LAW1LIM Lecture Notes - Lecture 2: Primary And Secondary Legislation, Statutory Law, Legislature
LIM Lecture 2 – Overview of the Legal System
Federal and State legislative powers
The legislative powers given to the commonwealth parliament are enumerated i.e. They are
limited to those expressly listed in s 51 constitution 1901
E.g. Marriage
The legislative powers given to the states parliaments are residual i.e. they may include
matter not expressly falling under the commonwealth powers. E.g. De facto child custody
and property disputes (until most States and Territories referred power to the
Commonwealth)
Some powers of the commonwealth parliament are exclusive i.e. they can only be exercised
by the commonwealth (s52) most are concurrent i.e. States can also pass laws on these
federal matters
However, where state laws and federal laws conflict, the federal law prevails (s109)
Separation of Powers
Power is shared by separate institutions independent from one another
Legislative power – Parliament creates the laws
Executive power – Government administers the laws
Judicial power – Courts interpret the law
Legal Institutions and Sources of Law
Parliament – Legislation: Statutes, acts, codes
Executive – Delegated Legislation: e.g. Regulations, Rules, ordinances, proclamations,
determination, by-laws, statutory instruments
Courts – Common law: Case law, Judge made law, includes equity
Meanings of common law:
Common law v Statutory law
Common law v Civil law
Common law v Equity
Types of Law
1. Legislation – Has become the most common source of law – this is a reflection of
parliamentary sovereignty
2. Delegated legislation -Adopted by a person or body other than parliament, most commonly
by the executive. The power is delegated by parliament through a parent statute (enabling
act) to be valid, delegated legislation must be consistent with the enabling act.
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Document Summary
Lim lecture 2 overview of the legal system. The legislative powers given to the commonwealth parliament are enumerated i. e. they are limited to those expressly listed in s 51 constitution 1901. The legislative powers given to the states parliaments are residual i. e. they may include matter not expressly falling under the commonwealth powers. De facto child custody and property disputes (until most states and territories referred power to the. Some powers of the commonwealth parliament are exclusive i. e. they can only be exercised by the commonwealth (s52) most are concurrent i. e. states can also pass laws on these federal matters. However, where state laws and federal laws conflict, the federal law prevails (s109) Power is shared by separate institutions independent from one another. Executive delegated legislation: e. g. regulations, rules, ordinances, proclamations, determination, by-laws, statutory instruments. Courts common law: case law, judge made law, includes equity.
