YEAR 11 P&L ATAR, TASK 3 REVISION, CH.

5 PARLIAMENT AND
LAW
What is meant by the term ‘jurisdiction’? Differentiate between the two types of jurisdictions.

Provide examples to support your answer.

Jurisdiction refers to the power to make laws. There are two types of jurisdiction: legal and
geographical. Legal jurisdiction refers to the specific area of law the law is regarding. Family
laws cover issues related to marriage, divorce, child custody, and parental issues. Trade
laws cover issues related to taxes, tariffs, imports and exports, etc. Legal jurisdiction is
divided between the three branches of government by the Constitution. For example,
Section 90 of the Constitution declares the power to put tariffs on trade as exclusive,
meaning only the Commonwealth government has legal jurisdiction to make laws about it.
Section 51 of the Constitution classifies marriage and tax laws as concurrent, meaning both
the state and federal governments have legal jurisdiction to make them. Those areas of law
that are not mentioned in the Constitution at all, such as urban planning and land use, fall
into the category of residual powers, meaning they are for the state governments to handle.
Geographical jurisdiction refers to the land and sea areas over which laws apply.
Geographical jurisdiction is also classified by the Constitution. Those powers which the
Constitution classifies as exclusive, have national jurisdiction, concurrent powers have both
national and state jurisdiction, and those that are residual, only have state jurisdiction.
List the four types of law.

There are four major types of law:

1. Constitutional Law

2. Statute Law (parliament-made law)

3. Common Law (court-made law)

4. Delegated Legislation

Explain why constitutional law is also called ‘superior’ or ‘fundamental’ law.

Constitutional law is also called ‘superior’ or ‘fundamental’ law because it is the supreme

authority in the country. The Constitution is superior to both the Parliament and the

Executive government. In fact, it is the Constitution that creates the Parliament and

Executive, by outlining the processes through which they are formed. Another proof of the

superiority of constitutional law is that it cannot be changed the way other laws are changed,

simply by both houses of parliament agreeing to change it. The way that constitutional law is

changed is through a direct democratic referendum, in which all qualified citizens are asked

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to vote, and if a double majority of them agree to the change to the Constitution, only then

can it be changed. Referendums rarely ever pass.

Outline three purposes of constitutional law.

Constitutional law serves many purposes and roles. One of these is to define the processes

through which the three branches of government are to be formed, by explaining how to form

the courts (judicial branch), the parliament (legislative branch), and the government (the

executive branch). Another purpose is that it establishes the geographical and legal

jurisdiction of power, by dividing power as either exclusive, concurrent, or not mentioning it,

making it residual. Additionally, it protects fundamental rights of the citizens, like the right to

vote, and also outlines the process for constitutional change through referendums.

What is a statute law and why statutes are superior to common laws.

The term ‘statute law’ is used to refer to laws that are created in parliament. These laws are

first introduced as bills, usually by the government itself, and for the bill to become an official

statute law, an Act, it must pass through both houses of parliament. Statute law serves to

achiever particular legislative aims. These are to implement policy proposed by the

executive, authorise spending by the executive branch, amend existing statute, and repeal

existing statute. This type of law is superior to common law, that is, law created in court

through a court decision, in various ways and for various reasons. It is superior because if

there is ever a contradiction or conflict between statute law and common law, statute law is

superior and comes first. The Parliament is always watching court decisions closely, and can

react in various ways to important court-made common laws. If they disapprove of the

common law, they can react by abrogating (overriding) it, clarifying court’s interpretations of

statute law, or defining judicial freedom or discretion in the post-trial phase of court cases. If

they approve of it, they can respond by codifying (reinforcing) judge-made law by elevating

common law to the status of a statute.

Explain the four functions of parliament in relation to law making.

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A parliament is a legislature which has numerous functions. Primarily, parliament’s role

within the principle of separation of powers is to create law, but even this law-making role is

influenced by and enables its other roles. The functions of parliament are:

- Law-making role: Through the proposal of financial and non-financial bills the

parliament can debate and pass laws or reject bills using the law-making process

- Representative role: Through the election of members of parliament (MPs), this

ensures that laws reflect the popular will expressed through citizen’s political

participation via voting

- Debate role: Parliamentary debate contributes to law-making through ensuring a

wide range of opinions and ideas are contested. Debate in the legislative process

exposes laws to scrutiny

- Responsibility role: Through the forming of the executive and by holding it

accountable, the parliament ensures majority rule. Well over 90% of bills proposed in

the Commonwealth Parliament are introduced by the government

Outline the significance of section 57 of the Commonwealth Constitution.

Section 57 of the Australian Constitution provides a solution for the Prime Minister for the

case in which there is a deadlock between the House of Representatives and the Senate. It

states that if a bill is proposed by the House of Representatives, and the Senate fails to pass

that bill or tries to pass it with amendments that the House of Representatives wouldn’t

agree with, then the Prime Minister can call for what is known as a ‘double dissolution’. A

double dissolution is when the Prime Minister calls to ‘dissolve’ both houses of parliament,

and there must be a reelection of all MPs. This can only be done as a result of bills

originating from the House of Representatives, not the Senate.

Explain with examples how the government uses statutes to implement policies proposed by

the executives.

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As mentioned earlier, one of the central purposes for which Parliament creates statute law is

to implement the policies proposed by the executive. Governments always have agendas

and changes that they wish to make, but often, governments need to convince the

parliament to pass laws enabling their agendas, promises, or ideologies. This is also

important when governments want to implement policies that contradict laws. The rule of law

does not let the government act unlawfully, so they must first convince the parliament to

change those laws. Government-proposed bills almost always pass through the House of

Representatives, because in it they are the majority and have dominance, but their bills

come into scrutiny more in the Senate. An example of Parliament creating statute laws to

implement government policies is when in 2010, the Gillard government convinced the

parliament to pass new lwas enable the National Disability Insurance Scheme. The same

Gillard Government was later less successful in convincing the parliament to change the

Migration Act 1958 to implement its Malaysian solution – a policy to transfer asylum seekers

to Malaysia. After the High Court ruled the policy unlawful under the existing law, the

government sought to change the act but was not able to. An additional example is from

2018, when the Coalition promised to reduce the tax paid by companies and corporations by

approximately $65 billion over 10 years. To do this the re- elected Turnbull Government

needed to convince the parliament to amend taxation laws.

Explain with examples how the government uses statutes to authorise expenditure by the

executives.

Authorising, but first scrutinising, government spending is major part of the Parliament’s role.

Governing requires spending public money and government departments have budgets.

Public servants have to employed and paid, and government services like pensions,

healthcare and education cost large sums of taxpayer’s money. The defence forces are also

extremely costly. Section 53 of the Constitution says, “No money shall be drawn from the

Treasury of the Commonwealth except under appropriation made by law.” This means that

any money spent by government must be approved by passing laws through the parliament.

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This is another example of a limit to power and the rule of law. Governments cannot access

taxpayer’s money unless the law permits. CAN’T FIND EXAMPLES. ASK PEOPLE TO GIVE

EXAMPLES FROM THE BOOK.

Outline the significance of section 53 of the Commonwealth Constitution regarding money

bills.

To authorise taxes and spending by the executive government, parliament must pass a

special type of bill, called an appropriation bill or a money bill, and it must be passed by both

houses. Section 53 of the Constitution is important because it says, “Proposed laws

appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate.”

Section 53 means that money bills can only be initiated in the House of Representatives –

the house of government. Section 53 also says, “The Senate may not amend proposed laws

imposing taxation.. appropriating revenue or moneys for the ordinary annual serves of the

Government.” Additionally, it states, “The Senate may not amend any proposed law to

increase any proposed change or burden on the people”. Therefore, the Senate is prohibited

by constitutional law from introducing money bills or even amending them once they have

passed the lower house. This is because raising taxes and spending public money is so

important that the lower house, as the house of government, is considered the only

appropriate place for taxing and spending laws to originate.

Explain the impact that the Senate has on passing money bills.

The Senate’s prohibition on introducing or amending money bills does not mean it has no

role in the passage of these bills. Recall that all bills – including money bills – must pass

both houses. - Section 53 does empower the Senate to “at any stage return to the House of

Representatives any proposed law which the Senate may not amend, requesting, by

message, the omission or amendment of any items or provisions.” Obviously, the Senate

could also block these bills by refusing to vote on them or rejecting them. - Before passing

money bills, the Senate debates them, may send them to Senate Estimate Committees for

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further inquiry and votes on them in the same way it does for all other types of bills. It is one

of the ways the Senate checks and balances the House of Representatives and contributes

to parliamentary scrutiny of the executive. - Senate Estimates Committees are powerful

agents of executive accountability. Explain the term ‘amending statute laws’ and use an

example to support your answer.

To amend a law means to change it or alter it. Sometimes law get outdated, or no longer

fully reflect community values. In such a situation, the Parliament doesn’t necessarily just

remove the law all together, but instead, can amend it. A recent example of how laws can

come to change is the Commonwealth Marriage Act 1961. Social values regarding

homosexuality have changed fundamentally over several decades. Just until the late 20 th

century, it crimalised in all state. Community values evolved rapidly to the point at which

most Australian were in favour of changing the Marriage Act. Eventually a voluntary postal

survey was conducted which asked qualified electors to express their opinion on this issue.

12.7 million out of 16 million citizens supported this change to amend the Marriage Act.

Shortly after the results of the survey were published. Shortly after the result of the survey

were published, the parliament amended the Marriage Act to allow for same-sex marriage,

with parliamentarians in both major political parties and some minor parties exercising a

conscience vote.

Explain repealing laws using examples from your studies.

Sometimes the Parliament doesn’t just want to amend a law, but to repeal it, that is, to

remove the law altogether. An example of this is when the Abbott Government came to

power in 2013, and acted quickjly to fulfil its key election promise to repeal the Carbon Tax

introduced by the previous parliament under the Gillard Government. Bills to repeal the

Carbon Tax were introduced into the House of Representatives and eventually passed

through the Senate. After receiving Royal Assent, these bills abolished the Carbon Tax.

Another example is the Gillard Government’s Mineral Resource Rent Tax – first introduced

as the Resource Super Profit Tax by the Rudd Government – which was also repealed

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within a year of the Abbott Government winning office. The Abbott Government also

introduced an annual cycle of repealing old laws that no longer served their purpose or put a

drag on economic activity by forcing businesses to carry out meaningless activities in order

to comply with outdated law. These special days were called ‘Red Tape Repeal Days’ and

saw blocks of outdated laws abolished at the stroke of a pen by amending Acts.

Explain the term ‘abrogating’ and provide examples of how it is used by the Australian

Parliament.

Parliament is superior to the courts. If a court decision creates a common law that the

Parliament does not approve of, they have the ability to abrogate that law, by overriding it

and making their own statute law. An example is the Western Australian Criminal Code

Compilation Act 1913. Before this Act was passed most of Western Australia’s criminal law

was composed of common law decisions by courts over many years. Western Australian

criminal law was case law until parliament overrode and codified it with a statute. - In recent

years, the Western Australian Parliament has capped the amounts of damages courts may

award in negligence cases. Before this, courts had set the amounts themselves based on

previous court decisions and the judge’s discretion. Damages had become very high in

some cases. Some businesses were forced to close because of high insurance premiums

caused by increasing legal risk. Parliament responded to community concern and overrode

the court’s ability to set the amount of damages. Damages are now governed by statutory

limits that judges must follow – the rule of law requires them to do so.

Provide one example in relation to parliament’s codifying legislations.

Occasionally, a court decision will create new common law or discover rights that the

parliament wishes to support, reinforce, or to clarify. The best historical example of this is

Mabo v Queensland (No.2) 1992. In this case, the High Court of Australia made a decision

with profound implications for the law across the whole of Australia. Eddie Mabo, an

indigenous man from Mer Island in the Torres Strait, fought against the Queensland

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Government over the status of his island home. He argued that he and his people had

inhabited the Murray Islands since ancient times and ‘owned’ the island. The Queensland

Parliament had declared the islands to be the property of the Crown (meaning government-

owned), based on the legal principle of terra nullius, ‘land belonging to no one’. The High

Court found in favour of Eddie Mabo. The decision abolished terra nullius as a legal principle

throughout the whole of Australia, replacing it with common law ‘native title’. The parliament

regarded Mabo favourably. The High Court recognized and righted a historical wrong

committed against Australia’s indigenous inhabitants. The Commonwealth Parliament

passed the Native Title Act 1993 to support and clarify the High Court’s Mabo decision.

What is meant by delegated legislation?

Delegated legislation is the fourth type of law in Australia. It is when the Parliament – the

delegating authority – delegates, or gives the power to make laws to a subordinate authority,

like a government official or a government department. This can be done for various

reasons, like efficiency, saving time, and responsiveness to emergency situations. Law that

is created by those subordinate authorities is known as delegated legislation.

What is meant by subordinate authority.

‘Subordinate’ means under the control or authority of another. Subordinate authorities include:

- Government departments, such as the Department of Home Affairs

- Specialist agencies, such as security and intelligence services. The Australia Security

and Intelligence Organisation (ASIO) is an example.

- Statutory authorities, such as the Reserve Bank of Australia and the Australian Electoral

Commission

- Executive officials, such as senior public servants with decision-making power, such as

Greg Moriarty who is the Secretary of the Department of Defence

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 - Ministers, who are members of parliament appointed by the government to lead a

government department. Ministers are responsible, therefore subordinate to the

parliament. For example, Christopher Pyne, the current Minister of Defence, has a

leadership role with the Department of Defence, and is thus subordinate to parliament.

Explain why law-making power is delegated?

There are two major reasons that law-making power is delegated: Efficiency and

Responsiveness to Emergencies. Some law-making is unimportant and does not need the

high levels of deliberation that parliament provides through the legislative process. In this

case, it would be much more efficient to delegate this power to a subordinate authority. For

example, every year welfare payments are adjusted. Parliament delegates the power to

change rates of welfare to a government department (centrelink). This saves parliament time

for more pressing matters. Deliberative law making by parliament may sometimes be too

slow to respond to emergency situations. By delegating powers to a subordinate authority,

and imposing and monitoring strict conditions on their use, parliament can ensure that

Australia can respond quickly to changing circumstances or emergency situations. For

example, ASIO has wide powers of surveillance and the power to conduct searches and

arrests without legal permission in response to emerging terrorist threats. This comes from

the Australian Security Intelligence Organisation Act 1979 (the ASIO Act).

Explain how law-making power is delegated to subordinate authorities?

Parliaments delegates law-making power to subordinate authorities through Acts of

Parliament. An Act delegating law-making power to a subordinate authority must include a

couple things for it to pass. It must nominate the subordinate authority, such as a

government department or a specific official within the executive, it must define the purpose

of the delegated law-making power, it must specify the extent of the law-making power, thus

limiting the power, and must define the circumstances in which the power can be used,

further limiting the power.