Law in Australian Society: An introduction to principles and process
336
Law in Australian Society: An introduction to principles and process
336Paperback
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Overview
Designed for beginners as well as non-law students this text provides a comprehensive and accessible guide to understanding Australia's system of law and government. Dr Keiran Hardy describes how legislation is made, the nature of case law, the hierarchy of courts and the doctrine of precedent. He looks at the role played by politics and the media in shaping law, and he describes founding principles including democracy, liberalism, the separation of powers and federalism. The criminal justice system is explained including criminal offences, police powers, sentencing and punishment, and there is a special emphasis on Indigenous peoples and the law. The book concludes with case studies of cybercrime and counterterrorism legislation to illustrate law reform in action. Each chapter features practical examples, chapter summaries and review questions together with a glossary of key terms.
Concise, accessible and up-to-the-minute, this is a vital guide for anyone seeking to understand the complexity of Australian law and government.
'This is an excellent book for a wide audience . . . equally useful for law students, legal studies students in high school and anyone seeking an understanding of how and why the law is as it is. And how things might be improved.' - Nicholas Cowdery, AM, QC, former Director of Public Prosecutions, NSW
'A wonderful text . . . The overall structure and the inclusion of comprehension questions, glossaries and a curated reference list ensure that students can build on their understanding over the course of the book.' - Jackie Charles, Rule of Law Institute of Australia
'This introduction to Australian law is comprehensive, contemporary and accessible. It is a perfect primer for new students requiring a broad understanding of Australia's legal system. From cybercrime to the workings of Australia's parliament, this book has it all.' - George Williams, AO, Dean, Anthony Mason Professor, Scientia Professor, University of New South Wales
'Law in Australian Society' is an ideal text for first year students in criminology, legal studies, policing and related fields. Its easy-to-read format aids students in understanding the complexities and subtleties of the Australian legal system.' - Emma Colvin, Centre for Law and Justice, Charles Sturt University
Product Details
| ISBN-13: | 9781760527037 |
|---|---|
| Publisher: | Taylor & Francis |
| Publication date: | 07/01/2019 |
| Pages: | 336 |
| Product dimensions: | 6.12(w) x 9.19(h) x (d) |
About the Author
Read an Excerpt
CHAPTER 1
Legislation
In this chapter you will learn about:
The first major source of law in Australia: legislation
Where to find legislation and how to read it
The meaning and importance of 'jurisdiction'
Regulations, also known as secondary or delegated legislation
There are two major sources of law in Australia: legislation and case law. These are the places we find the rules that make up the law. This chapter explains the first of these sources: you will learn what legislation is, where to find it and how to read it. An important concept is jurisdiction, meaning the geographical area in which legislation operates.
Jurisdiction the area in which laws operate
I. WHAT IS LEGISLATION?
Legislation is a document containing rules that have been debated, voted on and approved by a parliament, which means those rules are part of the law of Australia. Parliaments are forums made up of members and senators — the politicians we vote in at election time to make rules on our behalf. This parliamentary system is the defining feature of our democracy (for more on democracy, see Chapter 4).
There is a federal parliament in Canberra and a parliament in each state and territory. We refer to the parliament in Canberra as the 'federal parliament', but it is actually the division of powers between this central parliament and several state parliaments that is known as a federal system of government (for more on federalism, see Chapter 4). We also refer to the federal parliament as the Commonwealth Parliament because it represents the joining together ('common wealth') of the different states into the single country known as Australia.
The major workload of Australian parliaments is to debate and approve legislation. Legislation can create new rules, change existing rules or remove rules that should no longer apply. Changing an existing rule is known as amending the law. Removing or revoking a rule is known as repealing a law.
Parliament forums made up of elected politicians
Members politicians elected to the House of Representatives
Senators politicians elected to the Senate
Federal parliament the Australian parliament in Canberra
Federal system a system of government that has a national government and several state or regional governments
Commonwealth Parliament the Australian parliament in Canberra
Amend to change a law
Repeal to remove or revoke a law
Act/statute a piece of legislation
Enact to make a Bill into law
A piece of legislation approved by a parliament is also known as an Act or statute. When legislation is approved by a parliament and becomes part of the law of Australia, we say it was enacted.
For practical purposes, legislation is a document that tells us what the rules are on a certain topic. Each piece of legislation is named by a title, the year it was enacted and the parliament that enacted it. The parliament that enacted the legislation tells us the jurisdiction; this is the geographical area in which the rules operate. Rules enacted by the federal parliament in Canberra apply all over Australia, whereas rules enacted by a state or territory parliament apply only in that state or territory (otherwise, Queensland could make rules for New South Wales, and vice versa!).
For example, the legislation that sets out the criminal law of New South Wales is known as the:
[ILLUSTRATION OMITTED]
Legislation sets out rules in numbered sections. These sections are divided into subsections, sub-subsections and so on (this is partly why laws are so difficult to read). Subsections are indicated with brackets, numbers, small letters and (if the section is long enough) small roman numerals. For example, section 18 of the Crimes Act 1900 in New South Wales creates the crimes of murder and manslaughter:
Section a rule in legislation
18 Murder and Manslaughter Defined
(1)
(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.
(b) Every other punishable homicide shall be taken to be manslaughter.
Section 18 has a short title that tells us that this section defines the crimes of murder and manslaughter. Subsection (1)(a) tells us when a person commits the crime of murder. Subsection (1)(b) tells us that an unlawful death ('homicide') that does not quality as murder will instead be classified as manslaughter (an unintended or negligent death still worthy of criminal punishment). The maximum penalties for committing murder (life imprisonment) or manslaughter (25 years imprisonment) are set out in different sections of the legislation (sections 19A and 24).
II. HOW IS LEGISLATION MADE?
The section above is one small example of the thousands of laws that have been enacted by Australian parliaments. In 2018 alone, the federal parliament passed 170 pieces of legislation, each including many specific rules. This is not to mention the additional workload of the state and territory parliaments.
Bill a proposal for legislation
For legislation to be enacted, there is a specific process the document must go through. Legislation starts off as a Bill, which is essentially a draft version of the final document. A Bill is a proposal for a new law to be considered and possibly approved by a parliament. Bills are prepared by specially trained lawyers on advice from members of the government and government agencies.
The first step is for the Bill to be introduced into parliament, meaning that it is formally submitted for consideration. Bills can be introduced into the parliament by any member of parliament, though they are usually introduced by the government. The government is the political party that won the majority of seats at the last election (for more on political parties and elections, see Chapter 3).
House one of the chambers in a parliament
Chamber a large room where legislation is debated
Bicameral a parliament with two houses
House of Representatives lower house of the federal parliament
Lower house another name for the federal House of Representatives
Senate the upper house of the federal parliament
Upper house another name for the federal Senate
Most Australian parliaments have two houses. These are rooms, also known as chambers, where members of parliament meet to debate legislation. A parliament with two houses is known as a bicameral parliament (meaning 'two chambers'). In a bicameral parliament, both houses debate and approve the same legislation according to the procedure explained below. The two houses of the federal parliament are the House of Representatives (also known as the lower house) and the Senate (also known as the upper house).
All Australian states except Queensland also have bicameral legislatures. The state houses of parliament are usually called the Legislative Assembly (lower house) and the Legislative Council (upper house). Members of a Legislative Council are just called members (not senators, as at the federal level). Queensland, the Northern Territory and the Australian Capital Territory have unicameral legislatures, meaning there is only one chamber that debates and approves legislation.
Unicameral a parliament with only one chamber
A. Process for approving Bills
The reason we refer to a 'lower' and 'upper' house has to do with the process for approving Bills in parliament. For a Bill to be approved and become law, it must go through three readings in each house of parliament. (In a unicameral legislature, the Bill need only be approved by one house.) Readings are simply the stages of parliamentary debate on the Bill. Each reading is concluded with a vote, and the Bill will only progress to the next stage if a majority of members vote 'yes'. These debates are supervised by the Speaker, a member of parliament who is chosen to preside over proceedings and ensure that debate is conducted according to the rules of parliament (known as standing orders). The Speaker does not vote on a Bill unless there is a tie, in which case the Speaker has the deciding vote.
Reading stage of parliamentary debate on a Bill
The first reading is typically a formality where the members of parliament agree to consider the Bill in more detail. More substantial debate happens at the second and third readings. This is where members of parliament debate the sections of the legislation in detail and suggest changes to the rules being proposed.
Speaker a member of parliament who is chosen to preside over proceedings and ensure that debate is conducted according to the standing orders
Standing orders the procedural rules of parliament
Minister senior member of government
Second reading speech Minister's speech in parliament which outlines the purpose of a Bill and what it contains
Governor-General the Queen's representative in Australia
Royal assent when the Governor-General signs a Bill so it becomes law
Head of state the highest representative of a sovereign state
Bills are usually introduced by senior members of government known as ministers (for more on ministers, see Chapter 3). At the start of the second reading, the relevant minister makes a speech to explain the purpose of the Bill and what it contains. This is called a second reading speech. Second reading speeches are an important part of the parliamentary record and a useful resource for legal research.
Typically, a Bill is introduced into the lower house. After three readings in the lower house, the Bill is 'passed up' to the upper house. After three readings in the upper house, it will become law.
For a Bill to become an official 'Act of Parliament' and part of Australian law, it must be signed by the Governor-General. This is called granting the Bill royal assent. The Governor-General is the Queen's representative in Australia. The Queen is our head of state, so all legislation must technically be approved by her. Nowadays this is simply a formality, although it remains an important final stage in the lawmaking process.
The entire process for debating and enacting a Bill in parliament can be seen in Figure 1.2. This example refers to the federal House of Representatives and Senate.
B. Committee stage
Another important part of this process is the committee stage. Between the second and third readings, a Bill can be referred to a parliamentary committee for more detailed consideration. A parliamentary committee is a group of members or senators who meet separately to examine the Bill in more detail. Some committees are made up of members only from the lower house, some are made up of members only from the upper house, and joint committees have representatives from both.
Committee stage stage of parliamentary debate when a Bill is referred to a committee for public consultation and more detailed scrutiny
Joint committee a parliamentary committee made up of members from both the House of Representatives and Senate
To begin the committee stage, parliament refers (sends) the Bill to an appropriate committee (committees have experience looking at different types of legislation). The committee will then advertise a public inquiry and call for written submissions. This is an important part of our democracy, as it gives everyone in Australia the opportunity to contribute to the lawmaking process. You can write to the committee and make your own case as to what you think the law should be. This can be in the form of a letter, or it can be a more substantial written report including detailed research. Typically, many submissions to parliamentary committee inquiries come from government agencies, academics, human rights groups and professional organisations (such as those representing the legal profession).
After a committee receives written submissions, it holds public hearings at which some individuals and organisations are invited to give their submissions in person. This is called 'giving evidence' to the committee or 'appearing as a witness' to a public inquiry, although it is not quite like giving evidence in court. Instead, the committee asks the witness what they think the Bill should contain, and the witness is given a chance to answer these questions and elaborate verbally on their written submission. These hearings are transcribed as part of Hansard, the public record of parliament.
The committee considers these written and oral submissions and presents its recommendations on the Bill to the parliament. It does this by tabling a detailed written report. To table a document means to formally submit it into the parliamentary record (the phrase comes from the act of laying a document on the table at the centre of the parliamentary chamber). The written report provides a basis for further debate in parliament. The committee's recommendations may or may not be incorporated into the Bill, which progresses through the remainder of the process.
Hansard the transcript of parliamentary proceedings
Table to formally submit a document into the parliamentary record
III. WHERE CAN I FIND LEGISLATION?
A key component of the rule of law is that laws are meant to be publicly available (for more on the rule of law, see Chapter 4). Fortunately, this means that legislation is relatively easy to find online. In Australia, the two main places you should look for legislation are AustLII and the relevant government websites.
AustLII the Australasian Legal Information Institute, an online database of legislation and case law
AustLII (austlii.edu.au), the Australasian Legal Information Institute, is a comprehensive online database of Australian and New Zealand law that is maintained by academics at the University of New South Wales (UNSW) and the University of Technology Sydney (UTS). AustLII includes legislation from all jurisdictions across Australia, as well as related materials like Bills and explanatory memoranda.
Explanatory memorandum document accompanying a Bill that explains what the Bill contains
An explanatory memorandum is a document accompanying each Bill that explains what the Bill contains. This helps with interpreting Bills, which can be very technical and difficult to read. You can search and browse AustLII by the title or jurisdiction of legislation or the year it was enacted.
The federal, state and territory governments each maintain online databases of legislation and related materials. The federal government website can be found at legislation.gov.au and the state government websites can be found at legislation.qld.gov.au, legislation.nsw.gov.au,legislation.vic.gov.au (and so on).
Technically, these government websites are the 'official' option, but AustLII is still highly authoritative and is arguably easier to navigate. If you need to reference the law for assignments, AustLII is not the equivalent of Wikipedia or other internet resources, which are possibly unreliable and not typically used in an academic setting. It is highly reliable; you should just make sure when you reference legal materials from AustLII (or a government website) that you cite the relevant legislation or case law and not the website you found it on. These websites are more of a gateway for finding the law than a reference for the law itself.
AustLII is particularly helpful if you prefer to browse through a HTML version of legislation, where you can click on and view individual sections. You will also find AustLII easier to copy and paste from if you need to write out legislation in your study notes or for an assignment. The government websites are recommended if you want the most official version, or if you prefer to browse a PDF document that you can save and download to your computer.
Consolidated Acts the current and complete version of legislation
Numbered Acts legislation as enacted by year
When navigating these websites, a few terms will be unfamiliar. Consolidated Acts gives you the current and complete version of legislation, including all changes recently made. Numbered Acts lists legislation enacted by year, including amending legislation that changed the wording of a previous law. Numbered Acts are useful for seeing exactly what changes to the law have been made.
You can also simply search for the title, jurisdiction and year of legislation in Google. For most searches, the AustLII and government websites will appear at the top of the results. Try searching for 'Crimes Act NSW 1900' and you will see that the first result is from AustLII and the second from the NSW government website.
(Continues…)
Excerpted from "Law in Australian Society"
by .
Copyright © 2019 Keiran Hardy.
Excerpted by permission of Allen & Unwin.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
Table of Contents
PART 1: LAW, POLITICS AND THE MEDIAIntroduction: Law in society
Chapter 1: Legislation
Chapter 2: Case law
Chapter 3: Politics and the media
PART 2: RIGHTS, THEORIES AND HISTORY
Chapter 4: Founding principles
Chapter 5: Justice
Chapter 6: Human rights
Chapter 7: Indigenous peoples and the law
PART 3: CRIMINAL JUSTICE
Chapter 8: Criminal offences
Chapter 9: Police powers, bail and the criminal trial
Chapter 10: Punishment, sentencing and appeals
PART 4: CASE STUDIES
Chapter 11: Cybercrime
Chapter 12: Counterterrorism
Acknowledgements
References
Glossary
Index