Who makes the law?

Contributed by StephenShaw and current to 27 July 2018

The answer, at least theoretically, is that as we are a representative democracy, we do! We elect people to speak for us in the parliament, and the parliament in turn makes law that either we want or that we can recognise as good for us. Of course, the reality is not quite that simple, and to understand the process of law-making we need to understand a little bit about the system of government that we use in Australia.

The Commonwealth of Australia was created through an Act of the British Parliament that contained the document known as the Constitution of Australia. Before that Act was passed, Australia was divided into separate States, each of which governed itself under the overall rule of the British Parliament. Each State has its own Constitution. When the Commonwealth was formed the States held on to most of the powers of self-government that they had enjoyed under British rule, and the Commonwealth took over most of the role the British government had played.

This means that in Western Australia we have two separate but intertwined governments that are responsible for making and enforcing laws. There is a Commonwealth government and there is a State government. They are separate entities and they have separate law-making powers, but their roles overlap in many aspects of our lives.

The Australian Constitution divides government of the nation into three separate branches. These are the Legislature, the Executive and the Judiciary. The States’ Constitutions divide government into the same branches. The different branches, and their respective duties, are as follow:

The Legislature

The Commonwealth has two bodies of elected legislators: the House of Representatives and the Senate. The House of Representatives is made up of elected members that represent different electoral areas in the Commonwealth. The members of the Senate are also elected by the Australian people, but their role is traditionally to represent the interests of the different states that make up the Commonwealth.

At the Western Australian level of government there are also two houses, the Legislative Assembly and the Legislative Council.

These various groups of elected legislative members are usually referred to as parliament. The Commonwealth House of Representatives and the State Legislative Assembly are each usually known as the lower house, while the Senate and the Legislative Council are each called the upper house.

The Legislature is the branch of government that makes laws. The system is basically the same at both the Commonwealth and State levels. An individual, or more often a party, that wants to create a new law puts up a document that sets out the law that the parliament will have to consider. This document usually enters the system through the lower house. At this stage the written document is called a bill. It is debated by parliament, and may be sent off to a special committee for further consideration.

If the majority of the lower house of parliament agrees with the material in the bill it is sent to the upper house. The upper house in turn discusses and votes on the bill. Once the bill has the assent of both houses it is proclaimed, or announced. When it is proclaimed a date is set for it to come into operation and from that date on it is a law.

Often a separate set of regulations also comes into effect at the same time. Regulations set out the finer details of how the law will work. Regulations are also more easily altered than laws, so if there is something to do with the law that may need to be changed reasonably often, such as the amount of a penalty, it will usually be dealt with in the regulations.

The State Legislature often hands down (delegates) its law-making powers by giving other entities, such as Local Government, the right to make by-laws. That right is usually specifically set out in a core law, such as the Town Planning Act 1928 (WA). By-laws are still enforced by the government, despite not having been made and scrutinised by an elected body.

The Executive

The Executive is the administrative branch of government. It carries out the day-to-day business of governing. It enforces the laws. Police, customs officers, fishing wardens, health department officials, and other government employees charged with the duty of making sure that the laws or regulations are obeyed are all members of the Executive branch of government. In theory, the Executive is separate from the Legislature and does not make laws, though as the head of each Executive department is a government minister from the Parliament, that separation is not complete. Also, as discussed, the various Executive branches of government do have some right to make regulations and/or by-laws and also to enforce them.

The Judiciary

The Judiciary is the branch of government that is traditionally described as interpreting the law. When we speak of the judiciary we usually mean the courts and the magistrates and judges that preside in them. Their primary job, especially at the lower court levels, is to hear the case before them and then decide how the facts that have come out in the trial relate to the law.

It is not always clear how a particular law should operate in a particular set of circumstances. The Judiciary has the responsibility of working out what the law means in each given instance. In most cases, laws made by parliament are reasonably straightforward, but if there is any ambiguity in the written law or in the understanding of how the law should be applied, it is the Judiciary that works out the answer. The Judiciary cannot go directly against the clear words of a law simply because they think it is wrong or inappropriate in the circumstances, but there is often room for the Judiciary to read the law in such a way as to reduce the chances of that law of being applied unfairly.

Sometimes the Judiciary, and most often the Judges of the High Court, can make law (this is discussed further below). The High Court is the peak body in our Legal System. The built-up interpretations and elaborations that are arrived at by the various courts, which are contained in the judgments made by those courts, are called case law. The gradual changes that come about in the law and how it is applied are referred to as judge-made law. Judges are however guided in their decisions by the doctrine of precedent, whereby they are bound to follow the decision of a previous, higher court.

Parliament can usually make a law that overrides judge-made law. In response to pressure from various groups that felt that the judges had gone too far in allowing an injured person to blame someone else (as referred to in the above example), the WA State government has passed a variety of Statutes that limit the circumstances when a person can make a personal injury claim. Those statutes are examples of parliament acting to curtail the development of judge-made law.

An example of the role of Courts in developing case law

One example of judge-made law lies in the area of the law pertaining to personal injury through negligence. Over the last 75 years, judges have gradually made the duty that we each owe to avoid doing something that will injure someone else more and more strict. It used to be very difficult for a plaintiff to show that someone else was responsible for anything other than a very direct injury. The broadening of an injured person’s right to recover damages has come about mainly through judge-made law.