The Law

What is the Law?

In the Australian legal system, laws come from two principal sources:

• common law made by judges in the courts;
• legislation made by politicians in parliaments both state and federal, or by local government. Local government legislation is usually called ‘subordinate legislation’ or ‘by-laws’

Legislation, also known as statute or Acts, is the primary source of law, and it comes from the parliament. But judges in court still influence how legislation applies. For example, an Act may apply to ‘the control of all domestic animals’. A person may own a ferret for rabbiting purposes. A judge will be responsible for determining whether the Act applies to ferrets, or this particular ferret.

Law derived from international sources also plays a role in areas such as human rights, trade and environmental protection. There is no requirement that international laws be made into law in Australia. International and domestic law are entirely separate systems. However, international law increasingly represents international moral standards, or practical means of regulating a global economy. In cases such as these, it is often common sense for the Australian government to bring international law into Australian law.

An interesting and important question is, why do Australians accept their laws? There are a number of ways of looking at this question. Some philosophers have said that a ‘social contract’ ties us all to the law; that we agree to the laws in return for the protections of the State. Other philosophers say that it is the government’s monopoly on violence that binds us to the law. The question of what makes laws ‘legitimate’ is something worth thinking about.

The Constitution

Australian parliaments's power to enact legislation comes from their constitutions. Both the States and the Commonwealth have constitutions. A constitution creates the parliament and defines its basic procedures. To achieve political stability a constitution is normally entrenched, which means that it is difficult to change, though this is not the case with some of the State constitutions such as the Tasmanian one. This can simply be changed by an Act.

Where the political system is a federal one, such as Australia's, a key function of a national constitution is to divide the power to make laws between the two levels of government. Before federation in 1901 Australia consisted of six separate self-governing colonies. Federation meant that these six colonies agreed to give up some of their powers to form a central government which would deal with certain specific issues affecting the new nation as a whole. Therefore the Commonwealth parliament can only make laws where it is specifically given power to do so by the Australian Constitution.

The subjects on which the Commonwealth can legislate are listed in section 51 of the Australian Constitution. These include such things as defence, currency, foreign (‘external’) relations, banking, corporate bodies, social security and industrial disputes affecting more than one state. Commonwealth powers to legislate in these areas are concurrent with the powers of the States. This means that State legislation will remain in effect until the Commonwealth exercises its power to legislate in a particular area. Once the Commonwealth does this, any State legislation which is inconsistent with Commonwealth legislation can be declared invalid. This must be done by challenging the legislation in the High Court.

The Common Law

Where the Common law Comes From

The common law has a long history. It originated in England during the reign of King Henry II (1154—89). Before that time, English law, like the law in other parts of the world, consisted of local customs which varied from place to place. To consolidate his grip on his kingdom, Henry II introduced a system of centralised administration of ‘the King's law’ by ordering judges to go ‘on circuit’ to the towns and villages of England to deal with disputes among his subjects. These judges developed a ‘common’ set of rules and procedures which gradually came to be written down by their clerks and the lawyers who worked in these courts. This written body of law became known as ‘common law’.

Common law was supplemented by law administered by the church, that is, ‘ecclesiastical law’. This was the law governing important aspects of human relationships such as birth, death and marriage. This law has now been almost entirely replaced by legislation. The possibility of any church administering law in Western societies is a distant one. Whilst religion may influence policy and broader societal trends, there is a traditional separation between church and state in common law countries, such as Australia, England, and Canada.

Until well into the nineteenth century, in both England and Australia, the common law continued to be the main source of law. Society was able to function reasonably well with little legislation. However, with the industrial revolution and the massive social changes it brought in its wake, there was a need for increased government intervention in the financial relations between people. Changing social attitudes also meant that the state was called upon to regulate practical issues that were once the province of the church or social standards. This included changes such as women’s rights to property, the vote, and divorce. There was also a revolution of the means of communication, which provided the means to do this. From the 1830s onwards, the making of laws by parliament became the key instrument for intervention and legislation quickly became the dominant source of law.

The common law continues to be the main source of law only in the diminishing areas of human activity unregulated by legislation. For instance, until recently the law of torts (civil wrongs) was mostly common law, though with the Civil Liability Act 2002 (Tas) and important legislative inroads such as compulsory motor accident insurance and workers compensation legislation, the common law is less influential.

Until 25 years ago the law of contract, that is, the law which enforces business transactions, was almost wholly common law. But, because judges found it too difficult to develop principles of common law to protect consumers, parliaments had to step in with legislation. Today legislation such as the federal Consumer Law have modified the common law of contract to create such protection. But even where legislation prevails, the common law continues to play an important function in the interpretation of legislation. There are also examples of legislation incorporating common law principles, such as with the Civil Liability Act 2002, which includes the common law tests for breach of duty.

Interpreting the Common Law

A major difficulty with the common law is its uncertainty. This is produced by different courts reaching different interpretations of the law in similar cases or judges reaching the same conclusion for different reasons or different judges reaching different conclusions in the same case. In the latter instances, it will be the opinion of the majority of judges which will decide the outcome of the case. Uncertainty is unavoidable in a rapidly changing society. Although it means unpredictability and surprises, it is the price that has to be paid for maintaining the adaptability and fairness of the law.

Judges try to avoid uncertainty in the law by adhering to the doctrine of precedent. The doctrine of precedent says that judges should follow legal rulings from previously decided cases. Thus, where identical facts occur in two cases, the judge should follow the decision in the earlier case. That case is said to create a ‘precedent’. Of course, it is very rare for cases to have identical facts. This means that if a judge believes that a difference between facts is more important than a similarity, the judge can ‘distinguish’ between the old and new decisions. The precedent will not be followed and a new precedent will be created, but both will be influential. A court should always give reasons for its decision. In this way the courts will try and avoid unpredictability in the law by developing a consistent body of law.

Some of the rules associated with the doctrine of precedent are as follows.

• A court's decision in each case is binding on the parties to that case.
• If there is an avenue of appeal or review against a decision, and it is not made within the time limit, the case is settled and cannot be re-opened.
• If either side appeals to a higher court within the time limit, the higher court can affirm or overrule the lower court's decision.
• There may be an avenue of appeal to a higher court still and in this case that higher court can affirm or overrule the original court's decision. The decision of the highest court is final.
• Lower courts must follow decisions of higher courts, but only if they are in the same hierarchy. This means that a decision of a Supreme Court in one State will not be binding on the decisions of a lower court or a Supreme Court in another State. Such decisions will only be ‘persuasive’, that is, they can be used to guide the decision of a court in another State. The same applies to decisions of courts outside Australia. If a case is unusual or difficult, Australian courts may look to overseas decisions in England, New Zealand, Canada and the United States or even the European Union for guidance in deciding a case.
• The decisions of the High Court of Australia are binding on all Australian courts and tribunals.
• Courts are not bound to follow their own previous decisions but will usually do so in the interests of achieving consistency. Only if a court comes to the view that a previous decision is clearly wrong will it come to a different decision. The most frequent reason will be that a previous decision is an old one and circumstances have changed.

Courts have also developed a specialised set of rules for interpreting legislation. Sometimes where the Court’s interpretation of legislation causes problems, parliament will intervene by passing legislation to ‘clarify’ the law. Parliament will sometimes also pass legislation to bypass politically unwelcome consequences of judicial decisions.

Legislation

How legislation is made

Legislation usually originates as an idea for solving a social problem, promoting some desired government policy or generating government income. Sometimes law reform bodies will provide the inspiration for such ideas, sometimes a government department, sometimes an independent member of parliament, or sometimes they will come from the policy platform of the party in power. The idea is usually considered by the government in federal or state cabinet before it becomes the subject of public debate, though it can originate from an individual member of parliament as a Private Member’s Bill. Once the government has decided that legislation is necessary to give effect to the idea, instructions will be forwarded to the parliamentary drafting department to prepare a Bill.

A Bill is a proposed Act. Once a Bill is introduced into parliament, it will have to go through three readings in each of the two houses of parliament (except in Queensland which has no upper house). In the case of a federal Bill it will be considered by the House of Representatives and the Senate. In the case of a Tasmanian Bill, it will be considered by the House of Assembly and the Legislative Council. Serious parliamentary debate will take place at the ‘second reading’ stage. Amendments to a Bill are often made at this stage. It is also increasingly common for important or controversial Bills to be considered by ‘committees’ of the Senate or Legislative Council. Amendments to a Bill will often result from this process.

Before a Bill becomes an Act it must be given assent by the Queen's representative. In the case of a state Bill, the Governor gives the assent, and in the case of a commonwealth Bill, it is the Governor-General. This process is a remnant of the fact that federal and state parliaments are still formally subject to the Crown.

The Act must then come into effect, that is, actually become law. Sometimes the Act will say that it comes into effect on assent. At other times the Act, or different parts of the Act, will come into effect when ‘proclaimed’ on a particular day. This is done by a notice in the Commonwealth or State Government ‘Gazettes’. There may sometimes be years of delay in an Act coming into effect because the government becomes unsure about the Act, funding is lacking or the detailed administrative arrangements have to be made for its implementation.

An Act may amend another Act. It will have the word ‘Amendment’ in its title. Some original Acts are amended many times. For instance the Criminal Code Act 1924 (Tas) has seen many changes since 1924.

An Act may empower a public authority, a local council, a minister controlling a government department, or a public servant, to make Regulations, Rules, Ordinances, or By-laws. These laws are collectively known as ‘delegated legislation’ because Parliament has ‘delegated’, or given, its law-making power to another person or body. Parliament delegates its power for a number of reasons. Obviously it is much quicker for a parliament to lay down general principles in an Act and leave the day-to-day details to be worked out by those who will administer the law. These day-to-day details may need to be made, altered or repealed quickly, rather than through the lengthy process of making and passing legislation. Finally, delegated legislation allows for the administrator or enforcer to be a specialist or expert in some particular area.

Acts of parliament are binding on all courts and judges. Judges cannot over-rule an Act, unless an Act is unconstitutional, that is, beyond the power of the Commonwealth or State parliament which passed the Act. It is the constitutional role of the High Court of Australia to declare that an Act, or part of it, is invalid and of no effect where it is in breach of the Australian Constitution. It is very rare for state legislation to be in breach of state constitutions since there is no practical limit on the powers of states to legislate other than the Australian Constitution.

Judges, and in many cases special tribunals, also have wide powers to review decisions made under legislation and delegated legislation by ministers, officials and administrative bodies. These powers of review come from both legislation such as the Commonwealth Administrative Decisions (Judicial Review) Act 1977 (Cth) and the common law. This important area of law is known as Administrative Law. Freedom of information is a necessary adjunct of this area of law. As government functions are increasingly privatised, there is a question as to the extent to which the principles of administrative law apply to private bodies carrying out those functions.

Legislation vs Common Law

Legislation is law made by parliaments. Legislation is also known as statute law, statutes, or Acts of Parliament. In Australia, legislation is made by the Commonwealth parliament, the State parliaments, and by the legislatures of the Northern Territory, the Australian Capital Territory and Norfolk Island. Other bodies, such as local governments, are given certain powers by parliaments to make legislation as well.

It is a well-established principle inherited from British constitutional law that parliament is sovereign or all powerful. This principle is controversial because, subject to constitutional limitations, it means that in theory parliament can make any law it wants to, even if it is contrary to what most people would regard as their basic rights. The fact that the law-makers must face election is one important brake on this power. However, many now call for the insertion of a constitutionally entrenched ‘Bill of Rights’ to guarantee that parliaments’ law-making powers respect these basic rights. This is yet to happen.

The practical result of the principle of parliamentary sovereignty is that legislation prevails over common law. If there is a conflict between legislation and the common law, legislation will over-ride the common law. However, that conflict must be clear. There is a presumption that rights under common law continue unless the legislation clearly does away with them. "Legislation is written on the common law".

The legislative powers of parliaments are also governed by the Commonwealth and State constitutions. Australia's obligations under various international treaties, conventions and covenants are also beginning to place limits on parliamentary sovereignty, though the present legal position is that these instruments of international law do not generally become part of national law until parliaments enact legislation to do this.

Interpreting legislation

Judges continue to play an important role in interpreting legislation because often the meaning of words and phrases in legislation will be undefined or hard to determine. This may be the result of simple oversight, a deliberate attempt to fudge the meaning to achieve a political compromise or a genuine recognition that all the circumstances in which the legislation may apply cannot be foreseen. The use of the word ‘reasonable’ in legislation is often a convenient route of escape for legislators in such situations.

Because the interpretation of legislation by the courts can have such an important effect on how the legislation is implemented, both Commonwealth and State parliaments enacted legislation to guide this process - these are the Acts Interpretation Acts. Explanatory memoranda state the intended effect of legislation. Second reading speeches, made by the politician who moves the Bill, and debates in parliament are also important. The Acts Interpretation Acts, both Commonwealth and State, provide that the courts must be guided by these statements, and other relevant extrinsic material ( s15AB and s8B). The Commonwealth Acts Interpretation Act applies to Commonwealth legislation, and the State Act to State legislation.

Judges have developed special rules of statutory interpretation that are also used in understanding the meaning of a statute. The literal rule provides that words in legislation should be given their “plain, literal, natural, ordinary or grammatical meaning” unless they clearly have an established legal meaning as defined in previous case law. The ‘golden rule’ is an extension of the literal rule. It provides that words in a statute are to be given their ordinary meaning unless that interpretation should lead to some absurd result. In that case, the ordinary meaning should be modified in some way that the court thinks appropriate in the context of the legislation. The mischief rule provides that the court should look at the state of the law before an Act was passed to see what remedy the new legislation hoped to provide to cure the ‘mischief', that is, problem which existed under the law as it was.

The fourth approach is the purpose rule. This is provided in the Acts Interpretation Acts at the Commonwealth and State levels ( s15AA and s8A).

Finding the Law

Primary and secondary sources

A primary source can be:

• legislation
• case law

A secondary source can be, amongst other things:

• textbooks
• commentaries
• academic articles

Often finding the law is not easy, even for a lawyer. The first question is always: is there any relevant legislation? But even before that question can be answered it is important to know whether to look for Commonwealth or State legislation. If legislation is unclear, only supplementary to the common law, or non-existent then the place to look is case law, which is found in the many reports of cases decided by the courts known as Law Reports.

Websites on the internet enabling free access to up-to-date legislation and case law have revolutionised the task of locating the primary sources of the law. The most useful general purpose Australian sites for legal research are:

• www.austlii.edu.au
• www.comlaw.gov.au

However, to find a way through the maze of these primary sources, it is usually still a good idea to start research with a secondary source of law, that is a text book, which gives a guide to the primary sources of law on a particular topic.

A site for Tasmanian law is:

• www.thelaw.tas.gov.au

Recent years have seen a flood of books about law for non-lawyers. These books are usually much easier to understand than legislation and law reports and may be all that is needed to find the answer. Usually they are about particular topics, for example ‘family law’ or ‘motor vehicle accidents’. This Law Handbook website attempts to provide an introductory guide to most areas of law affecting the ordinary person in their day-to-day affairs.

A person referring to secondary sources should be aware of three pitfalls:

• the textbook may be out of date — changes to the law can be rapid in many areas;
• some textbooks are unreliable — they may not be accurate in their explanation of the legislation and cases law;
• views as to the law may vary — it is worthwhile to compare what different textbooks say.

One way of trying to avoid some of the pitfalls is to use loose leaf texts published by CCH, Butterworths and the Law Book Company. Though not as user friendly, they are generally more up-to-date, reliable and mainstream in their views. But make sure that they have been kept up-to-date. The loose leaf texts kept at law libraries generally will be current.

Another way is to follow up with a search on one of the legal websites for the occurrence of a key word or phrase in the area of law being researched. Make sure that research covers both the legislation and case law. Research is often difficult and time consuming. The best resources are often websites that require a paid subscription, such as LexisNexis or Westlaw. However, Austlii provides a free service with legislation, decisions of courts, and some articles. Familiarity with boolean search terms is also an asset. Information can be accessed through a simple internet search for boolean search terms.

Finding case law and legislation

Case Law

Commonwealth and State case law can still be found in authorised and other law reports. The authorised reports of High Court and Federal Court decisions are the Commonwealth Law Reports (CLR) and Federal Court Reports (FCR). The Federal Law Reports (FLR) cover most important federal cases. A more convenient and up-to-date set of reports of federal court decisions is the Australian Law Reports (ALR).

The authorised reports for important Supreme Court decisions are the Tasmanian Reports (Tas R), but more comprehensive, convenient and up-to-date reports are in ‘Unreported Decisions of the Supreme Court’ series, which are available online. Each state has its own authorised reports: New South Wales Law Reports (NSWLR); Victorian Reports (VR); Queensland Reports (QdR); South Australian State Reports (SASR); and Western Australian Reports (WAR).

When referring to a particular case that is reported in one of the law reports, there is a traditionally accepted shorthand reference. For example: Commonwealth v Tasmania (1983) 158 CLR 1. This is the shorthand reference given to the High Court's judgment in the Tasmanian Dams Case. The reference tells us that the case was decided in 1983, is to be found in Volume 158 of the Commonwealth Law Reports at page 1. Similarly, BMG Resources Ltd v Municipality of Beaconsfield (1988) Tas R 142 is a shorthand reference which tells us that the case was decided in 1988 and is to be found in the Tasmania Reports of that year at page 142.

As with legislation, the more convenient way to research case law now is through the internet. The High Court, Federal Court, Family Court and State Supreme Courts all publish their decisions on the internet as do many tribunals. Austlii provides .rtf and .html files of many Australian court decisions. The menu bar on the left hand provides access to Commonwealth and state case law and legislation. Significant amounts of case law have been transferred to internet databases, although some case law is limited. However, the High Court decisions on the internet now go back as far as 1903. It is now also possible to cite cases from the internet. Thus a Tasmanian Supreme Court case is now cited as follows: Henderson v P & O Resorts Pty Ltd [1999] TASSC 58 - which tells us that the case was number 58 of the cases in which there was a written decision of the Supreme Court in 1999. Page references have been replaced by paragraph references to enable reference to cases on the internet.

Legislation

Legislation, both State and Commonwealth, can be purchased from the State and Commonwealth Government printers. This is still the official version of the legislation. However, major disadvantages of researching legislation in this way are the cost and the need to make sure that all the up-to-date amendments are included.

Access to current legislation on the intemet avoids both these problems. Anyone can make a search of the legislation to see what provisions are relevant and then download and print them out. Such legislation is almost always up to date to the day. Commonwealth and State legislation can be found on www.comlaw.gov.au and for only Tasmania on www.thelaw.tas.gov.au It is best to search the latter site through the ‘Browse A-Z’ if you are looking for a particular Act, as the search functions are comprehensive in their search results rather than title specific.

In addition, government Departments may have specialised web sites dealing with the laws that govern their operations.

Law Libraries in Tasmania

The law library at the University of Tasmania is accessible to the public for reading in the library, but not for borrowing, unless a person purchases membership to the library.

There are publically accesible law libraries attached to the Supreme Court in Hobart, Launceston and Burnie. These are the:

• The Andrew Inglis Clark Law Library located on the ground floor of the Supreme Court in Salamanca Place;
• The Launceston Law Library located on the Ground Floor, of Staffordshire House, 56 Charles Street;
• The North West Law Library (Burnie) located on the 1st Floor, Supreme Court Building, Alexander Street.

The Supreme Court supplies an excellent legal research paper for people engaging in legal research using databases such as CaseBase and FirstPoint – both subscription legal databases, accesible from the supreme court law library.

For more information on the law libraries attached to the Supreme Court, see the Supreme Court libraries website.

Legislation, law reports, and textbooks, can currently be found in the Law Society libraries in Hobart, Launceston and Burnie and in the University of Tasmania Law Library in Sandy Bay. The University library also has a wide variety of overseas law reports and law journals as well as internet access to a wide range of law databases. However, you must have a username and password to access the university internet access to law databases.

State libraries have legislation in the form of annual ‘statute books’ and some law textbooks as well as intemet access. Rural and suburban centres may not have a large selection of legal books but can arrange inter-library loans.

Law Reform

A just and efficient system of law is so important that it cannot always be left to parliaments and judges to carry out this task. The courts must wait for the issues to come before them and often prefer to leave controversial issues to the politicians. Politicians are often reluctant to deal with controversial or difficult issues. It is for this reason that both the Commonwealth and States have bodies whose task is to keep the process of law-making under continual review, and recommend changes to the law where it is found not to be operating justly or efficiently. This task is generally carried out by bodies known as ‘Law Reform Commissions’.

The Australian Law Reform Commission is very active and has prepared many reports for law reform including alcohol, drugs and driving, human tissue transplants, defamation, child welfare, privacy, domestic violence, sentencing, product liability, the adoption of Aboriginal customary law, a uniform Criminal Code and a uniform Evidence Act. Uniform Evidence Act came into effect in several states, including Tasmania, which gives uniform law across Commonwealth and state jurisdictions.

Tasmania has the Tasmanian Law Reform Institute (TLRI), directed by Professor Kate Warner. Examples of proposals for State law reform are changes to the law in relation to intoxication and criminal responsibility, a Charter of Rights for Tasmania, sentencing, criminal liability of organizations, the establishment of a drug court pilot in Tasmania, criminal liability of drives who fall asleep causing motor accidents, and the law of easements in Tasmania. The TLRI continues to produce important work on criminal and civil law issues. Papers and media releases are accessible through the TLRI website.

Neither Law Reform Commissions or the TLRI can reform the law on their own. They will recommend reforms to the Attorney-General. Law reform can often be a slow process because of the different social and economic interests affected by proposed changes. Generally there must be solid community support for such proposed changes before the legislators in parliaments are prepared to implement them.