Chapter 3: How law is made

The most important role of parliaments is to make laws for their state, territory or the Commonwealth.

The parliamentary process of passing of statutes, known as ‘Acts’, deals with regulating various aspects of our society. For a detailed explanation of the process of law making see The Legislature.

Delegated legislation

Often an Act of Parliament will include parts that give power to a Government Minister or another member of the executive to create a law that deals with particular aspects of that Act, usually to do with the details of how the Act operates. There are different ways in which delegated legislation becomes law, depending on whether it is made under an Act of the Commonwealth Parliament or one of the state or territory parliaments. For more information, see delegated legislation.

Common law

The common law system of law making came before the parliamentary system. It began in England in the 11th century with the establishment by William the Conqueror, King of England, of the Kings Courts. The courts, in deciding local disputes, applied local customs. Over time, these customs became rules and were the basis for later courts to make decisions on similar disputes. The common law changed and developed as different types of disputes developed and different customs evolved. The common law was the main body of law until the 17th century when the British Parliament increased its law-making power and activity (this resulted in more laws coming into being through Acts of Parliament). Common law is often referred to as ‘judge-made’ law.

Common law is separate from statute law and does not rely on there being any Act of Parliament underpinning it. While statute law is the main source of law in Australia, the common law remains a vital and developing part of our legal system. Statute law always prevails over common law if there is a conflict.

The common law relies on the principle of precedent. This means that courts are to be guided by previous decisions of courts, particularly courts that have higher authority. So, the extent that common law is written down is that it is found in decisions of courts. This means that it can often be difficult to find the common law that applies to a situation, as it is not in one single decision of a court, but rather different parts of it are set out in different decisions.

Impact of international law on Australian law

Increasingly, laws in Australia and other countries reflect international law. This is because of the much greater level of contact between countries. In some areas of international law, the influence is very large.

For example, Australian laws about what can and can’t be imported into this country have to be consistent with international trade law. International trade laws can also affect what governments in Australia are allowed to make rules about. For example, an Australian government cannot generally make laws that give preference to the purchase of Australian products.