You are here: NTLawHbk » NTLawHandbook » WhatIsTheLaw

What is the law?

22 Aug 2017 - 14:17 | Version 19 |

Contributed by FriedaEvans and current to 1 May 2016

It seems that there are as many answers to this question as there have been philosophers who have examined it. However, law is traditionally seen as rule-based; that is rules are made or accepted to regulate human affairs. For this reason law has been said to be 'the glue that holds society together'. Law can also be seen as evolutionary - generally it becomes more complex over time but still retains its original base. However defined, law is certainly the product of the society it regulates and the time in which it is developed. Law is not static; it changes to suit the prevailing social and political values.

Where does the law come from?

Australian law comes principally from two sources: parliament and judges. Although these sources are being increasingly influenced by international law, international laws have no direct status here, except for a very few exceptions. For an international law to become law in Australia, a parliament has to accept it into domestic law. It is also possible in some cases for a judge of a court (such as the High Court) to develop international law into the common law.

To many indigenous Territorians, Aboriginal traditional law is at least as important as 'whitefella law'. Traditional Aboriginal law continues to regulate many aspects of life, particularly on remote communities, however, as the NT Court of Appeal has ruled:
'There is no dual system of law in the NT ... [Traditional] law is not legally binding and enforceable in this Court, even upon an indigenous person who submits himself to it, save and except to the extent to which Australian law is prepared to recognise and enforce it...' [Re Director of Public Prosecutions Reference (No 1 of 1999) [2000] NTCA 6; (2000) 10 NTLR 1 at 10].

The most notable such exception to date has been the limited recognition of native title rights following the High Court's historic Mabo decision (Mabo and others v Queensland (No 2) (1992)).

Parliamentary-made law ('legislation')

Laws made by the Federal, Territory or State Parliaments are called Acts or statutes or, more commonly, legislation. While an Act is in draft form, that is before it has been voted on and either passed or rejected by Parliament, it is called a Bill. An Act doesn't become a law until the Crown, represented by the Administrator or the Governor-General, approves it - a reminder of our constitutional history inherited from England. Nowadays, this is a purely formal act, done by the representative of the Crown on the advice of Ministers. Parliament can repeal (do away with) or amend (change) an Act.

In addition to Acts, there are laws covering administrative details and other matters not easily dealt with in an Act. An Act can empower some public authorities, such as a local government council or a Minister controlling a government department, to make regulations, rules, ordinances or by-laws. These laws are collectively known as delegated legislation because Parliament has delegated to another body its powers to pass these types of laws. Such laws are generally scrutinised by parliamentary committees and may be disallowed by a vote of members of Parliament. This is, however, a rare event. The courts can also rule whether such delegated legislation is properly authorised by the parent statute.

Judge-made law (the 'common law')

Our current system of law courts evolved out of the Royal Courts of England. The monarch delegated the function of the Royal Courts, usually to senior lawyers. Over time the courts became free of political influence and decided cases only on the law. Thus, in a sense courts have been created by government to decide legal cases independently. Their functions and independence are now guaranteed in the Australian Constitution. This independence from the government is sometimes referred to as the separation of powers.

To decide a case, a court is made up of one or more judges or magistrates, who are senior and experienced lawyers. Judges are bound to decide cases according to the law, and not personal whim. To make sure this happens, the legal process has been made transparent, that is, courts are generally open to the public, and there is a series of appeal mechanisms in place. Judge-made law is known as the common law. The NT, for example, has its own body of common law. However, since there is a national appeals court - the High Court of Australia - the common law tends to be uniform across Australia.

Cases are decided on their facts, but judges are bound by a strong tradition of deciding cases along the lines of earlier decisions made in similar issues. This ensures that people with similar problems receive similar (equal and predictable) justice. Even if the facts in earlier cases are not identical, judges can compare cases and draw out a common principle or develop a new and consistent principle for new facts. This evolutionary practice of following the principles of previously decided cases is known as the doctrine of precedent. It is convenient to think of the doctrine as a tool judges and lawyers use to attempt to work justice for people sharing a particular problem.

In deciding cases the following rules apply:
  • a court's decision is binding on the parties to a case
  • if an appeal is not made in the time limits allowed (generally one month), the matter is settled and the case can't be reopened (except in exceptional circumstances)
  • a higher court hearing an appeal can affirm (agree with) or overrule (go against) the lower court's decision
  • in deciding new cases, courts must follow the previous decisions of higher courts
  • the decision of the highest court - the High Court of Australia - is final.
A court must offer reasons for its decision, usually in writing. These reasons will explain what facts it has found, what the meaning of any legislation is, and why the court has chosen to follow or not follow a decision made in a similar prior case. A case with similar but not identical facts can be decided differently.

The Australian legal system is based on the adversarial model: the parties - in a criminal matter the State (sometimes the Crown or the Director of Public Prosecutions) and the accused (the defendant); in a civil matter, the person suing (the plaintiff) and the person defending the action (the defendant) - bring to the court all of the evidence that supports their case. To ensure that only reliable facts are presented, complex rules of evidence operate. The judge listens to each party argue their side of the case, decides which law is relevant (statute or common law or both), and after applying the law to the facts, makes a decision which is binding on the parties. Sometimes, such as in criminal cases, members of the community sitting as a jury assist the court by fact-finding. The solution for the parties is essentially retrospective in that it attempts to determine and set right unsatisfactory behaviour and transactions from the past.

How legislation and the common law interact

If made in accordance with a constitution, parliamentary-made law is binding on courts and judges. Courts cannot overrule or challenge an Act unless they hold it to be unconstitutional; that is, beyond the power of the Parliament as defined in the relevant State, Territory or Federal Constitution. As mentioned above, delegated legislation can be challenged in the courts in a similar way.

Legislation usually attempts to control future activity with universal application, which is why Acts are often drafted in wide-ranging terms. Only the courts can interpret legislation and say what is lawful. A court's interpretation is read together with the Act to become part of the law on that topic. For example, the law on families is not completely contained within the text of the Family Law Act 1975 (Cth), but found in a combination of that Act and the decisions of courts on matters controlled by the Act.

A set of rules has been developed over the centuries by judges to help them interpret Acts. For example, the 'golden rule' of interpretation dictates that words in Acts are given their plain English meaning unless that would lead to an absurdity. However, the trend nowadays is to start by looking for the underlying purpose motivating the parliament. Increasingly, judges are permitted to look at materials outside of the words or text and structure of the Act, such as parliamentary debates, to investigate issues of purpose. Other related common law rules help people drafting or using Acts, because they provide some certainty of meaning. If, for example, an Act says a Minister may do a certain thing, it is generally assumed that the Minister has a discretion or some choice in the matter. If an Act says a Minister shall or will or must do something, then the Minister is bound to do that thing.

Often, because of the problem of generality, an Act is ambiguous and the interpretation given to it by the courts will vary, depending upon the particular facts in each case. Therefore, it is sometimes difficult to state accurately what the law is.

Although judges generally interpret legislation so that it is consistent with the principles of the common law, an Act can, of course, alter the common law. Where legislation and the common law are inconsistent, legislation prevails. This is because our Constitution is built on parliamentary supremacy. Often an Act adds to an area of the common law, but sometimes parliament passes an Act (sometimes called a Code) that attempts to replace an area of common law completely.

The constitutional system

Australia's legal and political structure depends upon a constitutional framework comprised of a written Constitution and doctrines and customs inherited from the British legal and parliamentary system. When Captain Cook claimed 'Terra Australis' (of the East Coast) for the British Crown in 1770, the legal basis for the application of British law in the new colony (from 1788, when settlement commenced) depended upon whether the colony was viewed as settled, conquered or ceded. Had the colony been classified as conquered or ceded, any pre-existing legal system operated by the indigenous people at the time of conquest would have been recognised. The colony was, however, classified as 'settled', the land considered uninhabited, so that there was no recognition of any pre-existing system of law. This classification of 'settled' was made on the basis that the Aborigines did not cultivate crops. They were a nomadic people and as such, to the European way of thinking, did not inhabit the land. As a consequence, all British law, both statute and common (so far as it could be made to work in a remote colony), flowed into the perceived void. This is not to say that Aborigines did not have a system of law, only that the Europeans failed to recognise and understand it, or if they did, they conveniently ignored it.

In June 1992 the High Court of Australia re-examined the original assumptions about Australia's status as a colony in a case involving a land claim in the Murray Islands. In a landmark decision Mabo v Queensland (No 2) (1992) 175 CLR 1 the court found that the failure to recognise the indigenous population was wrong, stating in effect that it was a convenient legal justification for events subsequent to 1788. The pre-existing rights to land of Australia's original inhabitants were thus recognised by the common law. However, the High Court concluded that Aborigines were still subject to all statutes and other rules of the common law. The High Court also raised the possibility of legal recognition of other aspects of Aboriginal law.

The growth of the colonies, successful self-government in other dominions, such as Canada, and the distance from England all created pressure for autonomous governments and legal systems. Economic factors and the fear of invasion by other imperial nations were instrumental in a push towards unification of the colonies. After a series of constitutional conventions in the 1890s, Australia adopted a Federal Constitution that provided for power sharing between the layers of government. The Constitution came into force on 1 January 1901.

The Australian Constitution is contained in an Act of the British Parliament. Passed in 1900, it sets out the terms of a compact or settlement or agreement reached between the Australian colonies for an Australia-wide Federation. It establishes Federal Parliament and a Federal court system and a Federal system of government within which the States are an essential element.

Federal law and State law

The laws of the Federal Parliament, made under the Australian Constitution, apply to all Australians whereas laws made by the NT Parliament (called the Legislative Assembly) only apply to people and things in the NT or having a connection with the NT. The Federal Parliament only has the power to make laws in the areas listed in the Constitution. The 'limited' powers of the Federal Parliament are actually quite comprehensive and include interstate and foreign trade and commerce, taxation, postal, telephonic and similar services, including television, defence, fisheries beyond the States' limit, currency and coinage, banking and insurance, bankruptcy, trading and financial corporations, marriage and divorce, various social services, minority racial groups (including Aborigines), migration, foreign affairs and industrial conciliation and arbitration of interstate industrial disputes (Australian Constitution s.51). If the Federal Parliament passes legislation that falls outside the powers granted to it under the Constitution the legislation can be declared invalid by the courts. The Federal Parliament can also make laws for the Federal Territories, such as the NT. Over the years the Constitution, as interpreted by the High Court, has allowed the gradual expansion of central power, particularly as the Commonwealth has effective control of the major sources of tax revenue.

State Parliaments have the power to make laws in almost any area as long as it is for 'the peace, welfare and good government' of the State. The States have their own constitutions which is the source of their Parliaments' power to make legislation.

Like the States, the NT has a separate Constitution. However, unlike the States, the NT's Constitution is an Act of Federal Parliament called the Northern Territory (Self-Government) Act 1978. This Act came into effective operation when the NT ceased to be administered and controlled by the Commonwealth, on Self-Government Day, 1 July 1978. The powers of the NT Legislative Assembly and NT Government are similar to the powers of State Parliaments and governments and cover areas such as crime, the police, industry, mining, land use, environment, health and education.

If laws made by a State conflict with a Federal law, the Federal law prevails (Australian Constitution s.109). This means that the State law stays on the statute books but is inoperative while the Federal law is in force.

Despite self-government, the NT does not have the independence from the Commonwealth enjoyed by the States. The Federal Government can disallow any Act of the NT Parliament, and Territory legislation can be legislatively annulled, as happened with the passing of the Euthanasia Laws Act 1997 (Cth) which rendered inoperative the Rights of the Terminally Ill Act 1995 (NT).

Recently, there have been moves towards statehood for the NT. In 1998 a majority of Territorians rejected a model of statehood proposed by the NT Government and a statehood convention.

Citizens' constitutional rights

The Australian Constitution also contains the fundamental guarantees or rights, both express and implied, that Australians are entitled to enjoy, such as that the Federal Government may not confiscate property without paying adequate compensation (an express guarantee), and that Australia is built upon a representative democracy that entails regular elections and a limited form of political free speech (an implied right). These rights are not nearly as broad as those outlined in the United States' Bill of Rights and there is considerable debate over whether Australians need more constitutional guarantees. Australia now has the dubious distinction of being the only modern constitutional democracy without a Bill of Rights. It is also unclear to what extent these guarantees apply in the NT, although generally speaking the consensus seems to be that Territorians have the same rights as other Australian citizens.

Criminal Law and civil law

Criminal law

A crime, or offence, is essentially conduct that is contrary to the social expectations reflected in law, such as stealing, assault, fraud, failing to lodge tax returns, and polluting. The government has the role of prosecuting or enforcing the law against a person or company, usually through the police, the Director of Public Prosecutions or some other government body. A person who is being prosecuted in criminal law is called the defendant or the accused. If a person or company is found to have committed a criminal offence a penalty, such as a fine, a bond or imprisonment is imposed on them. In criminal law, the standard of proof is 'proof beyond reasonable doubt'. Criminal law is discussed in detail in Criminal offences and Criminal proceedings.

Civil law

Broadly speaking, civil law is all law that is not criminal law. Examples of matters that come under the heading 'civil law' are contract law, family law, the law of torts and administrative law. A tort is conduct, intended or not that causes harm or damage, and for which the injured person can claim compensation. A well known tort is negligence. Administrative law actions usually involve a claim by a person against a government agency - something that has become much more common in the last 30 years.

Civil cases usually involve individuals or companies taking legal action against other individuals or companies often for doing something that is alleged to be unfair, harmful or contrary to an agreement. A person bringing a case is called a plaintiff or, sometimes, an applicant or complainant. A person against whom an action is taken is called a defendant or respondent. Civil cases often result in orders to pay compensation (damages) or to do something differently or in a particular way in the future. In civil law, the standard of proof is the 'balance of probabilities'.

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