Laws reflect society, protect our rights and keep us safe
The purpose of laws is to keep the community safe, protect rights, establish
responsibilities, create peace, equality and fairness in our society and to make
penalties for people who break them.
Laws are usually made by parliaments and organise the way in which members of a society behave and protect them from harm. Laws are most often made by representatives of the people in Federal and State parliaments and Local governments.
Laws apply to all people in a particular place or area, known as a jurisdiction. This means that all people in Australia, or all people in a State, Territory or local government area will need to follow the law while they are living in or visiting the area. The penalties for breaking laws are given by police, government organisations and/ or courts. Penalties can range from minor penalties, such as a small fine for parking in a space for too long, to severe, such as long prison sentences for seriously harming another person.
In a democracy under the rule of law, all people (both the government and citizens) know the law and should be willing to obey it.
Law Making and Effective Laws
In Australia, Parliaments at Federal
(Commonwealth) and State level,
Legislative Assemblies at Territory level,
and Local Governments at community
level, have the responsibility to create
laws on behalf of the people, to regulate
behaviour to keep our community safe
and functioning smoothly. They are the
supreme law-making bodies in Australia
and the laws are known as statute laws or
legislation.
When a proposed law, a ‘bill’, is
introduced, it is debated by
representatives elected by the people. It
may be amended to ensure that it is
appropriate and suitable for the
community, reflects societal values and
upholds the rule of law principles and
human rights. It may not be passed if not
enough members deem it suitable for any
of these reasons.
Most Australian parliaments have a
bicameral (meaning two houses) system
consisting of an upper and lower house.
The exceptions are Queensland, the ACT
and the NT, who have unicameral
parliaments. The Upper House is called
the ‘House of Review’ and is an important
way for proposed laws to be checked
(scrutinised) by all representatives of the
people to confirm that they meet the
criteria of effective laws, reflect
community needs and standards and that
laws are openly and transparently made
Many of our laws are called common law,
otherwise known as judge-made law.
These laws develop when a judge makes a
decision in a case regarding a particular
dispute. Each different decision forms a
building block and judges use these
decisions on the same general topic to
create a legal framework, or legal
precedent.
To ensure consistency and fairness, lower
courts must follow the decisions
(precedents) set by higher courts in
similar cases with similar issues. For
example, the Supreme Court of Victoria
must follow decisions made by the High
Court of Australia, and the District Court
of NSW must follow the decisions of the
Supreme Court of NSW.
Some influential common law cases still
relevant in Australia today are Donoghue v
Stevenson (1932) (UK), Mabo v
Queensland (No. 2) (1992) and Dietrich v
the Queen (1992).
Parliament cannot overturn a decision of
the Court. However, as Parliament is the
supreme lawmaker (except in regard to the
Constitution), it can pass a new law that
overrides the precedent established in the
common law. This ensures that the
ultimate power to make laws is with the
people (via their elected represented) and
not with judges, who are not elected nor
accountable to the people.
Types of Law
Laws do not just prohibit acts (crimes)
such as theft or murder that are harmful to
individuals or society. There are also civil
laws which deal with the rights and
responsibilities between individuals and
organisations such as breaches of
contracts, property damage, or personal
injury.
In criminal cases, the person bringing the
case must prove their case beyond
reasonable doubt (rather than the balance
of probabilities in a civil case). This
different level of certainty (standard of
proof) required is higher in criminal law
because the punishments are often greater
than civil cases and may include
imprisonment rather than a financial
penalty such as a fine or damages.
There are also administrative laws that
provide accountability and transparency by
reviewing the conduct and decisionmaking of the government.
Finally, constitutional law deals with the
interpretation of the Australian
Constitution, a legal document setting out
the basic laws for the government of
Australia. These cases are heard and
decided exclusively by the High Court of
Australia. The High Court is the highest
court in Australia and any decisions made
are final. Any changes made to the
Australian Constitution can only be
amended by the Australian people through
a referendum.
