The Law

Introduction

A legal system is the framework of rules and institutions within a society that regulates the society. These rules and institutions organise and regulate the activities of individuals with one another and the activities of the state and its relationship with individuals.

Australia inherited the English legal system through the process of colonisation and the grants of self-government. Since then, Australia’s legal system has evolved its own character and identity apart from England.

Because of Australia’s federal structure, most Australians live with two legal systems, two parliaments, and two judicial systems. There are two sets of laws: federal laws and state laws. The federal and state legal systems are similarly structured and together they comprise the Australian legal system. In that system, there are different types of laws.

Types of law

There are two important types of law in Australia: legislation and precedent. Parliaments, and the bodies authorised by parliaments (including local governments), make laws by legislation. The courts of law declare the law by deciding cases that become authoritative precedents.

Legislation: statute law and delegated legislation

The Commonwealth and state parliaments make laws directly. This is known as statute law. Statutes, or acts of parliament, are created by parliaments following the procedures laid down in the relevant Commonwealth or state constitutions and in the standing orders for the houses of that parliament.

As well as making laws directly, parliaments can delegate their law making powers to other bodies to make laws on their behalf, such as the Governor-General, state governors, local councils, government ministers or bureaucrats in government departments. Laws made by these bodies are known as delegated or subordinate legislation. The process for making delegated legislation and the extent of the subordinate legislation these bodies can make must be authorised by a statutory enactment of parliament. If validly made, delegated legislation is just as much a part of the Australian law as the enactments of parliament.

An important body of delegated legislation is the regulations and ordinances that many acts of the Commonwealth parliament authorise the Governor-General to make. Similarly, state governors make regulations under the authority of state legislation. The by-laws made by local councils are yet another important example of delegated legislation, this time from state parliaments and the Northern Territory parliament.

The laws made by the Northern Territory and the Australian Capital Territory parliaments are a special case of delegated legislation from the Commonwealth Parliament. In the case of these territories, the Commonwealth has created a new polity complete with legislative, executive and judicial powers.

Precedent: common law

The courts not only interpret legislation, they are an important source of law in their own right. This judge made law is known as the common law. The common law is based on the idea of precedent: that courts should generally treat like cases alike and follow the legal principles that guided past decisions. Judicial precedents are established by the previous cases that treated similar facts, either by the current court or a superior court in the hierarchy of courts.

Not all cases contribute to the common law and the body of precedent. First, judges and magistrates in the lower courts must follow the precedents established by the superior courts in the hierarchy of courts. They cannot establish their own precedents. Second, the only superior court decisions that contribute to the body of precedent are those dealing with a new set of circumstances that are sufficiently different from past cases such that they warrant a new reason for a judicial decision. Third, cases that contribute to the common law must be reliably recorded in recognised law reports. Fourth, while it is very rare, the High Court may overrule its past decisions, removing them from the body of precedent.

The operation of legislation and precedent within Australia has been shaped by the evolution of the Australian legal system, beginning with colonisation, when the British legal system supplanted Indigenous legal systems.

The government and law-making

In Australia, each of the three branches of government - legislative, executive and judiciary - has a role in making the law of the land. These roles are set out in the following table.

  Legislature Executive Judiciary
Governmental function Makes the law Administers and polices the law Declares what the law is
Law making capacity Statute Law Delegated legislation Common law

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