Sources of law

The Commonwealth Constitution, at a national level, is the founding institution of law in Australia. The Constitution is the set of rules that controls the power, authority and operation of a political and legal system. The Commonwealth Constitution is an Act of the Imperial Parliament of England. The Imperial Parliament was the United Kingdom parliament that passed legislation pertaining to British colonies. The Commonwealth of Australia Constitution Act 1900(Imp) covers the operation of the federal government, federal parliament and also, officially, translates the colonies into the States of Australia. Each of the States has its own constitution as well.

The Commonwealth Constitution gives the Commonwealth Parliament of Australia the power to make laws about certain areas. Defence, immigration and telegraphic services are examples of subjects on which the Commonwealth has the power to enact laws. Road rules, the buying and selling of property and criminal laws in general, are examples of matters that are exclusively within the legislative power of the States. This is because these subject areas are not within the listed powers of the Commonwealth parliament. As it assigns legal power to both the federal and State systems, albeit the latter by omission, the Commonwealth Constitution can be seen to be the fundamental document of empowerment in the Australian political and legal systems.

Case law and legislation

The two principal sources of law in Australia are 'case law' made by the courts and 'legislation' made by parliaments. Prior to 1850, most parliaments were not very active in making laws. Cases were decided as they came to court and judges published their decisions, including the reason for the decision, in law reports. Other judges could consult these reports and use them as precedents for deciding their own cases. This is how the body of 'common law' came into being. Since the mid-nineteenth century, parliamentary laws (known as 'statutes' or 'Acts') have been made in increasing numbers. It is important to know that these statutes and Acts (which are collectively known as 'legislation') overrule the common law if both are applicable to the same area.

Legislation is 'enacted' by a legislature. Before an item of legislation becomes a law it exists as 'a bill' proposed to parliament. A bill is a proposal for a new law, or a proposal to change an existing law, and in its first presentation to parliament it takes the form of a draft Act. Proposals for new legislation, or amendments to legislation, can come from many different sources, including the cabinet of the government, members of opposition parties, or through suggested amendments to existing laws received from bodies like the Australian Law Reform Commission.

Legislation must be assented to by the executive branch of government (in other words, it must be 'promulgated' or 'gazetted') before it enters into force as law. In Australia, this procedure is done by the Governor-General (Cth) or the Governor of the relevant State. Once it has been promulgated, an Act of parliament becomes enforceable by the government. Most governments enact only a small amount of the bills that are proposed in parliament.

The chances of a bill being enacted into statute depend heavily on the legislative and political priorities of the government as well as on the balance of power within the parliament. In general, Acts of parliament command, prohibit, or declare policy on various matters. Parliament can also be responsible for the implementation of a broad range of official orders, regulations and rules across many organisations, institutions and areas of society.

Other sources of law

Aside from case law and government legislation, legal frameworks can be derived from other sources, such as international law or customary law.

International law is a complicated and very fluid area. It does not have the same sanctions and strict powers as the laws made within a country. Countries can be parties to a 'treaty', which is an agreement between countries that is binding at international law. A treaty might also be known as a 'convention' or a 'protocol'.

Treaties can be bilateral (between Australia and one other country) or multilateral (between several countries). 'Declarations', such as the Declaration on the Rights of the Child (1959), might be adopted by the United Nations, but they are not considered treaties because they are not intended to be binding as a type of international law. Such declarations may, however, be part of a long process that eventually leads to a convention which will have some binding power in international law.

In Australia, it might seem that Aboriginal customary law may not be in operation in society, but it would be wrong to say that Aboriginal customary law does not operate at all. The operation of an Aboriginal customary punishment such as spearing would be almost non-existent in most parts of Australia (especially urban and regional areas). In a more subtle sense, however, Aboriginal customary law might be seen to operate in maintaining relations within Aboriginal communities, in the form of shaming, banishment and other social customs that punish or regulate behaviour.

Exactly what constitutes Aboriginal customary law is hard to describe. This is because an element of secrecy still surrounds many Aboriginal customary laws, and also because tribal laws can differ from region to region. Aboriginal customary laws are also formed as part of an oral culture, which means there is no written list of laws that can be followed or applied in general.