Sources of law

08 Aug 2016 - 10:53 | Version 1 |

Commonwealth Constitution

The ultimate source of law in Australia is the Commonwealth Constitution. It sets out the powers of the Commonwealth and the states, and defines the roles and structure of the arms of government in each jurisdiction. Since the Commonwealth Constitution was introduced in 1901, the Commonwealth Parliament has passed laws giving powers of self-government to both the Northern Territory and the ACT. In the ACT this is the Australian Capital Territory (Self-Government) Act 1988 (Cth).

Legislation

The main source of Australian law is legislation, also known as statutes or Acts. The Commonwealth Parliament, state parliaments and territory legislative assemblies create legislation by voting and passing Bills that have been brought before them. These can then be enforced as law.

Delegated legislation

Due to a lack of time and resources and the need for local flexibility, parliaments often delegate powers to the executive to make delegated legislation, also known as rules, regulations, ordinances and by-laws. State parliaments also delegate powers to local councils and government agencies, for example, to make detailed rules about matters such as the criteria that must be satisfied to obtain planning approval.

Case law

The other main source of law in Australia is case law, also known as the common law. Case law is created when members of the judiciary use legal principles to decide contested issues that are brought before them. Members of the judiciary interpret legislation and, in areas where there is no legislation in force, develop and apply common law principles. Although many subject matters are regulated primarily by legislation, there are some areas of the law, such as nuisance and negligence, in which case law is still the main source of legal rules. Legislation takes precedence over case law, so parliament can generally change case law principles that it considers unsuitable.

This site is powered by FoswikiCopyright © by the contributing authors. All material on this collaboration platform is the property of the contributing authors.
Ideas, requests, problems regarding AustLII Communities? Send feedback