What is the law?

Contributed by FriedaEvans, as amended by RachelKlesch and current to December 2024

The law is a set of rules or principles used to regulate humans. Generally, the law is created and enforced by the government or other institutions to regulate behaviour with the aim of providing guidelines on what society will find acceptable or unacceptable. It also provides a mechanism to resolve conflicts and maintain order. However, the idea of "law" can vary across cultures and change over time to reflect social values and priorities. In summary, the law is a framework that outlines the rules of a society.

Where does the law come from?

In Australia, there are two primary sources of the law:

1. Parliamentary law ('legislation') is made by federal, state and territory parliaments. This included delegated or subordinate legislation that gives powers, given by parliaments, to bodies such as government departments and local councils that may make regulations and bylaws.
2. Judge-made law ('Common Law') is made by the courts. Judge-made law is created through decisions made in cases. When a judge makes a ruling, especially in higher courts like the Supreme Court or High Court of Australia, they set precedents that lower courts follow in similar cases. This type of law changes over time as the court interprets and applies the law to new situations.

In addition to these sources, Australia has a Constitution that sets out the division of powers between Federal, state and territory governments, the role of the King, Governor-General and ministers, the role of the courts, and how the government looks after public money. The Constitution also explains how new Australian states can be formed, the location of the national capital, and how the Constitution can be changed.

First Nations people in Australia also have legal systems and legal traditions. These laws, such as Native Title Rights, have been somewhat recognised in Australia. See, for example, the High Court's historic decision in Mabo v Queensland (No 2) [1992] HCA 23 that affirmed First Nation people had land rights that had not been extinguished by other use.

Parliamentary-made law ('legislation')

Laws created by Parliament are usually called acts, statutes, or legislation. Before a Parliament passes an act, it is called a bill. After Parliament votes to pass a bill, it will need formal approval before it can become law. The Parliament can also change (amend) or remove (repeal) an Act. Sometimes, an Act allows other authorities, like local councils or government ministers, to make rules. This is called delegated legislation and is used to handle details not covered in the Act. Parliament checks these rules and can cancel them if necessary.

The courts can also decide if the laws made are valid. For example, courts can rule whether delegated legislation is properly authorised by the statute to which it belongs. The High Court of Australia can review federal and state laws to ensure they comply with the Constitution.

Judge-made law (the 'common law')

Judges make decisions by applying the law based on the facts of each case, usually following past decisions in similar cases to keep things fair and predictable. This is called the doctrine of precedent, which means judges use past cases as a guide to make sure people with similar issues get similar results. Even if the facts in earlier cases are not identical, judges can compare cases, identify a common principle, or develop new principles. These common principles can be described as the common law that can be applied to other cases, and the law should be explained and how it should be applied. Common law can be specific to states and territories; for example, the NT will have its own body of common law. However, there is a common law across Australia.

In the doctrine of the precedent, lower courts will generally follow higher courts' decisions. In Australia, the superior court for the states and territories is the Supreme Court for each area. Across Australia, there is the Federal Court and the High Court of Australia.

How legislation and the common law interact

When Parliaments make a law according to the Constitution, it is binding on the courts. Courts can only question or reject legislation or delegated legislation if they find it is unconstitutional or goes beyond the Parliament's defined powers.

A set of rules has been developed to assist judges in interpreting legislation. One example is the 'golden rule', where legislation is considered in its ordinary and plain meaning. If the plain meaning is problematic or absurd, the golden rule allows judges to modify the interpretation while respecting the law's intent. To explore the intent of legislation, judges may look at material outside of the text of legislation and look at parliamentary debates and statements made about the legislation. There are other rules that judges may use to help them interpret legislation, and these are set out in the Acts Interpretation Act 1901(Cth) and other state legislation.

Often, legislation is consistent with the principles of common law. There is a common law assumption where the courts assume that Parliament did not intend to override fundamental principles of the common law unless they explicitly state it. The Parliament can pass legislation that attempts to replace an area of common law, sometimes called a Code, like the Criminal Code Act 1983 (NT).

Where there is a conflict or inconsistency between the common law and legislation, legislation will prevail. Australia follows the principle of Parliamentary Supremacy, where the Parliament has the highest authority in creating and changing laws. Under the Constitution, the laws of Parliament are binding on everyone, including the courts. This power, however, is not absolute and is limited by the Constitution.

The constitutional system

The Australian Constitution was established in 1901 and is the document that sets out the structure, powers, and limitations of Parliaments in Australia. It decides law-making powers between the Commonwealth Parliaments and the state and territory Parliaments. The Constitution provides a system of checks and balances that limit the powers of each branch of government.

Key features of the constitutional system include:

1. Supremacy of the Constitution- all other laws and the government must follow the Constitution. No other law can override the Constitution, and any inconsistent law can be overturned by the courts.
2. Separation of powers- the government is divided into three branches. The three arms created under the Constitutional system operate independently to prevent any branch from having too much power. They are;
   -The Parliament has the power to make laws within the scope of its authority, as outlined in theConstitution. The Parliament debates and passes bills that, once approved, become law. The Commonwealth can make laws in relation to trade, defence, foreign affairs, and immigration. State and territory parliaments have some power over areas such as health, education, and policing.
   -The Executive has the power to ensure Parliament's decisions are put into action, including delegated legislation. The Prime Minister and Cabinet make policy decisions and run government operations, administering the law and government services—the Executive acts on the advice of the Minister, who is accountable to the Parliament.
   -The Judiciary operates independently from the Parliament and the executive branch in interpreting and applying the law.
3. Division of powers- Australia has a federal system where powers are divided between different levels of government, for example, state and territory governments and the Commonwealth.
4. Protection of rights- the Constitution provides limited explicit rights such as religious freedom and the right to a fair trial; other rights are protected through legislation and the common law.
5. Rule of law- everyone, including government officials and the court, is subject to the law.
6. Judidical review- courts can interpret the Constitution; the High Court serves this role in Australia.

Federal law and State law

Federal and state government powers to make laws are divided according to the Constitution. The Federal Government makes laws that apply to the whole of Australia. State and territory Parliament may make laws for their states or territories. The Federal Government has exclusive powers to make laws concerning defence, foreign affairs, trade and commerce, currency and customs. Residual powers, not explicitly mentioned in the Constitution, are reserved for the states and territories. These include powers to make laws about health and hospitals, education (the Commonwealth also funds education), policing and law enforcement, local infrastructure and planning, and transport. Some concurrent powers are shared by both federal and state governments, including environmental protection. Each state has a constitution that gives them the power to make laws.

NT Parliament, also called the Legislative Assembly, makes laws that only apply to people and things inside or connected with the NT. The NT legislation created by the Federal Parliament called the Northern Territory (Self-Government) Act 1978 (Cth) gives powers to the NT Legislative Assembly and NT Government to make laws that cover areas such as crime, the police, industry, mining, land use, environment, health and education. The Federal government also has additional powers in the NT over industrial matters and First Nations land rights. In the past, the Federal Government could disallow any Act of the NT Parliament and Territory legislation, as happened with the passing of the Euthanasia Laws Act 1997 (Cth), which rendered inoperative the Rights of the Terminally Ill Act 1995 (NT). This power was taken away by the Territories Self-Cogernment Legislation Amendment (Disallowance and Amendment of Laws) Act 2011 (Cth) and the Governor-General can no longer disallow laws of the NT, however they can still override NT laws.

Under s 109 of the Consitution, if laws made by a State conflict with Federal law, the Federal law prevails.

Citizens' constitutional rights

The Constitution includes basic rights and protections, but Australia does not have a Bill of Rights. Some rights are clearly stated in the Constitution; these are called express rights. Some rights are implied, and these rights come through legislation and common law.

Under the Constitution, these sections provide for express rights:

• Right to just compensation, the government cannot take property from people without providing fair compensation, under s 51(xxxi).
• Right to a trial by jury for serious Federal offences, under s 80.
• Freedom of religion stops the Federal government from making rules restricting the free exercise of religion under s 116.
• The prohibition of discrimination based on the state of residence means that a state government cannot treat people differently because they live in another state under s 117.
• Freedom of trade and commerce guarantees the free movement of trade, commerce and goods between the states under s 92.

There are also implied rights not directly written in the Constitution but inferred by legislation or the common law. One example of an implied right is the right to freedom of political communication. This right was established in landmark cases such as the Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45, where the High Court considered political communication essential to Australia's system of representative Government. Implied rights include the right to vote, judicial independence and the right to equality in the electoral process.

Criminal law and civil law

There are two main categories of law in Australia:

1. Criminal Law- concerned with the punishment of people by the state.
2. Civil Law- concerned with disputes between private parties such as organisations or individuals.

Criminal law

Criminal law is the category of law that deals with actions that are considered harmful or dangerous to society. It defines behaviours that are prohibited, such as murder, assault and theft, and it outlines the penalties for people who commit such acts. Criminal law aims to protect people and property, deter this behaviour, maintain public order, and punish people who commit an offence. In Australia, criminal law is governed by federal, state, and territory laws. The government prosecutes or enforces the law against a person or company, usually through the police, the Director of Public Prosecutions or some other government body. A person being prosecuted in criminal law is called the defendant or the accused. Criminal law is discussed in detail in Criminal offences and Criminal proceedings.

Civil law

Civil law is the category of law that deals with disputes between individuals or organisations. Some key areas of civil law include contract law, family law, torts such as negligence, family law and administrative law, where the claim usually involves a person against a government agency.