Statute and Common Law
What is statute law?
Statute law is legislation that has been passed through Parliament. The terms 'statute' and 'legislation' may be used interchangeably.
Both State Parliament and Federal Parliament have the power to pass laws within their jurisdiction (area of influence). Each State looks after aspects of government such as roads, transport, hospitals and education, which is why laws for these areas differ from State to State. The rules to obtain a driver's licence, such as the age a driver can obtain the licence and the length of the provisional licence period vary in different States, for example.
Statutes passed by Federal Parliament apply to all of Australia. Federal Parliament deals with issues such as defence, national health (Medicare), immigration and trade.
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Creating statute law
Here is a brief overview of the process of legislation in Federal Parliament:
An issue is brought before Parliament. If Parliament decides to take on the issue, they draft a Bill, which is a proposal for a law or a proposal to amend an existing law.
First Reading. The member who wishes to propose the new law or legislative amendment introduces the Bill to the House. Only the title of the Bill is read at the first reading, and copies are distributed for Members of Parliament to read.
Second Reading. In the second reading, the member who introduced the Bill explains the purpose of, and reasoning for, the proposed law. At this stage, members of the House may ask for further explanation as to the effect of the Bill, its costs and the administrative arrangements for the proposed law. Amendments to the Bill can also be proposed at this stage, in which case the House can choose to go into a 'committee stage', where the details of the Bill are debated. The members then vote on the Bill and, if it is passed, it proceeds to the third reading.
Third Reading. During the third reading, the House is asked to vote on the Bill. Once the Bill is passed by the House in which it was introduced, it moves to the Senate for consideration. Any amendments that have been made appear in the new version of the Bill.
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In the Senate, the Bill goes through the three reading stages again. If the Bill originates in the lower house and is amended by the upper house, the amendments then must be sent back to the House of Representative for consideration. If the lower house does not agree with the amendments then the Bill can be referred back to the upper house, where the amendments can be reconsidered.
Once the Bill has been passed by both houses, it is presented to the Governor-General. It is the responsibility of the Governor-General to 'assent' to the new law, which means giving it the Queen's seal of approval. Once a Bill has been sent to the Governor, it is usually a formality that it is approved. The Bill becomes law on the date of the Governor-General's assent unless it has a specific clause stating it will only become operative on a specified date. Once it is law, what was once a Bill is referred to as an Act or a statute.
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A similar thing happens in State Parliament, but the relationship between the upper and lowers houses may differ. Queensland has a lower house in the form of a Legislative Assembly but there is no upper house (Senate) so all readings occur in the lower house only.
What is common law?
When an issue goes to court and there is no statute that covers it, a judge will hear the case and issue a verdict. The record of this verdict becomes a precedent so that when similar cases arise, other judges may take into account the penalty previously issued. Previous judgements therefore form the basis for common law.
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Precedents can only be set by superior courts: the Supreme Court in each State, the High Court of Australia and the Federal Court. Once a precedent has been set, all the lower courts must follow it, thus a precedent may change if a higher court overturns it. Take, for example, a verdict issued by the Supreme Court of Queensland, which sets a precedent. The Magistrates Courts and the District Courts in Queensland must follow the decision. If, however, one party appealed and the decision went to the High Court of Australia, which issued a different verdict, the result from the High Court would become the precedent.
Common law precedents may also arise from interpretation of statute law. The wording of the statute may be ambiguous or vague with regard to the specific context of a case, so the judgement would reference the statute but expand the law to encompass aspects of the case previously excluded.
De facto partnerships, for example, are recognised under the Property Law Amendment Act 1999 (Qld) (the 'Act'). The amendment of this legislation occurred because de facto relationships did not have any standing in the Family Court, which only deals with marriage, but cases arose where de facto couples would dispute ownership of property. The Act gave de facto couples who lived together 'on a genuine domestic basis in a relationship based on intimacy, trust and personal commitment to each other' virtually the same property rights as married couples.
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Common law may eventually become statute law. If Parliament recognises the value of turning a common law precedent into statutory legislation, then they will pass a Bill based on the common law verdict in a process called codification.