2 Sources of Law

Sources of Law
• T H E C O N S T I T U T I O N
• S E P A R A T I O N O F P O W E R S
• L E V E L S O F G O V E R N M E N T
• L A W S
• S T A T U T O R Y I N T E R P R E T A T I O N
• T H E R O L E O F P A R L I A M E N T S & T H E C O U R T S
• D E L E G A T E D L E G I S L A T I O N
11 LEGAL STUDIES | PAUL.WHITE@GROVES.QLD.EDU.AU 1

Where does our law come from?
What is its source?

Common law: judge-made law; based on judges’ decisions over hundreds of years
Statute law: laws made by parliament; most common form of law in our society; takes
precedence over common law

The Constitution
Long title: Commonwealth of Australia Constitution Act 1900
Gives all levels of government throughout Australia their power and authority to make laws
Constitution: the set of rules that specify the powers, responsibilities and trole sof the governing
bodies within a state or territory
◦ Sporting clubs and groups
◦ Individual states - The Constitution of Queensland 2001 gives powers to the Qld Parliament, Executive
and Judiciary
Australia’s federation meant we needed a set of rules to govern us and the relationship between
federal and state governments

Our Constitution provides powers for the Federal and State governments
Specifies under which areas the Federal govt can make laws (heads of power)
◦ Heads of power: subjects about which the Constitution allows the Federal Government to pass laws
Does not list what laws States can make – they can make laws on everything not listed as Federal
These powers are listed under s51 of the Constitution
Exclusive
• Commonwealth powers
• Defence
• Customs
• Currency
• External affairs
Concurrent
• Commonwealth & State powers
• Trade and commerce
• Most taxation
• Corporations
• Industrial relations
• Environment
Residual
• State powers
• Health
• Education
• Criminal law
• Property

Why was it appropriate for these areas (currency, defence, etc) to be given to the Federal
Government to enact laws?

The Constitution also created the High Court and gave it substantial power
◦ Most important power it has is to review federal legislation and decide whether it comes within a head
of power
◦ If not, it is invalid/unenforceable
◦ Also reviews State legislation to ensure it does not conflict with a valid federal law or with the
Constitution

What is meant by the statement, ‘federal law prevails over State law’?
What circumstances must exist for federal law to prevail?
The Constitution empowers the Federal Government to make laws in certain areas:
◦ Where does the Constitution do this? (ie. what section?)
◦ Give an example of one concurrent power.
◦ Give an example of one exclusive power.
The Constitution does not actually describe what powers the State Governments have to make
laws:
◦ How do State Governments know from the Constitution what their powers are?
◦ Give an example of one State power.

Levels of Government
In Australia there are 3 levels of parliaments responsible for making the laws:
1. Federal (or Commonwealth) Parliament
2. State and Territory parliaments, ie. Queensland Parliament
3. Local authorities (councils and shires), ie. Brisbane City Council or Logan City Council

Remember, Federal Parliament gets lawmaking power from the Constitution (exclusive power)
States get lawmaking power based on what is not listed in the Constitution (residual power)
States then delegate some of their lawmaking powers to local councils/shires

1. Federal (Commonwealth) Parliament
Is in Canberra
Passes laws applying to all Australians
Consists of:
A. Crown: the Queen represented by the GG
B. House of Representatives: members who represent voters in their local electorates
C. Senate: senators who represent their state or territory as a whole

1A. The Crown:
A new GG is appointed by the PM every 5 years
Major roles include:
 Opening and closing parliament
 Giving Royal Assent to legislation
 Holds reserve powers (powers usually held by the Crown, and not stated in the Constitution) which may
be used during a parliamentary crisis
 Eg. If a party or member of parliament tries to pass laws without having obtained the approval of a majority of the members of
both houses; or
 A consistent failure of the parliament to pass laws necessary for the running of the country

1B. House of Representatives:
Consists of 150 Australian citizens
Also called the lower house or the people’s house
Each member represents appox. 75,000-80,000 voters in a geographic area (an electorate),
therefore more populated states have more members
Major functions:
 Represent the interests of their constituents; and
 Introduce, debate and then pass or reject proposed laws

1C. Senate:
The upper house of Federal Parliament
Also called States’ house and house of review
Made up of 76 senators
States’ citizens elect 12 senators to represent them, Territory citizens elect 2 senators each
Major functions:
 Equal numbers so that larger/more populate states cannot dominate
 Reviews Bills sent to it from the House of Reps – cannot change it, but can ask the House of Reps to do
so – bicameral system
 Makes sure Ministers of the Government and their departments are held accountable – scrutiny. They
make sure the govt is doing its job properly in areas such as education, defence, welfare, etc, as well as
investigating topical issues

2. State and Territory Parliaments
Each state has own parliament making laws for their state
89 elected representatives to the Legislative Assembly (lower house) of State Parliament
 Not to be confused with the federal lower house/house of reps
Queen’s representative in Queensland is the Governor
We have a unicameral parliament – everyone else has a bicameral parliament
We abolished the bicameral system (technically removed the upper house of the State) because:
 It was seen to stop Bills getting through
 It made it a long process to get laws passed
 Was expensive

3. Local Authorities (Councils and Shires)
Each state passed legislation to create local governments
Local authorities have been given wide powers to make laws for their local areas, without having
to seek the approval of their State government for each matter
Local authorities are subject, however, to the higher lawmaking authority of the relevant State
government

Laws
We will look at:
How Parliament decides what the law should be
Drafting laws
How a law is made in Queensland
How a law is made in Australia

How Parliament decides what the law should be
The Govt is made up of people who represent us – therefore they are accountable to us
If we don’t like what the Govt has done, we will probably vote them out
Therefore, the Govt will do what the majority want, as a general rule
However, we are not all interested in the same thing
Some people love the environment, others don’t particularly care
These two groups may want the Govt to act in certain ways

Consider:
Some developers want to build a bridge to Stradbroke Island
 They see potential and money-making opportunities
Environmentalists are concerned about the damaged to the flora and fauna
 On the mainland, on Straddie and in the waters between the two
The two groups have different agendas and will want the Govt to do different things
These two groups (developers and environmentalists) are called stakeholders
Every law and Govt activity has stakeholders
Stakeholder: people who have a particular interest in an issue; they are specially effected by it

Drafting Laws
The words of laws must be carefully chosen
They must communicated meaning accurately and clearly
If laws are ambiguous or have loopholes, lawyers and criminals can take advantage of it

Example:
A legal issue arose with the issuing of parking tickets for motorists who parked in bus, taxi and
mail zones
The law at the time said that parking tickets and fines would occur for parking in bus, taxi and
mail ‘stops’
◦ It did not prohibit parking in ‘zones’ and therefore the parking tickets were not valid
The meaning of ‘zone’ was not seen to be the same as ‘stop’
The Govt had to change the law to make it effective

Example:
An escape artist threw himself off a bridge in Brisbane
He was bound in chains and was performing a stunt whereby he had to escape the chains and
swim to safety
◦ Which he did
He was charged with an offence under a law that prohibited people from ‘jumping’ off public
structures, including bridges
He was acquitted (not guilty) after his lawyer successfully argued that the man did not ‘jump’
◦ ‘Jumping’ requires the body to be raised in flight before dropping, which the escape artist did not do

How a Law is Made in Queensland
We have a unicameral system – one house (lower house: Legislative Assembly)
Federally it is a bicameral system – two houses (upper and lower house: Senate and House of
Reps)
In Queensland the law has to pass through a number of stages before it can be enforced
◦ But this only happens once
◦ Define ‘bill’ (as a legal/political concept, not as a part of an aquatic bird or a request for payment)

*Called ‘Committee of the Whole’ in your textbook
*

How a Law is Made in Australia
The same as for Qld, but with two houses
You will notice the image on the right goes through the process Qld has
twice – once through the House of Reps, and then through the Senate
The only other difference is that at the Royal Assent stage it is passed
by the GG, not the Governor

Statutory Interpretation
Statutory – as in statute – as in law
So, the interpretation of the law
This is needed as some laws can be ambiguous because of their wording (as discussed
previously)
See PDF on Learner.Link: ‘3.5 Understanding a law made by a Parliament’ from Legal Studies for
Queensland, Volume 1 (6e), by Woodgate, Black, Biggs & Owens.

A number of rules are used to aid understanding of the intent of an
Act, to help the judiciary to interpret the meaning of the law.
These include:
◦ Literal rule – courts will apply the dictionary definition of the words used
◦ Purposive rule (sometimes called Mischief rule) – looks at the intention of
parliament; achieved by reading through speeches from parliamentary
debates to help provide interpretation of meanings or the intent of the Act
◦ Specific rules – refers to reading a particular section in the context of the
entire Act to understand the Act’s intention
◦ Golden rule – courts apply the literal meaning of the words used, unless it
would lead to an absurdity

Example:
The State Government is concerned that too many people are parking in inner city streets and
causing congestion. As a result they pass a law that: ‘No one in charge of a vehicle in the inner
city shall park the vehicle in the street.’
Let’s say that Chad is driving through the inner city when his car breaks down. He must leave his
car in the street. Has he broken the above law?
The answer will depend on the approach the judge takes when interpreting the above statute.
Apply the literal, golden and mischief/purposive rules to this scenario.

Literal rule: Chad has literally broken the law by ‘parking’ his car in the inner city. The words do
not include any exceptions.
Golden rule: the literal rule would lead to an absurdity because someone who has broken down
(unintentionally) would be charged.
Mischief/Purposive rule: the Act was intended to stop people deliberately parking their car in
the inner city. The Act was not intended to apply to a situation like Chad’s.

The Role of Parliament and the Courts
See Table 1.2.3 on page 23 of your textbook for a comparison of Parliament and the Courts.

Delegated Legislation
Often referred to as regulations
Made by the Governor-in-Council (the government minister responsible for the area of
lawmaking, in consultation with senior public servants and members of the Cabinet)
Puts into effect provisions of an Act of Parliament
Do not need approval by the parliament
Often used so that regulations can be made and changed quickly
Laws made outside the boundaries are deemed to be ultra vires (beyond power)

Eg. Explosives Act 1999 (Qld) allows regulations to be made
This means people cannot just look at this Act
For example, to understand that it is illegal for the driver of a vehicle containing explosives to
allow the vehicle to remain stationary in a public place within a town or city, a citizen must also
read s114 of the Explosive Regulations 2003 (Qld)
◦ This then refers the reader to the Australian Explosives Code and the Australian Dangerous Goods Code
While this is useful because regulations can be made and changed quickly, how useful is it,
really, if people don’t realise they need to read three other documents to fully get a grasp of the
law?

2 Sources of Law

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