What is the role of the Courts in making and enforcing the law?

Contributed by Hannah Lee and current to March 2022

Judge made law

The Courts make and enforce the law every time they hear a case and are required to clarify the meaning of a law (see Making the law in Commonwealth Parliament).

There is sometimes uncertainty about what a law means. This is because when Parliament drafts a law it cannot anticipate every possible scenario which might call that law into question. For example, if the Park Users Act 2018 bans ‘vehicles’ in parks, it might be assumed that bicycles can be ridden through a park, because ‘vehicles’ relates to cars, motorbikes or trucks. When you do ride your bicycle through the park, and a police officer fines you for breaching the Park Users Act 2018, you might ask: ‘is my bicycle really a ‘vehicle?’. Does the Park Users Act apply to me in this instance?’ Your question might then become, ‘what about wheelchairs, scooters, prams, walking frames or skateboards? As these all ‘vehicles’ too?’.

When the judge decides the answer to the question ‘is a bicycle a ‘vehicle?’, he or she first interprets the Act using, among other things, the first and second reading speeches to ascertain the purpose of the provision). If the Park Users Act remains unclear, the judge will also consider the common law, and secondary resources, such as academic research, to determine whether a bicycle is a ‘vehicle’.

By considering the common law, the judge can consider wider common law principles, public expectations and legal precedent to guide his/her decision. The judge might also consider whether a certain interpretation of the law is practical.

This means the judge considers a range of factors when deciding the outcome of the cyclist’s case. The judge might decide that because the Park Users Act and legal precedent are very clear that bicycles are prohibited ‘vehicles’ and order the cyclist to pay the fine. Alternatively, the judge might decide that a bicycle is not a ‘vehicle’ because common law principles overwhelmingly indicate that civil liberties, such as the freedom to ride a bicycle through a park, should not be unnecessarily curtailed. He or she might also decide that, because so many cyclists must, by necessity, ride their bicycles through parks to arrive at their destinations and, after considering other Acts, which encourage cycling, it is simply absurd that the government would intend to ban bicycles in parks.

This bicycle question is central to the one of the longest-running debates in common law history. It was first posed by Professor H.L.A. Hart in 1951 (See, Further Resources).

Whatever the judge’s decision, it contributes to the common law and should be considered by judges in future cases. To enable this to occur decisions are often published in law reports or on courts’ websites. Most law reports contain the names of the parties, a summary of the facts, the reasons for the judge’s decisions and the order of the court. For example, Commonwealth v Anderson [1960] HCA 85; (1960) 105 CLR 303 means that the proceedings were between the Commonwealth and Anderson and that the High Court’s decision was published in the ‘Commonwealth Law Reports’ in 1960 (report 105, commencing at page 303) (see Learning More About the Law).

Enforcing the law

The courts have a significant role in enforcing the law because they decide the consequences for those who disobey the law.

In criminal law, judges determine the penalties for breaking the law. For example they might sentence an offender to a gaol term.

Judges are also required to issue a range of permissions to executive agencies to allow them to enforce the law. These permissions include allowing the police to tap someone’s phone, or

authorising child protective services to remove children from their homes. For more information about criminal law, see the Criminal Law chapter.

In administrative law matters, the court can enforce the law by finding that the decision in question is void. The court can also quash the decision, restrain the decision-maker from enforcing its decision, order the decision-maker to do something, order the decision-maker to re-make its decision according to law or declare the rights of the parties. For more information about administrative law, see the Challenging or Complaining about Government Decisions, Freedom of Information and Privacy chapters.

In civil law matters, the courts can award damages or order the losing party to do (or not do) something. Most of the handbook chapters cover civil law areas, including Defamation, Bankruptcy Law and Elder Law.

As the final court of appeal in Australia, the High Court of Australia also has a role in enforcing the law. This means that a case cannot be further appealed after a High Court decision. An example of the High Court enforcing a civil law action in negligence is Strong vs Woolworths [2012] HCA 5. In that case the High Court decided that because Woolworths failed to remove a potato chip from its floor, it was required to pay Ms Strong $580,299 in damages because she broke her back when slipping on the chip. Unfortunately for Woolworths, because the case had reached the High Court, they had no further opportunities to dispute the damages awarded to Ms Strong (see Courts and Tribunals).