Business Notes from Bored of Studies

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High Court: Highest court in the judicial system in Australia that was established under section 71 of the constitution. It deals with appeals from federal, supreme and family court and interpretation of constitutional laws.

Parliament

Parliament is a body of elected representatives. It debates proposed legislation, passes or rejects it and amends legislation. All states except for Queensland have a bicameral parliament which means they have two houses. The Senate is the upper house and the House of Reps. is the lower house. Ministers are those who have special responsibilities in each department and are elected by the prime minister who is the leader of the government.

Cabinet: Made up of ministers who make decisions on policies and laws to be drafted for consideration by parliament.

Executive Council: Governor/Governor-general as well as selected minsters make up this body. They enable legislation to be put into operation.

Legislative Process

Passing Legislation: A bill is introduced by a minister who is in charge of the bill’s preparation. Proposed legislation often undergoes many redrafts as well as discussions. It must be approved by both houses before it can be established as a federal law.

Delegated Legislation: It is legislation made by non-parliamentary bodies that deals with laws considered to be of lesser importance. These laws are handled by government departments of local councils. Types include regulations, ordinances, rules and by-laws.

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Division of Powers

The division of powers is set out in the constitution. It outlines the powers of the federal and state government, with some issues falling under both. S51 of the constitution outlines the legislative powers of the federal government including things such as marriage, military matters and external affairs. S52 however sets out the exclusive powers of the fed.gov. Residual powers such as education and transports are the powers of the state. Any powers shared by the fed. and state such as banking and insurance, are known as concurrent powers.

Separation of Powers

Legislative

Executive

Judiciary

Parliament (house of reps and senate) are engaged in making laws

Senior politicians, governor general, cabinet and shadow cabinet administer laws

Courts and judges who enforce laws

High Court + Constitution

The interpretations of the constitution dictate what areas the Cth can legislate on and what areas belong to the states. In addition the high court outlines how each section of the government can exercise its powers and places limits on such powers. Initially the High Court would put forth decisions that would favour the states. But over time a broader approach has led to a shift in the legislative balance between the states and the Cth.

ATSI Customary Law

Diverse nature of customary law:

- Spiritual basis for the law → significance of land and water

- Mediation and Sanctions

- Family and Kinship

- Rituals and Oral Traditions of the Law

ATSI customary law is quite difficult to define due to its diverse and exclusive nature. Each nation has their own set of laws that are in relation to their specific way of life. There are common aspects but aren’t necessarily the same.

Cambridge describes it as ‘Principles and procedures that have developed through general usage according to the customs of a people or nation or groups of nations’.

Common consequences for breaches include:

- Sanctions and punishments: applied for murder and religious violation

- Conciliation: elders of a tribes meet with those involved in conflict and create a suitable resolution through discussion

- Mediation: for minor offences where all members of the conflict discuss and negotiate

ATSI law has been integrated into Australian law through the acknowledgement of native title acts. Native title acts often sit above other laws so that it is always valid.

Domestic and International Law

Domestic

International

.laws within a country that applies to those residing in country

.laws made by government or sovereign

.laws include statues and common law

.applies to nations and ‘transnational jurisdictions’

.laws include treaties and formal agreements

.international customary law relates to accepted norms

Differences

International Law

Domestic Law (aus.)

Application

Treaties apply only to those nations who agree to be bound by them, but international customary law applies to all nations

Applies to all within Australia’s jurisdiction (territorial waters and Australia’s territories)

Enforcement

International courts and tribunals exist, but they are complex and their jurisdiction can be limited by nation-states

Law enforcement agencies and institutions exist such as the police and the courts to enforce the law

Creation

Treaties are made through negotiations between nations. Customary international laws develop over time

Made by parliaments (statute law) or the rulings of judges