Part 5 - Finding Primary Sources
Legislation
We
begin the second step by looking for legislation on
your topic.
But
before we begin: do you know how legislation and case
law relate to each other? Do you know what is meant
by a Bill, a second reading speech, an explanatory memorandum,
a principal Act, or, subordinate legislation? If you
are unsure of any of these things, please read these
background notes.
Legislation
and Case Law
Legislation is law made or authorised by Parliament.
Case law is judge made law. If there is a conflict between
case law and legislation, the legislation prevails.
That is why you should look for legislation first. Case
law often interprets legislation: by reading the case
law you understand the legislation and discover how
the law works in practice. There are areas of law for
which there is no legislation and you have to rely on
cases to establish the law. The proportion of legislation
to case law varies for different areas of law. For example,
criminal and environmental law are largely legislation;
tort and contract have much more case law.
There
is one exception to the rule that legislation prevails
over case law. In our federal system the Commonwealth
government is established by the Constitution and has
the powers granted to it by the Constitution. The High
Court of Australia is the final arbiter on whether Commonwealth
legislation is within its powers. The High Court may
find that a particular piece of legislation is unconstitutional
and, therefore, invalid.
Legislation
is of three main types: Bills,
Acts
and Subordinate Legislation. Bills are not law; Acts and subordinate
legislation are law.
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