CLAW1001 Lecture Notes - Lecture 2: Curia Regis, Ultra Vires, Parliamentary Sovereignty
16 May 2018
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2| Parliament and Legislation
• Legislation is the formal declaration of legal rules by Parliament and people or bodies
authorised by Parliament. It dominates our commercial and social lives and courts are
increasingly devoted to statutory interpretation
• Courts cannot repeal or create legislation, or create a new set of rules to cover a broad range
of activities. This would infringe on both parliamentary sovereignty and the separation of
powers. Further, legislation is an aspect of democracy since the parliament is in charge
• Ultra vires: beyond one’s legal power or authority
Roots of Parliament
• Australian legal and political institutions does not find roots in the natives and indigenous
peoples customs and traditions but rather in those of the colonial powers settled in 1788
• 1066: Conquest of English by William, the Duke of Normandy was a key turning point in
legal history, ramifying in disputes and motions that led Australia to follow the distinctive
legal features of British colonies
• Pre-conquest laws: Anglo-Saxon customary rules lacked commonality, based on local
custom. Since England had been invaded many times, the kingdom was separated into
localities with differing customs that lacked unified governing laws, norms and rules
• Norman conquerors introduced feudalism. This chain created the underlying premise of a
mutual promise – loyalty of subjects to king, and kings would protect tenants in times of need
• Feudal system allowed commonality and control of all the country; demise of local laws
• One of the consequences of settlement in 1788, so much the law of English becomes the law
of the new colony of NSW. We got the benefits of hundreds of years of constitutional
development in England
Formalisation of legal structures
• Since people always sought the King’s intercession in a dispute by approaching him in
person, this became very inconvenient so the Curia Regis and justiciars became significant in
acting in his absence
• England was divided into a number of regions tat allowd the Justices in Eyre (travelling
justices) to hear and resolve disputes in certain parts of the country
• Curia Regis became divided into special bodies, made up of professional judges, formed a
new body called the Court of Common Pleas
• Body of financial advisors for royal revenue- Court of Exchequer – the British Treasurer
today is known as the Chancellor of the Exchequer
• Group of advisors travelling with King divided into two groups – those that advised on
resolutions of individual disputes (Coram Rege) and those advising on general policies
(Council)
Foundations of modern constitutionalism:
• 1215 Magna Carta – first real step in forming the modern constitution
• 1295 The Model Parliament was established, including nobles, representatives of the clergy,
representatives of the commoners, two knights from each shire and two representatives from
each city – antecedent of modern parliament
• Parliament remained an advisory body until 1414 that the King Henry V formally
acknowledged that there were to be no new statutes without the assent of the Commons
• Gradual evolution of Westminster model
find more resources at oneclass.com
find more resources at oneclass.com
The Federal Parliament (passage of legislation goes through these three elements)
• Lower house: House of Representatives:
'People's house'
Australia divided into electorates with roughly equal numbers of voters, each of which
elects a representative
Guarantee minimum of 5 members in each of original six states regardless of
population (protects smaller states)
‘Where government are made and unmade’
Vital role in supplying members of Executive
In a Westminster system the leader of the party with the majority of members in the
lower house leads government and the ministers form Federal Executive Council
Generally party with majority controls enactment of legislation… bills introduced are
unlikely to be defeated since the party system ensures that members vote on party lines
• Upper house: The Senate
Described as the symbol of union and equality of the States – ‘states house’
Protects rights of states by having an equal number of senator represnetatives from each
state (12) in order to protect interests of less populous states
Territories represented with senators (2) since 1975
House of review – safeguard against hasty and ill-considered legislation → a bill must
pass through both houses of parliament before being able to be given assent by GG
Has comprehensive committee sytem to carry out function of review
• The Governor General (The Crown’s representative):
Role has reduced in significant since GG acts on advice of responsible ministers
The legislative process
1. The original idea
2. Drafting of a Bill
3. Parliamentary process
4. Royal Assent
5. Commencement
• The original idea for legislative change can come from:
Government party policy
A law reform body
A criticism of legislation in a judgement
Reality is that the political process means government controls the Parliament’s agenda
and unless the proposal is adopted by the government it is unlikely to have an
opportunity to proceed through the legislative process
Cabinet must agree that it is an urgent/important matter and that they have enough
resources
• Drafting of a Bill: original idea becomes a draft legislation known as a Bill
• The Parliamentary process - must pass through three elements of Parliament
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
2| parliament and legislation: legislation is the formal declaration of legal rules by parliament and people or bodies authorised by parliament. It dominates our commercial and social lives and courts are increasingly devoted to statutory interpretation: courts cannot repeal or create legislation, or create a new set of rules to cover a broad range of activities. This would infringe on both parliamentary sovereignty and the separation of powers. Further, legislation is an aspect of democracy since the parliament is in charge: ultra vires: beyond one"s legal power or authority. Since england had been invaded many times, the kingdom was separated into localities with differing customs that lacked unified governing laws, norms and rules: norman conquerors introduced feudalism. We got the benefits of hundreds of years of constitutional development in england. The federal parliament (passage of legislation goes through these three elements: lower house: house of representatives:
