Making our laws

lawsThere are many different laws to regulate the many different fields of human activity. Humans are complex and diverse, so the laws that address human activity and conduct are also diverse. Australian society alone is regulated by thousands of different laws, from the Constitution down to local government by-laws about dog registration, parking and littering. These laws are not just concerned with individual conduct. They also provide a means for resolving disputes between parties, such as commercial or contractual disputes, disagreements between employers and employees, disputes between neighbours, family separations and child custody matters. The law is a broad field of study and professional activity, with many areas of focus and specialisation.

There are two sources of law in Australia: the parliaments and the courts. Parliament is considered a ‘sovereign’ or ‘supreme’ institution because it is democratically elected and represents the Australian people. Because of its democratic origins, parliamentary law is generally considered a higher form of law. A parliament can pass new laws simply because it sees a need to do so. An example of this is the November 2011 legislation which enacted the controversial carbon tax. The parliament can also amend or abolish previous legislation within its jurisdiction. An example of this is the replacement of the former Howard government’s controversial Workchoices legislation in 2007. Parliaments can also legislate to change or overturn any law made by a court or subordinate authorities.

The basics of Australian parliaments as lawmaking bodies are:

  • There is one Federal, six State and two Territorial parliaments in Australia. All of these parliaments are formed by general elections, held regularly every three to four years.
  • The law-making powers of each parliament are defined and limited by constitutions. Each parliament is only empowered to pass laws within its jurisdiction.
  • When a proposed law is before the parliament – that is, while it is being drafted and debated – it is called a bill. A bill does not become a law until it is passed by the parliament and signed by the governor or governor-general.
  • Once passed these bills become acts of parliament, statutes or legislation. These remain in force until they are repealed (abolished) by the same parliament.
  • Parliaments can also delegate their authority to subordinate authorities, such as local councils and government agencies. These bodies can make their own laws or regulations, which are known as delegated legislation.

The courts are also active in making and changing laws. Since it is impossible for parliaments to predict every case or legal argument that might arise before a court, it is also impossible for parliaments to cover every possible scenario or likelihood in legislation. The courts must therefore read and interpret laws made by parliaments and subordinate authorities, and then use these interpretations to reach decisions. In doing so, the courts can make or change the law through the doctrine of precedent. Courts will be the focus of subsequent Areas of Study, however, the basics of court-made law include:

  • There are numerous courts in Australia, with separate court hierarchies for Federal and State jurisdictions. Some courts are also specialist courts that concentrate on specific kinds of cases.
  • Courts hear and determine matters that are either prosecuted by the Crown as criminal cases, brought by litigants as civil cases, or heard as appeals against the decisions of other courts.
  • Courts are bound to follow legislation. They must read, interpret and apply the words contained in legislation passed by the parliament in their jurisdiction.
  • Courts then make decisions on the real-life cases before them, following existing precedents or setting new ones.
  • Law made by the courts is referred to as common law or case law.

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