review and enforce their own laws
process for DL to become recognisable law
parliament- legislative stage - passes an enabling act with regulatory power and guiding legislation
EXEC STAGES: person introducing delegate law consults w those who the delegate law will affect
dl is drafted by either opc, the minister themselves, or a law firm that councils may hire specifically for this purpose
executive approval: bill is approved by cabinet member/full cabinet and validated using two docs: docket containing original instructions and certificate of validity
dl is tabled, where parlt has 14 days (SA) and 15 days (cmwlth) to reject the regulation (disallowance). either house may disallow, which is done via standing committee. either joint committe for subordinate legislation (cmwlth) or standing for regulations and ordinances (state)
dl is proclaimed by queens rep at exec council
types of DL
ordinances
rules
regulations (most common)
by laws (council)
notices