The Law Handbook 2024

2 NOTE The law in this chapter is current as at 1 September 2023. Sources of Australian law Today, law regulates almost every aspect of our daily life. There are several sources of this law. The dominant source is parliament, where elected politicians make laws. Judges also make law through their decisions in court cases. Local councils and public servants also make and administer laws. A range of people – like the police, Centrelink officers, council by-laws officers and transport police – administer and enforce our laws. These various sources of law fit together to create our legal system. Each part of the system – the courts, the parliament and the executive (ministers and public service) – has a separate role to play. In particular, the courts are independent of the parliament. This is one reason why judges are appointed for life. Australia has a federal system of government. There is the Commonwealth Parliament (in Canberra) and a separate parliament in each of the states and territories. All parliaments make laws. There are also two court systems. The federal court system comprises the Federal Circuit Court, Federal Court, Family Court and High Court. The state court system consists of Magistrates’, County and Supreme Courts. As well, there are a range of tribunals and boards that make decisions about individual disputes, but they do not have the same power as courts to ‘make law’. For example, in Victoria, the Victorian Civil and Administrative Tribunal ( VCAT ) provides user-friendly and affordable access to justice for civil matters. VCAT hears many cases every year. Parliament-made law Most law is parliament-made. The process to make laws is similar in both the federal and state parliaments. Laws made by parliaments are called statutes, Acts or legislation. A draft Act is called a Bill. A Bill is debated by parliamentarians and if it is passed by a majority in both Houses of Parliament it becomes an Act, and is therefore binding law. In addition to Acts of parliament, there are laws covering administrative details or other matters not easily dealt with in an Act. Parliament can delegate the power to make regulations, rules, ordinances or local laws to a public authority, a local council, a government minister, or a public servant. These types of laws that are made by the parliaments’ delegates are known as delegated legislation. The precise meaning of words and phrases in Acts and delegated legislation is sometimes difficult to understand. Courts are often involved in deciding the meaning of particular parts or words of an Act. A court’s interpretation of sections and words in an Act becomes part of the law and is known as judge- made law. For example, the law related to divorce is not wholly contained in the Family Law Act 1975 (Cth). It is found by looking at both the Act and the decisions that judges have made in court cases about the Act. Victorian Acts apply to those living in Victoria and to the courts and judges within Victoria. Commonwealth Acts apply to the whole of Australia and to the courts and judges handling Commonwealth or federal law. The AustralianConstitution (see below) sets out which parliament has responsibility for different aspects of government. Generally, judges cannot overrule or challenge an Act unless the Act is ‘unconstitutional’. This means it was beyond the power of the Commonwealth or state parliament to make that law in the first place. The courts can then declare the Act or parts of it invalid and of no effect. The High Court can also resolve disputes where Commonwealth and state laws clash. The famous Tasmanian dam dispute in 1983 is an example of this principle at work. The Tasmanian Government wanted to build a dam in a wilderness area. The federal government wanted to protect the wilderness area. The state parliament passed a law permitting the dam to be built. The federal government passed Where our laws come from 1.1 Contributor: Glen Ludbrook, Lawyer, Fitzroy Legal Service