The Purposes and Sources of Law (VCE SSCE Legal Studies): Revision Notes
The Purposes and Sources of Law
What are laws?
Laws are enforceable legal rules created by recognised legal authorities, primarily parliament and the courts. These rules form the foundation of how society functions by clearly defining which behaviours and actions are considered acceptable or unacceptable for individuals within the community.
Laws serve society by establishing clear boundaries that everyone must observe. This creates predictability and order, allowing people to understand what is expected of them and what they can expect from others. Importantly, laws apply equally to every member of society, regardless of their position, wealth or status. This equal application is a fundamental principle of the legal system.
The principle of equal application means that laws bind everyone in the same way—from ordinary citizens to the most powerful government officials. No one is above the law, and everyone is entitled to the same legal protections and must follow the same legal obligations.
When someone breaches (breaks) the law by committing an unlawful offence—such as theft, assault or stalking—enforcement authorities like the police can investigate and charge them. If found guilty, courts impose penalties known as sanctions or sentences. The severity of sanctions depends on the seriousness of the offence. For less serious matters, courts may impose a fine, requiring the offender to pay money to the state. For more serious crimes, courts may order imprisonment, removing the offender from society for a specified period by placing them in prison.
Purposes of laws
Laws exist to serve several critical functions that benefit both individuals and society as a whole. Understanding these purposes helps explain why certain laws exist and how they contribute to a functioning, fair community.
Laws serve three primary purposes in society:
- Achieving social cohesion - creating a unified, cooperative community
- Protecting society and vulnerable people - safeguarding those who need it most
- Establishing and protecting human rights - ensuring fundamental freedoms for all
Achieving social cohesion
One primary purpose of laws is to achieve social cohesion—the willingness of members of society to cooperate with each other in order to survive and prosper together. By establishing clear standards for acceptable conduct, laws create a framework within which people can live together in an orderly, unified and peaceful manner.
When everyone understands and follows the same rules, it reduces conflict and unpredictability. For example, traffic laws establish how drivers should behave on roads, allowing thousands of people to travel safely each day without chaos.
Traffic Laws as Social Cohesion
Speed limits provide an excellent example of how laws achieve social cohesion. By regulating vehicle speeds, these laws protect both drivers and pedestrians. Without such rules, roads would become dangerous and unpredictable, making it difficult for society to function effectively. Everyone following the same speed regulations creates predictability and safety for all road users.
Protecting society and vulnerable people
Laws play a vital protective role by safeguarding society's safety and security. This protection extends particularly to the most vulnerable members of our community, including children, elderly people and those unable to protect themselves adequately. Laws prohibit harmful behaviours such as violence, fraud and neglect, creating a safer environment for everyone.
Establishing and protecting human rights
Laws establish and protect fundamental human rights—basic entitlements that every person should enjoy. These rights recognise the inherent dignity and worth of every individual. Key human rights protected by law include:
- The right to life
- The right to live free from discrimination
- The right to freedom of expression
- The right to freedom of movement
When these rights are violated, individuals can seek legal remedies through courts, tribunals and complaints bodies, ensuring that rights protections have practical effect. This enforcement mechanism is what transforms abstract rights into real, enforceable protections that people can rely upon.
Sources of law
The term "sources of law" refers to the legal bodies or authorities that create laws, and the types of law they produce. In Australia, there are two main sources of law that students must understand clearly.
The Two Main Sources of Australian Law
Australia's legal system has two fundamental sources of law:
- Statute law - law made by parliament (also called legislation or Acts of Parliament)
- Common law - law made by courts through their decisions in cases (also called judge-made law or case law)
Understanding these two sources and how they interact is essential to understanding how Australia's legal system operates.
Statute law
Statute law (also known as legislation or Acts of Parliament) is law made by parliament. Parliament holds the position of supreme law-making authority in Australia, meaning it has the ultimate power to create, amend and repeal laws. This supremacy means that when parliament passes a law, it generally takes precedence over other forms of law.
Parliamentary structure
Both the Commonwealth Parliament (sitting in Canberra) and the Victorian Parliament (sitting in Melbourne) are bicameral parliaments—they each have two houses or chambers. This two-house structure provides checks and balances in the law-making process, requiring proposed laws to be examined by two separate groups of elected representatives before becoming law.
The Parliament of Australia (also called the Commonwealth or Federal Parliament) consists of:
- House of Representatives (the lower house)
- Senate (the upper house)
The Victorian Parliament consists of:
- Legislative Assembly (the lower house)
- Legislative Council (the upper house)
Each house contains members of parliament elected by citizens during general elections, ensuring democratic representation. Additionally, each parliament includes a representative of the King who acts as head of state on his behalf in Australia or Victoria.
There are nine parliaments in Australia: one Commonwealth Parliament, six state parliaments and two territory parliaments. Each parliament has the power to make laws within its area of responsibility, creating a complex but comprehensive legal framework across the country.
How statute law is made
For a proposed law (called a bill) to become an Act of Parliament in either the Commonwealth or Victorian Parliament, it must successfully pass through several stages in a formal process:
- The bill is introduced and debated in one house of parliament
- If approved by that house, it moves to the second house for separate debate and approval
- Once both houses have approved the bill, it is sent to the King's representative
- The representative grants royal assent—the formal signing and approval that transforms the bill into an Act of Parliament (statute)
This multi-stage process ensures that proposed laws receive thorough consideration and have broad parliamentary support before becoming legally binding on society.
Example of new Victorian statute law
Worked Example: The Creation of New Statute Law
In August 2022, the Victorian Parliament demonstrated the statute law-making process by passing the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 (Vic).
What the law prohibits:
- Knowingly distributing an intimate image of another person without their consent
- Threatening to distribute such images
- Publishing, displaying or sending such images to any other person
The sanction:
- Anyone who breaches this law faces up to three years' imprisonment
Why this matters: This example demonstrates how parliament responds to emerging social issues and changing community values by creating new laws. The rise of digital technology and social media created new ways for people to harm others, and parliament responded by creating specific legal protections.
Common law
Common law (also known as judge-made law or case law) is law made by courts through their decisions in cases. While the primary role of courts is to resolve disputes by applying existing laws to cases before them, courts also have a secondary law-making function that occurs as part of their case determinations.
The court system
Australia's legal system includes federal, state and territory courts. The three main federal (Commonwealth) courts are the High Court of Australia, the Federal Court, and the Federal Circuit and Family Court.
Victoria's main courts include:
- The Supreme Court (with two divisions: the Trial Division and the Court of Appeal)
- The County Court
- The Magistrates' Court
Specialist Courts
Additionally, there are specialist courts such as the Coroners Court and Children's Court, which hear very specific types of cases. Specialist divisions also exist within the main courts. One notable example is the Koori Court, which operates within the Magistrates' Court and County Court to sentence Koori offenders in a way that reduces the inequality First Nations Victorians experience when dealing with the justice system.
Court hierarchy
Courts are arranged in a court hierarchy—a ranking system from lowest to highest based on the seriousness and complexity of matters they handle. Higher courts (such as the Supreme Court and High Court) deal with more serious and complex cases, while lower courts (such as the Magistrates' Court) handle less serious matters and everyday legal issues.
Understanding the hierarchy is essential because it determines which court decisions have greater authority and how the doctrine of precedent operates. Decisions made by higher courts bind lower courts, ensuring consistency and predictability in how laws are applied across the legal system.
Victorian court hierarchy (from lowest to highest):
- Magistrates' Court of Victoria
- County Court of Victoria
- Supreme Court of Victoria (Trial Division)
- Supreme Court of Victoria (Court of Appeal)
- High Court of Australia (federal court that can hear appeals from Victorian courts)
How common law is made
The main role of courts is to resolve disputes. To do this, courts ordinarily apply existing laws (such as statutes made by parliament) to the facts in cases brought before them and decide cases based on those laws. However, courts also make law as part of their dispute resolution function. This law-making occurs in two main circumstances:
1. Through statutory interpretation
When applying statute law to a case, judges may need to interpret the meaning of words or phrases in the Act. This process of statutory interpretation involves giving meaning to legislative language so it can be applied to the specific facts of the case before the court. The interpretation a judge makes becomes part of the law and may guide how that statute is understood in future similar cases.
Worked Example: Statutory Interpretation in Action
Case: Wright v McMurchy (2011), Supreme Court of Western Australia
The Issue: The Supreme Court had to interpret the words "public place" in a statute. The case involved a taxi driver charged with using his mobile phone to take images of a female passenger while she sat in the front seat of his taxi.
The Argument: The driver argued he had not broken the law because the conduct did not occur in a public place.
The Court's Reasoning:
- The Court examined past cases that had interpreted "public place"
- It found that a person in a motor vehicle located in a public place is generally treated as being in a public place
- The Court noted that the taxi's interior could be seen from outside
- The Court noted that the passenger was a member of the public
The Decision: The Court held that the conduct in the taxi was conduct that occurred in a public place. The accused was convicted (found guilty) and his appeal was dismissed.
The Impact: This interpretation created a precedent about what constitutes a "public place" that other courts can follow in similar future cases, expanding the understanding of this statutory term.
2. By deciding new issues
Courts make common law when they decide cases involving new issues where:
- No legislation exists covering the situation, or
- A previous legal principle needs expanding or adapting to apply to new circumstances
When a higher court (such as the Supreme Court or High Court) decides a case that is the first of its kind and establishes or creates a legal principle in doing so, it is setting a precedent. A precedent is a principle established in a legal case that should be followed by courts in later cases where the material facts are similar. Precedents can be either binding (must be followed) or persuasive (may be followed), depending on the relationship between the courts in the hierarchy.
The Importance of Precedent
Precedents can also be established when a court interprets a statute in a way it has not been interpreted before. The doctrine of precedent ensures that laws made by courts remain consistent and predictable.
When people can anticipate how courts will likely decide cases based on previous decisions, they can:
- Make informed choices about their conduct
- Understand their legal rights with certainty
- Have confidence in the fairness of the justice system
This consistency is fundamental to maintaining public confidence in the justice system.
The rule of law
The rule of law is a foundational principle of Australia's legal system. It means that everyone in society—individuals, groups, government officials and even those who make laws—is bound by law and must obey it. No matter a person's authority, position or power, they remain subject to legal rules. This includes members of parliament, government leaders, judges and public officials. Even the people who make laws are bound by them.
The Core Principle of the Rule of Law
The rule of law establishes that law—not individual power—is supreme in society. This means:
- No one is above the law, regardless of their position or authority
- Even those who make laws must obey them
- Government officials and powerful institutions cannot act arbitrarily
- Everyone is entitled to the same legal protections and obligations
The rule of law also means that laws should be fair, clear and reasonable so that people are both willing and able to obey them. When laws are unclear, unfair or impossible to follow, they undermine respect for the legal system and cannot effectively achieve their purposes.
Several principles examined throughout Unit 2 seek to uphold the rule of law, including:
- The ability of all people who have suffered a breach (breaking) of their rights to use courts, tribunals and complaints bodies to seek civil remedies
- The protection of human rights in Australia through various legal mechanisms
- The power of courts to review and potentially challenge laws made by parliament
These mechanisms ensure that even those with significant power cannot act arbitrarily or ignore legal obligations. They provide avenues for ordinary people to hold powerful institutions accountable, reinforcing the principle that law—not individual power—is supreme in society.
Remember!
Key points to remember:
- Laws are enforceable rules made by parliaments or courts that establish boundaries of acceptable behaviour and achieve social cohesion
- The main purposes of laws are to achieve social cohesion, protect society and vulnerable people, and establish basic human rights
- There are two main sources of law in Australia: statute law (made by parliament) and common law (made by courts)
- Parliament is the supreme law-making body; for a bill to become an Act, it must pass through both houses of parliament and receive royal assent
- Courts make common law through statutory interpretation (giving meaning to words in statutes) or by deciding new legal issues and setting precedents that guide future cases
- The rule of law means everyone, including government officials and law-makers, must obey the law, and that laws should be fair and clear
Highlighted key terms:
- Laws: enforceable legal rules made by legal authorities such as parliament or courts
- Parliament: a formal assembly of elected representatives that makes laws
- Social cohesion: the willingness of society members to cooperate with each other to survive and prosper
- Sanction: a penalty imposed by a court on a person guilty of a criminal offence
- Fine: a sanction requiring the offender to pay money to the state
- Imprisonment: a sanction removing the offender from society for a stated period
- Statute law: law made by parliament (also called Acts of Parliament or legislation)
- Bicameral parliament: a parliament with two houses or chambers
- Royal assent: formal signing and approval of a bill by the Governor-General or governor, after which it becomes an Act
- Common law: law made by judges through decisions in cases (also called case law or judge-made law)
- Court hierarchy: the ranking of courts from lowest to highest according to seriousness and complexity of matters
- Statutory interpretation: the process by which judges give meaning to words or phrases in an Act so it can be applied to a case
- Precedent: a legal principle established in a case that should be followed by courts in later similar cases
- Rule of law: the principle that everyone must obey the law, and that laws should be fair and clear
- Breach: the breaking of or failure to comply with a duty or obligation
Critical frameworks:
- Parliament structure: Commonwealth (House of Representatives + Senate); Victoria (Legislative Assembly + Legislative Council)
- Victorian court hierarchy (lowest to highest): Magistrates' Court → County Court → Supreme Court (Trial Division) → Supreme Court (Court of Appeal) → High Court of Australia
- Two ways courts make common law: (1) statutory interpretation when applying Acts to cases, (2) deciding new issues where no legislation exists or existing principles need expanding