Sources of Law: Legislation

Sources of Law: Legislation

[2.1] Introduction

2.1.1 What is Legislation?

• Law that is enacted by a legislature
• Refer to an Act/Statute
• Commonwealth, States, Territories all have legislatures that are capable of    making law

[2.2] The Legislative Powers of the Australian Legislatures

2.2.1 The legislative powers of state governments

• Limitation: Legislation enacted by a state or territory only operates within its particular borders.
• They share some legislative power with commonwealth parliament

2.2.2 The legislative powers of the territories

• Self-governing territories has broad power to legislate.
• Limitation: Cannot validly enact laws that are contrary to Commonwealth Law

2.2.3 The legislative powers of the Commonwealth government

• Applies throughout the Australia
• More limited in their scope than the state and territory government
• Powers are specified in the 09s
• Some powers are exclusive to Commonwealth parliament while others are shared with the states 
• Various section lay down a limited number of matter that only the Commonwealth government has the power to legislate (EXCLUSIVE POWER) E.g. S52, 90,114,115,121,122
• S51 lists a lot of matter which commonwealth shares legislative power with the state government
• This is because that Commonwealth can override any contrary state or territory legislation.

[2.3] The Legislative Process in Outline (make By-Law)

2.3.1 Understanding the legislative process

• Bill vs. Act
• House of Origin & House of Review
• Distinguish between first, second, third ‘reading’ of a bill
• Second reading speech
• Explain Royal Assent
• Royal Assent vs. Commencement

2.3.2 Bills

(a) Drafting a new law

• First considered by the cabinet (PM, top-ranking government minister) to settle any political issues
• Then legal drafting by experts employed by the government as parliament counsel
• Prepare a draft of proposed law with all provisions needed to give effect to the government policy (?)
• Completed draft of proposed legislation is called a ‘BILL’

(b) The explanatory memorandum

• Parliament counsel summaries the bill and explain the effect of each provision

(c) Review of the bill

• Reviewed by relevant minister, government party committee and relevant government department.
• Then Bill is ready to introduce to the legislature

2.3.3 Procedure in the legislature