Where does Australian law actually come from?
Identify and explain the two main sources of law in Australia: statute law made by parliament and common law made by courts.
The two main sources of Australian law - statute law made by parliaments and common law made by courts - and how they interact, including the rule that statute prevails over common law.
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What this dot point is asking
You need to identify the two main sources of law, explain how each is made, and show how they relate to one another in Australia's legal system.
Statute law (legislation)
Statute law is law made by parliament. A proposed law is called a bill; once it passes both houses and receives royal assent from the Governor (state) or Governor-General (Commonwealth), it becomes an Act of Parliament.
Australia is a federation, so legislation is made at three levels:
- Commonwealth (federal) Parliament legislates on matters listed in the Australian Constitution, such as defence, immigration and taxation.
- State and territory parliaments, such as the Parliament of South Australia, legislate on matters not given exclusively to the Commonwealth, including most criminal law, health and education.
- Local councils make by-laws under power delegated by state parliament.
Common law (case law)
Common law is law developed by judges through their decisions in individual cases. When a superior court decides a case, the legal reasoning behind the decision (the ratio decidendi) can bind lower courts in later, similar cases. This is the doctrine of precedent.
Common law fills gaps where no statute applies and develops principles over time. A well-known Australian example is the High Court's decision in Mabo v Queensland (No 2) (1992), which recognised native title at common law for the first time. Parliament then responded by enacting the Native Title Act 1993 (Cth), illustrating how the two sources interact.
How the two sources interact
Statute and common law work together rather than in isolation.
- Courts interpret statutes. Words in an Act can be unclear, so judges apply rules of statutory interpretation to decide what parliament meant. These interpretations then guide how the Act is applied in future.
- Statute prevails over common law. If a valid Act conflicts with a common law rule, the Act applies. Parliament can abolish or modify common law principles by legislating.
- Common law fills gaps. Where no legislation covers a situation, judges rely on existing precedent and legal principle.
The English origins
Australian law derives historically from English law. After European settlement, English common law and statutes were "received" into the Australian colonies. Over time Australia developed its own statutes and its own line of precedent, and since the Australia Acts 1986 the British Parliament can no longer legislate for Australia and appeals to the Privy Council in London have ended. The High Court of Australia is now the final court of appeal.
Other sources to recognise
Beyond the two main sources, you should be able to mention:
- The Constitution, the highest source of law in Australia, which limits and distributes law-making power.
- Delegated (subordinate) legislation, such as regulations and by-laws, made under authority granted by an Act.
- International law, which is not automatically part of Australian law but can influence legislation and judicial reasoning once incorporated by statute.
Understanding these sources lays the foundation for the rest of the course, because law-making, constitutional limits and the operation of courts all build on the distinction between parliament-made and court-made law.
Exam-style practice questions
Practice questions written in the style of SACE Board exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
2019 SACE Stage 21 marksOutline what is meant by the phrase 'sovereignty of the legislature'.Show worked answer →
Sovereignty of the legislature (parliamentary sovereignty or supremacy) means that parliament is the supreme law-making body. It can make or unmake any law on any subject within its constitutional power, and its statute law prevails over the common law made by courts.
Because parliament is sovereign, it can override or abrogate a court decision by passing legislation, which is why statute is treated as the superior source of law. Courts must apply valid Acts of parliament even where they would have decided the matter differently.
2019 SACE Stage 21 marksIdentify one method that parliament uses to supervise case law.Show worked answer →
One method is abrogation: parliament passes legislation that overrides or cancels a common law rule established by the courts, replacing it with statute.
A second acceptable method is codification: parliament collects and restates existing common law principles in a single statute, confirming or clarifying the law made by courts. Either answer shows that parliament, as the supreme law-maker, can confirm, change or reverse the law that judges develop through precedent.