Law-Making by Parliament and Courts (VCE SSCE Legal Studies): Revision Notes
Law-Making by Parliament and Courts
Introduction to law-making in Australia
Australia has two primary institutions responsible for creating and modifying laws: parliament and courts. Understanding how these bodies operate and interact is fundamental to grasping the Australian legal system. While parliament holds supreme law-making authority, courts also play a crucial complementary role in developing the law through their decisions in cases.
This dual system of law-making creates a dynamic legal framework where formal legislation and judicial decisions work together to address society's legal needs.
Parliament as a law-making body
The role of parliament
Parliament (also called the legislature) is the body with primary authority to create laws on behalf of Australian citizens. The legislature refers to the institution holding the main power to make laws. In Australia, there are multiple parliaments:
- State parliaments – Each state has its own parliament that creates laws applicable within that state
- Commonwealth Parliament – The federal parliament that makes laws applying across the entire nation
Parliament's position as the supreme law-making body means it can create or modify any law within the limits of its constitutional authority. This supremacy establishes parliament as the most powerful law-making institution in the Australian legal system.
Parliament's supremacy means it has the ultimate authority to make, amend, or repeal laws within its constitutional powers. This makes parliament the most powerful law-making body in Australia.
How parliament makes law
The law-making process begins when a bill is presented to parliament. A bill is a proposed piece of legislation that has not yet become law. It must progress through several formal stages before it can take effect.
Once a bill successfully passes through all required parliamentary stages, it receives royal assent. This is the formal approval and signing of the bill by:
- The Governor-General at the Commonwealth (federal) level, or
- The governor at the state level
After receiving royal assent, the bill becomes an Act of Parliament, also known as statute law or legislation. Statute law represents all laws created by parliament, distinguishing it from law made by courts.
Worked Example: From Bill to Act
Step 1: A bill proposing new workplace safety regulations is introduced to parliament
Step 2: The bill passes through required stages in both houses of parliament (reading, debate, amendments, voting)
Step 3: The bill receives royal assent from the Governor-General
Step 4: The bill becomes the Workplace Safety Act 2024 and is now enforceable statute law
Key characteristics of statute law
Statute law has several important features:
- It is written law, clearly documented and accessible
- It applies broadly to everyone within the relevant jurisdiction
- It can only be changed or repealed by parliament itself (or declared invalid by courts in specific circumstances)
- It takes precedence over common law when the two conflict
The written nature of statute law provides clarity and certainty, allowing citizens to know exactly what the law requires. This accessibility is a fundamental principle of the rule of law.
Courts as a law-making body
The primary role of courts
Courts (collectively known as the judiciary) have a different primary function compared to parliament. The judiciary refers both to judges as a group and to courts as an institution forming one of the three branches of government.
The main responsibilities of courts include:
- Applying existing statute law to resolve disputes
- Applying established legal principles from previous cases
- Hearing cases brought before them
- Interpreting legislation to resolve specific disputes
While these functions might suggest courts merely apply law rather than create it, judges in superior courts (the Supreme Court and High Court) possess significant law-making powers.
How courts make law
Judges in superior courts can create law in several ways:
1. Establishing new legal principles
When resolving cases, judges in superior courts may establish new legal principles that become binding on lower courts. This judge-made law is called common law (also known as case law). Common law develops through judicial decisions in actual cases, with each decision potentially creating new legal precedents.
Common law evolves organically through the accumulation of court decisions over time. Each precedent builds upon previous cases, creating a rich body of judge-made law that addresses situations parliament may never have anticipated.
2. Statutory interpretation
Statutory interpretation occurs when judges clarify the meaning of words or phrases in an Act of Parliament so the statute can be applied to the specific case before them. This process is essential because:
- Statutes cannot anticipate every possible situation
- Language may be ambiguous or unclear
- Circumstances change over time, requiring reinterpretation
When judges interpret statutes, their interpretation becomes part of the law and guides how that statute is applied in future cases.
Statutory interpretation is not optional – judges must interpret legislation whenever its application to a specific case is unclear. These interpretations become binding precedents that shape how the law operates in practice.
Worked Example: Statutory Interpretation in Action
Imagine a statute prohibits "vehicles" in public parks. A judge must determine whether this includes:
- Bicycles? (likely yes)
- Wheelchairs? (likely no – different purpose)
- Remote-controlled cars? (requires interpretation)
The judge's interpretation becomes part of how the statute is understood and applied in future cases involving similar circumstances.
3. Declaring laws invalid
Courts hold the power to declare any law made beyond parliament's constitutional authority as invalid. This ensures parliament operates within its proper law-making boundaries.
The complementary relationship
Parliament and courts work together in a complementary relationship:
- Parliament creates broad statutes addressing societal needs
- Courts apply these statutes to specific cases and fill gaps through common law
- Courts interpret parliamentary statutes when their meaning is unclear
- Parliament can override court-made common law by passing new legislation
This relationship ensures the legal system remains both flexible and accountable.
This complementary relationship creates a dynamic balance: parliament provides the framework through legislation, while courts add detail and adapt the law to specific circumstances. Neither institution operates in isolation – they work together to develop a comprehensive legal system.
The need for law reform
Why laws must change
Law reform is the ongoing process of updating and modifying the law to ensure it remains relevant and effective. Laws serve crucial functions in society:
- Protecting society and enabling orderly functioning
- Providing guidelines for acceptable behaviour
- Preventing and minimising conflict within the community
For laws to fulfil these functions effectively, they must meet certain criteria. Among other requirements, laws should be:
- Relevant to current societal conditions
- Acceptable to the majority of people
Without these qualities, citizens may not respect or obey the law, undermining its effectiveness.
Outdated laws lose legitimacy. When laws fail to reflect current values or circumstances, people are less likely to comply with them voluntarily. This erodes respect for the legal system and makes enforcement more difficult and costly.
Factors driving law reform
Several factors necessitate regular law reform:
1. Changing community values
As society's views, values, and attitudes evolve over time, laws must adapt accordingly. What was acceptable or appropriate in previous decades may no longer reflect current community standards.
Worked Example: Community Values and Law Reform
Historical example: Laws regarding same-sex relationships have undergone significant reform in Australia as community values evolved. What was once prohibited became decriminalised, then recognised through civil unions, and eventually equal marriage rights were established, reflecting changing societal attitudes.
2. Technological advancement
New technologies create situations that existing laws never anticipated. Regular law reform ensures legislation keeps pace with technological change and addresses emerging issues.
Technology often outpaces legislation. By the time parliament enacts a law addressing one technology, newer innovations may have already created fresh legal challenges. This creates an ongoing need for law reform to keep the legal system current.
3. Changing living conditions
Social, economic, and environmental conditions change constantly. Laws must evolve to address new challenges and circumstances facing the community.
4. Enhanced protection
Law reform may be necessary to provide better protection for the community or specific groups within society.
Methods of influencing law reform
Individuals and groups can influence law reform through various means:
- Participating in demonstrations – Public protests drawing attention to legal issues
- Signing petitions – Formal requests to parliament for law changes
- Taking court action – Challenging unjust laws through the legal system
- Media engagement – Using media platforms to raise awareness and build support
- Law reform bodies – Specialised organisations that research and recommend legal changes
- Constitutional change – Australian people can vote to amend the Constitution through referendums
Democratic participation in law reform ensures the legal system remains responsive to community needs. Citizens have multiple avenues to advocate for change, from grassroots activism to formal legal channels.
Exam guidance
Exam Success Strategies
When answering questions about law-making:
For "distinguish" questions: Clearly identify the key differences between concepts. For example, when distinguishing between statute law and common law, explain that statute law is made by parliament through a formal legislative process, while common law is made by judges through decisions in cases.
For "outline" or "explain" questions: Provide clear, structured explanations of processes. When explaining royal assent, describe both what it is and its significance in the law-making process.
For "analyse" or "evaluate" questions: Consider strengths and limitations. When analysing the complementary relationship between parliament and courts, discuss both the benefits of this system and any potential tensions or challenges.
Remember!
Key Points to Remember:
-
Parliament (legislature) is the supreme law-making body that creates statute law through bills that receive royal assent
-
Courts (judiciary) primarily apply existing law but superior courts can make common law through case decisions
-
Statutory interpretation allows judges to clarify the meaning of legislation when applying it to specific cases
-
Law reform is essential to ensure laws remain relevant as community values, technology, and living conditions change
-
Parliament and courts have complementary roles in law-making – parliament creates broad legislation while courts apply and develop law through cases
-
Both institutions work together to ensure the legal system serves society effectively and adapts to changing needs
Key terms to remember
Essential Terminology:
- Legislature: Parliament, the body with primary law-making power
- Bill: A proposed law before it receives royal assent
- Royal assent: Formal approval that transforms a bill into an Act of Parliament
- Statute law: Law made by parliament (Acts of Parliament/legislation)
- Judiciary: Courts and judges as an institution
- Common law: Law made by judges through case decisions (also called case law)
- Statutory interpretation: Process of judges clarifying statutory meaning
- Law reform: Updating and changing law to maintain relevance and effectiveness