Fitzroy Legal Service Logo

Bookmark and Share Fitzroy Legal Service facebook link Fitzroy Legal Service Twitter link

Where does law come from?

Today, law regulates almost every aspect of our daily life. There are several sources of this law. The dominant source is parliament, where elected politicians make laws. Judges also make law through their decisions in court cases. Local councils and public servants also make and administer laws. A range of people – like the police, Centrelink officers, council by-laws officers and transport police – administer and enforce laws.

These various sources of law fit together to create our legal system. Each part of the system – the courts, the parliament and the executive (ministers and public service) – has a separate role to play. In particular, the courts are independent of the parliament. This is one reason why judges are appointed for life.

Australia has a federal system of government. There is the Commonwealth Parliament (in Canberra) and a separate parliament in each of the states and territories. All parliaments make laws.

There are also two court systems. The federal court system comprises the Federal Circuit Court, Federal Court, Family Court and High Court. The state court system consists of Magistrates’, County and Supreme Courts. As well, there are a range of tribunals and boards that make decisions about individual disputes, but they do not have the same power as courts to “make law”.

Parliament-made law

Most law is parliament-made. The process to make laws is similar in both the federal and state parliaments. Laws made by parliaments are called statutes, Acts or legislation. A draft Act is called a Bill. A Bill is debated by parliamentarians and if it is passed by a majority in both Houses of Parliament it becomes an Act.

In addition to Acts of parliament, there are laws covering administrative details or other matters not easily dealt with in an Act. Parliament can delegate the power to make regulations, rules, ordinances or local laws to a public authority, a local council, a minister controlling a government department, or a public servant. These types of laws are known as delegated legislation.

The precise meaning of words and phrases in Acts and delegated legislation is sometimes difficult to understand. Courts are often involved in deciding the meaning of particular parts or words of an Act. The court’s interpretation of sections and words in an Act becomes part of the law. For example, the law related to divorce is not wholly contained in the Family Law Act 1975 (Cth). It is found by looking at both the Act and the decisions judges have made in court cases about the Act.

Victorian Acts apply to those living in Victoria and to the courts and judges within Victoria. Commonwealth Acts apply to the whole of Australia and to the courts and judges handling Commonwealth or federal law. The Constitution (see below) sets out which parliament has responsibility for different aspects of government.

Generally, judges cannot overrule or challenge an Act unless the Act is “unconstitutional”. This means it was beyond the power of the Commonwealth or state parliament to make that law in the first place. The courts can then declare the Act or parts of it invalid and of no effect.

The High Court can also resolve disputes where Commonwealth and state laws clash. The famous Tasmanian dam dispute in 1983 is an example of this principle at work. The Tasmanian Government wanted to build a dam in a wilderness area. The federal government wanted to protect the wilderness area. The state parliament passed a law permitting the dam to be built. The federal government passed a law protecting the wilderness from a dam. The clash of the two inconsistent laws was tested in the High Court. The High Court followed the accepted rule that where a valid state law and a valid federal law clash, the federal law prevails. The dam was stopped.

If a government does not like a court decision and a judge’s interpretation of an Act, the parliament can pass an Act specifically to overturn that decision or interpretation. Parliament can also add rules to judge-made law. In that case, parliament-made law will state all the rules for that area.

From time to time, parliament will repeal (do away with) or amend (change) an Act. Parliament is not restricted by earlier Acts, and can change laws as it wishes.

A set of rules has been developed by judges to help them interpret Acts; for example, there is a rule of interpretation that says Acts are to be given their ordinary meaning unless that would lead to some absurdity. When, for example, an Act says a minister may do this or that, we know that the minister has a discretion to do something. If the Act says the minister shall do something, we know the minister must do something. These rules assist people using an Act as they give some certainty to the meaning of commonly used words.

Occasionally, the meaning of an Act is unclear and the court decision (if there is one) is not helpful in clarifying the meaning. Where this occurs, the law is difficult to state one way or the other.

Judge-made law

Few Australian laws were made by parliaments prior to 1850. Judges decided each case as it came to court. They wrote down the reasons for their decisions and these are called judgments. The important judgments were published in books known as law reports.

Judges were (and still are) bound by a strong tradition to decide each similar case along the lines of earlier decisions made. If the facts of the earlier cases were not exactly the same, the judge could still compare the situations and apply a common principle or develop a new, reasonably similar principle for the new facts. This is known as the doctrine of precedent. The principles and rules contained in the collection of judgments and court procedures became known as the common law.

Some of the rules that direct the conduct of court cases and court-made law are:

  1. A judge’s decision in each case is binding on those involved (the parties) in that case. If you agree to the court sorting out your dispute, then you cannot seek to change the rules of the court after the case has been fought. Each party in a court case accepts the authority of the judge and must do whatever the judge orders to be done after the case is over.
  2. If an appeal is not made within the time limits, the matter is finalised and the case cannot be re-opened. If, for example, a neighbourhood dispute over a fence is fought before the courts, and one neighbour wins and the other loses, they cannot return before another judge later to argue the same case to see if there is a different outcome. Occasionally, fresh evidence in a criminal case can be used as a reason to re-examine a court’s verdict. Examples in Australia include the famous Lindy Chamberlain murder conviction and, overseas, the English IRA pub bombings where the Guildford Four and the Birmingham Six were jailed for crimes it was later discovered they could not have committed.
  3. If one of the parties appeals to a higher court (within the time limit), the higher court can either agree with the lower court’s decision or make a new decision. The higher court’s decision is then binding on the parties, unless an appeal is lodged within the time limits to an even higher court.
  4. The decision of the highest court in the court structure is final. No further appeals are possible. (For further information about the court structure and hierarchy, see Chapter 1.2: Courts.)

The doctrine of precedent means judges in lower courts must follow decisions of higher courts and a single judge of a court must follow a decision with more than one judge in that court.

The decisions of courts outside Australia are not binding on Australian courts. Although, these decisions can assist Australian courts to make decisions on new facts or new legislation. If, for example, a case before an Australian court is unusual or difficult, the judges and lawyers will look to the decisions of overseas courts for guidance or comparison.

A court, when it makes a decision, will give reasons for its decision. Another case with similar but not identical facts can be decided differently. If this happens, reasons will usually be given as to why this case should be treated differently. Each case is decided on its own facts.

The highest court in Australia is the High Court, which consists of seven judges and is based in Canberra. The Chief Justice of the High Court is Australia’s most senior judge. The High Court need not follow its own earlier decisions, or precedents, and can make new law by deciding (with a majority of judges agreeing) to change the law. The High Court did this with the landmark Mabo decision of 1992, when the judges decided to abandon what was then the established law on Aboriginal title to land (see “Aboriginal law”, below). For the first time, the High Court declared the Australian legal system could recognise Indigenous legal systems that existed before white settlement.

Parliament-made law overrules judge-made law if both apply to the same problem. However judge-made law still applies in many areas and the practice of following previous court decisions continues today. Not only do judges continue to develop the law in areas not covered by legislation, they also have an important role in interpreting legislation when there is a dispute about the meaning or application of a section of an Act. The decisions judges make in interpreting Acts become part of the common law, which other courts will refer to and follow.

Charter of Human Rights and Responsibilities

An important development in the interpretation of law in Victoria is the adoption by parliament of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“the Charter”). This parliament-made law seeks to ensure that certain human rights are taken into account when developing, interpreting and applying Victorian law and policy. The Charter came into force on 1 January 2007, although the obligation of public authorities to consider and act consistently with human rights and the courts to interpret and apply legislation in accordance with the Charter became effective on 1 January 2008.

The rights in the Charter come mainly from an international human rights document, the International Covenant on Civil and Political Rights 1966. The rights included in the Charter are:

  • the right to life;
  • freedom of movement;
  • freedom of expression and assembly;
  • the right to liberty; and
  • the right to a fair hearing and protection from retrospective laws.

The Charter requires courts and tribunals, as far as possible, to interpret and apply legislation consistently with these human rights. If this is not possible, the Supreme Court can issue a Declaration of Inconsistent Interpretation. The government must then respond to this declaration within six months.

Where does law come from? :: Last updated: Sun Jun 30th 2013