# Sources of Australian law
## Introduction
Australia’s legal system is a common law system inherited from the United Kingdom. Its structure is a federal one, meaning that power is divided between a central Commonwealth government and various state and territory governments. As a result, the sources of Australian law are varied, but they can be broadly categorised into two principal types: statute law, which is made by parliaments, and common law, which is created by judges. The entire legal framework operates under the supreme authority of the Australian Constitution, which is the foundational source of law in the country. This essay will describe these primary sources of law and explain their hierarchical relationship.
## The Australian Constitution
The paramount source of law in Australia is the Constitution. Enacted as part of a British statute, the *Commonwealth of Australia Constitution Act 1900* (UK), the Constitution established the Australian federation and sets out the powers and responsibilities of the key institutions of government. It created the Commonwealth Parliament and gave it the power to make laws in specific areas, which are listed in section 51 of the Constitution. These areas include matters such as trade, defence, and taxation. The states retained the power to make laws on all other matters within their own borders.
A key feature of the constitutional framework is section 109, which resolves conflicts between federal and state laws. It provides that where a state law is inconsistent with a Commonwealth law, the Commonwealth law shall prevail, and the state law, to the extent of the inconsistency, is invalid (Sawer, 1967). This establishes a clear hierarchy and ensures uniformity in areas of national importance. The High Court of Australia is the final arbiter of constitutional interpretation, giving it a powerful role in determining the limits of parliamentary power.
## Statute Law
Statute law, also known as legislation, is the body of law made by Commonwealth, state, and territory parliaments. This is now considered the most important source of law, reflecting the principle of parliamentary sovereignty, which means that parliament has the ultimate authority to make or unmake any law (Bottomley and Bronitt, 2012). The legislative process involves a proposed law, known as a Bill, being passed by both houses of parliament (where applicable) and then receiving Royal Assent from the relevant Governor or the Governor-General.
The volume of statute law has grown significantly over time, and it now regulates most aspects of modern life, from criminal conduct and commercial contracts to environmental protection and social security. An important feature of statute law is that it can override common law. If there is a conflict between a principle established by a court and a provision in an Act of Parliament, the statute will always take precedence. Parliament can also pass legislation to codify existing common law principles or to abolish them entirely.
## Common Law
The second primary source of law in Australia is common law, which is also referred to as case law or judge-made law. This body of law is developed by judges through the decisions they make in cases that come before them. The fundamental principle governing common law is the doctrine of precedent, or *stare decisis*, which means ‘to stand by things decided’. Under this doctrine, a court is bound to follow the legal principles established in previous decisions of higher courts within the same judicial hierarchy (Cook et al., 2021).
The decisions of the High Court of Australia are binding on all other Australian courts. The part of a judicial decision that is binding is the *ratio decidendi*, which is the legal reasoning essential to the outcome of the case. Other comments made by judges that are not strictly necessary for the decision are known as *obiter dicta* and are only of persuasive value. While statute law is the dominant source, common law remains vital. It fills the gaps left by legislation and provides the rules for statutory interpretation, through which judges determine the meaning and application of parliamentary acts.
## Conclusion
In summary, the sources of Australian law are primarily derived from its constitutional framework, parliamentary legislation, and judicial decisions. The Australian Constitution is the supreme law, providing the ultimate authority for all other laws and dividing law-making power between the Commonwealth and the states. Statute law, made by Federal and State Parliaments, is the most prolific and powerful source of law today, with the ability to override judge-made law. Finally, common law, developed by the courts through the doctrine of precedent, continues to be a crucial source of legal principles, particularly in areas not covered by statute and in the interpretation of legislation. Together, these sources form a complex but structured legal system.
## References
- Bottomley, S. and Bronitt, S. (2012) Law in Context. 4th edn. The Federation Press.
- Cook, C., Creyke, R., Geddes, R. and Hamer, D. (2021) Laying Down the Law. 11th edn. LexisNexis Butterworths.
- Commonwealth of Australia Constitution Act 1900 (UK).
- Sawer, G. (1967) Australian Federalism in the Courts. Melbourne University Press.
