Legislation — parliamentary law

Prior to the formation of the Commonwealth of Australia on 1 January 1901 the self-governing colonies operated independently and passed legislation through their own individual parliaments and, for some, under their own Constitution. The passage of the Commonwealth of Australia Constitution Act 1900 (the Constitution) by the British government established the Commonwealth of Australia. The Constitution gave the Commonwealth Parliament the power to make laws either exclusively or concurrently with the states. Under the Constitution, the state parliaments retained their power to make laws as they had done prior to federation, unless the power to make laws about a specific matter had been given exclusively to the Commonwealth. Section 107 of the Constitution states:

The Commonwealth Constitution thereby limits and controls the power of the states to pass legislation. Section 52 of the Constitution identifies the matters over which the Commonwealth Parliament has exclusive power to pass legislation whereas section 51 grants powers over matters which are not exclusive to the Commonwealth and are thereby shared with the states. These are referred to as ‘concurrent powers’. Under section 51 of the Constitution both the state and Commonwealth parliaments are empowered to pass laws on matters such as trade and commerce with other countries, tax, postal and telegraphic services and under placita 51 xxiiiA ‘… the provision of … pharmaceutical, sickness and hospital benefits, medical and dental services …’.

Each of the federal, state and territory parliaments, through their individual constitutions, may pass laws for the ‘peace, and good government’^[1] of the jurisdiction.

The federal, state and territory parliaments are therefore empowered to enact legislation, also known as Acts or statutes, for the purpose of regulating certain aspects of society. An Act, passed by the parliament elected by the people, is a primary source of the law and has priority over the common law, which is derived from court decisions. That is, legislation takes precedence over judge-made law (case law) and while it is not the role of the court to make laws where the same subject matter is covered by an Act, it is the role of the court to interpret legislation that is relevant to the determination of the case that is before it. Some states and territories will also have codes which are a complete statement of the law in a particular area. Legislation can be accessed online through the state, territory or Commonwealth government websites.

Prior to a draft Act (statute) being approved by the parliament it is called a Bill. A Bill must be passed by parliament before it is sent to the Governor-General, or Governor, for signature, also known as assent, which generally results in it becoming an Act and having legal force. This will be the case unless the Bill identifies its own procedure of enactment. That is, it may stipulate that it will not become effective until there is a notice placed by the government in the Government Gazette. The process for enacting legislation is the same in each jurisdiction where a Bill must pass through both the Lower and Upper Houses of parliament. However, in Queensland, there is only one house of parliament through which a Bill must pass.

At Commonwealth, state and territory levels legislation prescribes many of the activities of individual health professionals, professional regulatory authorities, health care facilities and institutions. The legislative provisions that apply to all aspects of the health care industry are therefore regularly amended and updated to keep pace with the current demands and constraints. There are many Acts of parliament at both the state and federal levels which regulate and control the practices of pharmacists and the services provided by them. To give some examples, at the state level, there are statutes that control the registration and regulation of pharmacists, legislation controlling workplace health and safety within a pharmacy practice, and legislation providing avenues for complaints by consumers of pharmacy services. At the federal level the legislation is primarily directed to issues of funding and regulating Commonwealth health care agencies and services.

Delegated legislation

An Act of parliament may also delegate the right to make rules, regulations or by-laws to a body or person designated within the Act. This is referred to as ‘delegated legislation’ and is binding on those to whom it applies, as are the legislative provisions of the parent Act. As an example, the pharmacy board in a particular jurisdiction may be delegated powers and functions under the Act which establishes the particular board as a regulatory authority. The Pharmacy Practice Act 2006 (NSW), section 155 empowers the Governor, under that Act to:

International law

Australia, along with many other nations, is a signatory to a number of international declarations, covenants and treaties and is therefore bound to pass domestic legislation that is consistent with the obligations imposed under these international agreements. As an example, the laws in Australia regulating the importation, export and manufacture of medicines and poisons will be consistent with the provisions of declarations and covenants to which the Commonwealth is a signatory. As an example, the Free Trade Agreements between Australia and countries such as New Zealand, Singapore, Thailand, Chile and the United States impact on the terms of exportation and importation of pharmaceutical products.

Reading an Act

While statutory interpretation is a major function of the courts and lawyers it may be of assistance to pharmacists to understand how an Act or regulation is to be read and understood. An Act is referred to by its name, the year it was passed by the parliament and the jurisdiction in which it was passed; for example, Pharmacy Practice Act 2006 (NSW). The Act will also be given a number; for example, the Pharmacy Practice Act 2006 (NSW) no 59 identifies the order in which the Act is assented to by the Governor or, in the case of Commonwealth legislation, the Governor-General. The date of assent is the date on which the Bill formally completed its passage through the parliament and met the constitutional requirement for becoming an Act. If the date of assent is included it is usually bracketed under the long title. The assent date may be different for the commencement date, which is when the Act becomes law. The long title for the Pharmacy Practice Act 2006 (NSW) states:

The layout of an Act depends on its subject matter. Many Acts are divided into Parts, which are like chapters in a book. For example, the Pharmacy Practice Act 2006 (NSW) has 158 sections in 12 Parts. The Parts are as follows:

Certain items and prescribed forms may be set out in a list appended to an Act in the form of Schedules. Sections in the Act will therefore refer to a Schedule effectively incorporating the content of the Schedule into the law. For example, the Pharmacy Practice Act 2006 (NSW), contains seven Schedules.

Regulations

One of the last sections in an Act confers on the Governor or Governor-General the power to make regulations that may be necessary for the administration of the Act. Regulations provide the essential details of administration that may change more frequently than the Act can be amended by parliament. Regulations are used to set fees and charges as well as a variety of requirements necessary to enable the daily implementation of the Act. The regulations are called delegated legislation (refer to ‘Delegated legislation’ at p 4). Regulations are drafted usually in the Attorney-General’s Department, advised by the department responsible for administering the Act. The regulations are tabled in parliament but they do not progress through parliament in exactly the same manner as an Act.

Common law

The law as it was imposed by England and Wales at the time of colonisation is referred to as common law. In addition to the use of the term to describe a legal system (comprising case law and statute law) it also describes a system of law that developed in the King’s courts from the 10th century through the accumulation of decisions made by judges in cases that came before them. Through the recording of principles and judgments in law reports there developed a body of case law and principles that could be referred to and followed. This practice, of following earlier decisions, is known as the doctrine of precedent and served to provide a level of certainty and predictability in the law.

In addition to the law, which developed in the common law courts, there is a distinct and separate system of case law referred to as equity. The laws of equity developed at the end of the 13th century when dissatisfaction with the common law courts led to the establishment of the Court of Chancery where legal disputes were resolved on the basis of conscience and equity rather than the rigid rules of the common law courts. While common law and equity remain distinct areas of law, the Australian courts consider both.

Generally, statute law overrides common law and common law prevails when no specific statute exists. Both common law and statute law are applied in the courts. In Australia there is a hierarchy of courts within the state and territory jurisdictions and the federal jurisdiction.

Adversarial and inquisitorial system

One of the functions of the law is to resolve disputes when conflicts arise between individuals, companies and institutions. The resolution of a conflict can take place through alternate dispute resolution mechanisms or through the court process. If resolution is sought through the courts the case will be brought before a magistrate, judge, or judge and jury with the expectation that the issues in dispute will be resolved and that there will be a declared ‘winner’. This competition between the parties that takes place within the courts is referred to as the adversarial process. There are very strict rules as to how this process is conducted and what are the roles, functions and obligations of all those who participate in this process. The role of the judge during court proceedings is to remain impartial and to ensure that the procedural rules are adhered to. The judge or jury will determine the outcome, where only one of the parties to the proceedings will be successful. This is different from the inquisitorial approach where the court may become a participant in the actual process.

The inquisitorial approach of resolving legal disputes is a characteristic of the civil law system practiced in many European countries. Under a civil law system the law is contained in a code (similar to an Act), and a judge may participate in the process of inquiry (which under a common law system is the role of the police and lawyers). The judges in civil law courts are therefore not confined to the evidence as put before them by the police and lawyers but may seek out information in their own right to assist them reaching their decision. Within the health care context the operation of the Coroner’s Court would be classified as inquisitorial while cases involving negligent actions will progress in an adversarial manner.

The court hierarchy

The Australian court system is structured hierarchically so as to delineate the extent of authority and the jurisdictional limits of each court. The jurisdiction of any court or tribunal gives the lawful authority to adjudicate or decide on an action, suit, petition or application brought before it. Jurisdictional power varies according to the seriousness of the offence, the amount of compensation that can be awarded, the nationality or place of residence of the parties, whether the matters are criminal or civil in nature, or even when and where the offence or event occurred.

Original and appellate jurisdiction

When a matter first arises, the court in which it is heard has what is known as original jurisdiction. Before a decision may be appealed in another court the dissatisfied party must be able to establish appropriate grounds. If this is established the subsequent court will be exercising its appellate jurisdiction. A decision may be the subject of an appeal in certain circumstances including: when a judge has misdirected a jury, made an error in relation to admitting or refusing to admit evidence, or there is an issue as to the severity or leniency of the sentence. For example, the District or County Court may hear a matter and, if a party appeals that decision, the Supreme Court will hear the matter using its appellate jurisdiction. Appellate jurisdiction is restricted to the superior courts including the District/County Court, Supreme Court, Federal Court, Family Court and High Court. In relation to the High Court, special leave (permission) must be sought before it will exercise its appellate jurisdiction. Figure 1.2 provides an overview of the court hierarchy, to illustrate the differences in both structure and jurisdiction of the courts in the hierarchy.

Figure 1.2 Federal, state and territory court hierarchy

Magistrates’ Courts

Magistrates’ Courts or local courts are presided over by magistrates who are addressed during the proceedings as ‘Your Worship’ or ‘Your Honour’. Magistrates sit alone as there are no juries at this level in the court structure. The jurisdiction of the Magistrates’ Courts is determined by the relevant legislation in each of the states and territories. These courts are the lowest courts in the hierarchy and determine the greatest volume of cases. As a general principle Magistrates’ Courts deal with minor civil and criminal matters, and with more serious criminal matters by way of committal proceedings. It is from this level of the hierarchy that magistrates are appointed as coroners or preside over Children’s Courts and Licensing Courts. These courts developed in response to the need to reduce the load from the Magistrates’ Courts and in recognition of the requirement for specialist knowledge.

District Courts

District Courts or County Courts (the latter being the name given to courts at this level in hierarchy in Victoria) are presided over by judges who sit with or without a jury. Their jurisdiction is both original and appellate. District Courts hear and determine civil and criminal matters that are governed by the relevant legislation in each of the states and territories. As a general statement all criminal matters other than murder, manslaughter and serious sexual assault will be heard in District or County Courts.

Supreme Courts

Supreme Courts are the most senior courts in the states and territories and are presided over by a judge, with or without a jury. Supreme Courts have an internal appeal mechanism referred to as the Full Court of the Supreme Court or Court of Appeal. This is where the court will hear an appeal from the Supreme Court sitting in its original jurisdiction. That is, hearing the matter for the first time. When the court is sitting as the Full Court the Court of Appeal there are three or more judges. While the jurisdictional limitations are determined by the relevant legislation in each of the states and territories, in civil matters Supreme Courts may hear claims for unlimited damages and, in the criminal jurisdiction, charges of murder, manslaughter and serious sexual assault.

The High Court

The High Court was established under the Constitution of the Commonwealth of Australia and comprises the Chief Justice and six other judges. The Australia Act 1986 (Cth), passed concurrently with the same Act in the United Kingdom, established the High Court in Australia as the final Court of Appeal for both federal and state courts. The original jurisdiction of the High Court concerns any matters that involve interpretation of the Constitution of the Commonwealth of Australia, or disputes between residents of different states/territories, or between states/territories and the Commonwealth government.

Provided leave has been obtained, appeals to the High Court of Australia can come from the Federal Court, the Family Court, and the Supreme Court of any state or territory involving civil or criminal matters. The Full Bench of the High Court, comprising all seven Justices, hears cases in which the principles are of major public importance, involve interpretation of the Constitution or invite departure from a previous decision of the High Court. Appeals from state and territory Supreme Court decisions, and from decisions of the Family Court, will be dealt with by the Full Court of not less than two Justices. A single Justice may hear and determine specified matters.

The Federal Court

The Federal Court of Australia was established under the Federal Court of Australia Act 1976 (Cth). This court was set up to further reduce the load on the High Court. Constitutional cases involving such matters as trade practices, bankruptcy and federal industrial disputes are heard. Appeals on decisions can be made to the High Court or the Full Court of the Federal Court.

The Federal Magistrates’ Court was established in 2000 to deal with less complex matters than would otherwise have been heard in the Federal or Family Courts. The range of cases coming before the Federal Magistrates’ Court include matters relating to bankruptcy, discrimination, privacy and family law. This court does not hear appeals.

Specialist tribunals

Specialist tribunals may be established under Commonwealth or state/territory laws to exercise specific jurisdictions and perform functions similar to that of the courts. The number and type of tribunals are increasing as government regulation of society becomes more complicated. In many jurisdictions the tribunals are being amalgamated; for example, the Queensland Civil and Administrative Tribunal. Tribunals are established by statutes for different purposes and therefore their powers and composition vary greatly. Examples of tribunals include professional regulatory tribunals, administrative appeals tribunals, tenancy tribunals and small claims tribunals. These tribunals perform ‘quasi judicial’ functions in that they make decisions within the ambit of their limited or specific roles. Decisions are made in a variety of ways and may involve a judge or, alternatively, a board of specialists not qualified in law. Unlike the courts, the tribunals do not make laws that are applied by the courts. While tribunals lie outside the court hierarchy, appeals may be made from their decisions into the court system if permitted under legislation. Often the role of tribunals is limited and narrowly defined.

Law reports

For a health professional to understand the common law principles that apply to their practice it is necessary to have the skills to read a case as reported. Figure 1.3 provides an overview of the features of the case of Qidwai v Brown [1984] 1 NSWLR 100.

Figure 1.3 Law report headnote of Qidwai v Brown [1984] 1NSWLR 100

As this is an appeal from the findings of the Medical Disciplinary Tribunal to the Court of Appeal of the New South Wales Supreme Court, Qidwai is the appellant and Brown is the respondent. The letter ‘v’ between the names of the parties is the abbreviation of the Latin word versus and signifies that the parties are against one another in the process of litigation. Directly beneath the names of the parties is the court in which the case was decided. That being the Court of Appeal. Below the court title are the names of the Justices before whom the case was heard, being Hutley, Samuels and Priestley JJA.

Next appear directly below words or phrases that are written in italics. These are the catchwords considered to be the important aspects of the case. In this case:

The following section is referred to as the ‘headnote’ which is a summary of the case. Though there is no case summary provided in the report in Qidwai, the headnote would generally contain the facts of the case which the reporter, responsible for providing the headnote to the publisher, regarded as important to that decision. It is essential for a comprehensive understanding of a case, that the entire judgment (and not just the headnote) is read. A list of cases that the court considered in reaching its decision are provided below the headnote. As Qidwai is an appeal, the last court or tribunal that decided the case is referred to next. In this case it was the Medical Disciplinary Tribunal where the appellant was found guilty of misconduct in a professional respect and reprimanded. The decision of the court, indicated by the word ‘Held’, contains the ratio decidendi. A summary of the findings of each of the judges who heard and determined the case is also provided. This may appear as separate reasons as delivered by each of the Justices or, where there is agreement (where they concur), two or more Justices may hand down a joint decision. At the end of the written determination the ‘orders’ (the judge’s final decision) handed down by the court will be reported.

As can be seen from Figure 1.4, while the formatting of web-based case reports may differ from the previous paper-based law reports, the information provided is essentially the same. The wide range of electronically based legal resources now available facilitates greater access to, and understanding of, the law. Knowledge of the Australian legal system and the legislation and case law that regulates the provision of pharmacy practise is essential to the provision of safe and competent pharmacy services.

Figure 1.4 Adamson v The Pharmacy Board of Tasmania (No 2) [2004] TASSC 82 (16 August 2004)