Safety & Environmental Health Law 265

Lecture 2 – Australian Legal System &

Regulatory Tools
Introduction

 Readings: Australian Legal System-An Introduction pgs. 1-20 (on Blackboard)

 Three tiers of government in Australia- safety, health & environmental law a

feature of each in various forms

 Key constitutional law principles

 Responsible government- key principle of the Westminster system of

Government

 Government and its Ministers responsible and answerable to Parliament

for its actions and actions of agencies/departments-Answerable to the
public?
Introduction (cont.)

Rule of law

Concept that every person & institution in Australia is subject to the law =
disputes settled on the basis of legal rights & governmental action
controlled by rules preventing arbitrariness

Constitutional government with limited powers exercised by various

governing bodies
Introduction (cont.)

Separation of powers
3 branches of Australian system of government. Established under Commonwealth
Constitution – comes from the principle that no one person or arm of government should have
all the power.

1. Legislature
2. Executive
3. Judiciary

Equality before the law

 No person punishable except for a distinct breach of the law established before a
properly constituted court

 Persons in authority cannot exercise wide, arbitrary or discretionary powers of

constraint unless authorised by Parliament

 Accountability of Executive & Cabinet

Sources of Law

 Common law
 Two meanings:
 Legal principles developed by judges through case law
 Adversarial system of settling legal disputes

 Statutory law (Legislation or Acts of Parliament)

 Often a product of the common law
 Legislation will always prevail over the common law in circumstances of conflict
 Statute Law refers to the body of law contained in the Acts of Parliament. Statute
law is legislation that has been passed through Parliament. It is usual to find the
terms 'statute' and 'legislation' being used interchangeably.
 Types of divisions of law

 Civil Law and Criminal Law

 Woolmington v Director of Public Prosecutions (1935) AC 462 at 481-482.

 Parties, Burden of proof & Standard of proof

 Public Law and Private Law – simple division

 Public law = law expressed in statutes or regulations made by Parliament and applicable to all eg.
criminal law, constitutional and administrative law, environmental, health & safety law

 Private law = wide ranging including contract law, negligence etc = ‘one on one disputes’
Creation of Legislation

 Described and compartmentalised by statutes that shape and define the limits of its practice

 Legislation created:

Bill introduced into Parliament –The bill is then introduced by the appropriate Minister, probably in the Lower
House, in what is known as the First Reading. Title is read in Parliament. Copies distributed to members of
Parliament

At the second reading the bill is debated though the discussion will be directed to the principles of the bill, not
the details. 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.

Finally, the bill, subject to any amendments, is given a Third Reading, If the majority then votes for it, it has
been passed by the House. Any amendments the Bill is sent back to the Lower House for reconsideration

However, the bill still has to go through the same procedures in the Upper House before it can become law.

Once the bill has been passed by both Houses, it is ready to receive the royal assent. When this is given, the
bill becomes a statute.
Main Parts of an Act

 Number: indicates the order of the Act in the year in which it was passed.
 Long title: sets out in general terms the purpose of the Act.
 Date of assent or commencement date: indicates the date on which the Act formally
completed its passage through the Parliament.
 Enacting words: a formal statement by parliament that it is exercising its law-making power in
passing the Act.
 Short title: indicates how the Act is to be cited in all documents.
 Objects: lists the principal objects of the Act and the intentions of Parliament as to how policy
is to be carried out.
 Interpretation and definitions: sets out the meanings of certain words and expressions as they
are to be understood in the Act.
 Sections: The individual provisions of an Act are called sections. Then come subsections,
paragraphs and sub paragraphs.
 Schedules: Certain items are more conveniently set out in a list at 8the end of an Act. This is
done in the form of a schedule.
Legislation (cont)

 Safety Legislation by Industry

 Aviation
 Civil Aviation Act 1988 (Cth)
 Mines
 Mines Safety and Inspection Act 1994 (WA)
 Railway
 Rail Safety Act 2010 (WA)
 Workplaces
 Occupational Safety and Health Act 1984 (WA)
Section 109 of the Constitution

Section 109 of the Commonwealth of Australia Constitution Act 1900 (UK)

(The Constitution), states that when a law of a State is inconsistent with a law of
the Commonwealth, the latter shall prevail, and the former shall, to the extent
of the inconsistency, be invalid.

The importance of section 109 of the Constitution is reflected in situations where a

conflict occurs between State and Federal laws. This is evident not only in
various laws which deal with industrial matters, but also with anti-discrimination
laws.

 Test used by the High Court to determine inconsistency between state and
Commonwealth law

 Direct Inconsistency Test

 Covering the Field

Court system

 Courts exist in a hierarchy and are presided over by judges and magistrates (and
sometimes by justices of the peace).

 A court is not bound to follow its own previous decisions. But in practice, a court will
only depart from its previous decisions in exceptional cases.

 Class actions – generic term which covers proceedings brought by a number of

persons similarly affected by conduct Eg. Against tobacco companies, Asbestos
claims etc

 Doctrine of Precedent

 Binding nature of legal principle. A precedent is the decision of a court that is used as
an authority for reaching the same decision in a later case.

 Dependent on the hierarchy of the court system = a court is bound to follow

precedents set by superior courts in the same hierarchy and rely on the reasoning of
judgments recorded in law reports
The Australian Court
Hierarchy

12
Doctrine of Precedent (cont.)

 Concepts of ratio decidendi and obiter dicta Donoghue v Stevenson [1932] AC

562 & Cohen v Sellar [1926] 1 KB 536

 Where facts are materially similar lower courts are bound to follow the ratio
decidendi of the superior court but courts are not bound to follow their own
precedents (but would normally do so for the sake of consistency)

 Obiter dictum (“a thing said by the way” or “a remark in passing”) is a statement
made by a judge of principles of law which relate to hypothetical facts, rather
than to the particular facts of the case being determined. Often, a judge raises
comparisons or examples in obiter remarks (Persuasive precedent).
Doctrine of Precedent (cont.)

 The doctrine of precedent is a set of principles governing the way in which

courts must deal with cases they are deciding. The doctrine is also known as
the doctrine of stare decisis, which means “let the decision stand”.

 A lower court must follow the decision of a superior court in the same judicial
hierarchy in cases involving similar facts. In the same jurisdiction such a
decision constitutes binding precedent. If the judge in a lower court fails to
apply a binding precedent, that failure will provide the ground for an appeal to
the higher court.
Precedent (cont.)

 The decision of an inferior court in the same judicial hierarchy, or of any court in
a different hierarchy, may constitute persuasive authority. In such a case, a
superior court may be persuaded by the decision but is not bound to follow it.
(Note that decisions of the House of Lords, although not binding in Australia, are
often given great weight in Australian courts.)

 Only the ratio decidendi of a case is binding.

 Obiter dicta are never binding.

 Precedents are not invalidated merely by the passage of time but may conclude
that a precedent was wrong or has become unreasonable in modern society eg.
Gillick v West Norfolk Area Health Authority [1986] AC 112 HOL

 Note the concept of distinguishing

Statutory Interpretation

 Addresses ambiguity in legislation

 Definitions

 Rules of Statutory Interpretation

 Literal approach – words given their natural and literal meaning eg. Amalgamated Society of
Engineers v Adelaide Steamship Co. (1920) & IRC v Hinchy (1960) AC 748.

 Golden Rule – qualifies literal rule in cases where it’s application leads to an absurd or
inconsistent result with the rest of the legislation eg. Holmes v Bradfield RDC [1949], Adler v
George (1964) 2 KB, Lee v Knapp (1967) 2 QB

 Mischief rule – what was the reason for the legislation being made? (commonly used rule)
Maritime Services Board v Poseidon [1982] 1 NSWLR 72, Smith v Hughes (1960) 1 WLR

 Purposive approach – allied to mischief rule – Act interpreted in accordance with its general
purpose (intention of Parliament when it was passed) and enables the use of ‘extrinsic’ material
such as Hansards, Law Reform reports, international treaties/conventions etc
Statutory Interpretation

 ejusdem generis rule – general words given the meaning of the words immediately preceding it

 Eg. Hy Whittle Ltd v Stalybridge Corp (1967) 65 LGR (UK) 344 – “meat, fish, poultry, vegetables,
fruit and other provisions” – what is breath of “other provisions”??

 Specified items are all raw products therefore other would not apply to bread and confectionary =
finished products

 Measuring words against the wider social context – eg. Balancing an obligation against the size of
a risk and commercial cost of averting it
Review of Administrative Action

 Administrators have power given to them to make ‘delegated legislation’ = regulations, bylaws &
local laws. Also, are to use ‘discretion’ in the exercise of their powers

 Delegated legislation is a secondary form of statutory law created not by parliament but by
delegates-persons or authorities authorised by parliament Eg. Governor, ministers, public servants.


Reasons for

Convenience
Technical expertise
Timeliness

Reasons against

Surrender of legislative powers by Parliament

Difficulty in locating
Review of Administrative Action (cont.)

 Power or scope is given to them by the ‘Enabling Act’ (State or Federal legislation)

 Must exercise their power within the parameters granted by the Enabling Act. Administrators are to
exercise Discretion in discharging duties-Eg. Powers to ‘regulate’ versus ‘prohibit’ activities

 Swan Hill v Bradbury (1937) 56 CLR & Paul v Munday (1976) 50 ALJR

 If exceed statutory power – acted ultra vires and the exercise of their power can be challenged under
judicial review

 Courts may decide the administrative action is invalid on several different grounds including ‘ultra
vires’ which means ‘beyond the power’. So, in circumstances where a public servant for example
carries out action allowed by statute or regulation they must do no more than authorised.

 If this power is exceeded, their action will be considered either wholly or at least partially ultra vires
and therefore invalid.
Review of Administrative Action by
Courts under Common Law Principles

In circumstances where a decision maker is operating within the power vested in the statute or regulation
authorises the administrative action will be considered ‘intra-vires’ or valid.

An example can be found in AG v Fullham Corporation [1921] 1 Ch. 440

A local government was authorised by statute to establish ‘public baths and wash houses’. They acted
wholly Ultra Vires when a laundry service was created. Had public baths/washhouses and a laundry service
been established the result would have been partially Intra vires and partially Ultra Vires.

Other examples:
Utah Construction & Engineering Pty Ltd v Pataky [1966] AC 629

The Privy Council held that a regulation providing that a tunnel must be safe was ultra vires as the statute
required the authorisation of the means but the regulation only authorised the goal.

Paul v Munday (1976) 50 ALJR

An anti-pollution power that prohibited the emission of air impunities didn’t actually entitle the local
authority to prohibit open fires by regulation therefore it breached the Act by going beyond statutory
regulation making power.
Review of Administrative Action by
Courts under Common Law Principles

Swan Hill v Bradbury (1937) 56 CLR

Under a local government act, councils were allowed to make law for the purposes of regulating and
restraining building activities. SH created a by-law that prohibited construction without council approval
and as a consequence was considered invalid by the court.

Procedures & Remedies

Decisions of a government body/statutory authority can be overturned if not done within principles of
fairness and according to the procedures set out in the relevant Act
 Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1997) 142 ALR 1 (The Passive
Smoking Case)

Number of available grounds of review dependent on the circumstances

Court can overturn decision, issue an injunction, return a decision to a decision-maker to make another
decision; issue a declaration; damages

So, delegated legislation AND the way such law is carried out can both be reviewed.
Next week

 The Nature of the Employer-Employee relationship (this is important as

Assignment 1 is based upon this area of law so don’t miss it!)

 Tutorials start this week!

 See you then!