Week 3 – Legislation and Case Law
This week was an easier week as far as prescribed reading – only one chapter this week! However, I think this only a reprieve so that we have more time to work on the assignment! It is also the end of the first part of the textbook on ‘knowing’ the legal system. This week focused on two main areas – that of legislation and case law.
Outliers on these two issues, but still highly relevant, were the sovereignty of Parliament (which basically says Parliament holds the ultimate power – as defined by the Constitution) and the doctrine of precedent and why it is important. As part of learning more about the doctrine of precedent, it was good to finally see some arguments as to the advantages and disadvantage of this system – with one of the disadvantages being how hard it is to find relevant precedent to use in making another ruling! However, benefits such as the certainty, equality and consistency that the doctrine of precedent brings with it far outweigh its disadvantages.
For legislation, we needed to know about the parliamentary system that actually proposes, debates ad passes legislation. Different states and territories have different systems – but all have common elements due to a historical basis on the Westminster system. Most states and the federal parliaments have two houses of parliament (referred to as a bicameral system) whereas my home state (Queensland) and the Territories have only one house of parliament (unicameral system). The both the bicameral and unicameral systems have their advantages and disadvantages, but my personal view is that the bicameral system is more representative of the views, values and options of the general public, and ensures that all legislation is properly analysed before enacted. Bills have a specific format, and pass through the house in a very specific and lockstep manner, and if all the checks and balances are satisfied, the bill is passed by both houses of parliament, and then becomes an Act of Parliament upon assent by the Crown representative (Governor General in the instance of Federal legislation).
Whilst legislation is created and amended by parliament, case law is made by the judiciary through their interpretation of legislation and how it applies to a given circumstance. Whilst most areas of law are primarily legislation, there are still some areas, such as contract law, where the primary law is case law. And whilst legislation may exist that is applicable to a specific case, it is the role of the judiciary to determine that, and what the appropriate outcome should be. To make this system feasible, there is a tiered court system – both at federal and state levels. The severity (and financial limit) of the case will determine which court the issue will go to. And if the outcome is not to the desired outcome of the parties concerned, they can usually request an appeal, where the case may got to a court of the same level or higher court. I was surprised to find out how many courts and tribunals there were, and just like with our separation of powers – or overlap of power in the case of parliament and executive government – there is an overlap in the judicial hierarchy – in that the high court of Australia is the highest court of appeal for both the federal and state jurisdictions!