3. Where does law come from?

Parliaments make laws. But so do judges. International treaties may also be a source. And it gets even more complicated.

For the transcript of this episode and further reading, visit https://lawincontext.com.au/where-does-law-come-from/

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context

Transcript

Stephen Parker

In the first episode we said it is surprisingly difficult to answer the question ‘what is law?’   One way to begin is to look at where our law comes from – that’s the focus of this pot-boiler episode of ‘law in context’. 

Stephen Bottomley

Ok, so where does our law come from?

Stephen Parker  

There are two primary sources of domestic law; in other words the law that applies within the country: the courts and parliament.

Stephen Bottomley

That sounds clear and straightforward – so this looks like it will be a short episode.

Stephen Parker  

Not so fast.  Each of those two sources raises interesting questions about the rule of law and the democratic process.  Let’s start with the courts.  

Last time, we looked at how courts decide cases, and how a judge is required to apply the law to the particular set of facts that the parties have presented to the court.  

That is not a mechanistic exercise – if it was, legal disputes could be resolved by a computer program (and who knows, as ai develops – future episode, i think, Steve….).  

Anyway, let’s say that for now there can be complex issues about how, and whether, the law should apply.  

Or, the facts of the case may present questions that have not previously been before a court – so-called novel questions - or perhaps applying the law to the facts may lead to clearly unjust results.  

The judge’s role is to interpret the law and to decide whether and how it is to be applied in each case.  

Stephen Bottomley  

And in doing that, the judge is shaping the law – expanding or contracting its application in the real world.  Judges can exercise some discretion in how they interpret the law and apply it to the facts of a case. In this way, judges make law.  

Stephen Parker

Yes.  But it is a slow and gradual way of ‘making law’.  Courts can only decide the cases that are brought to them.  And the doctrine of precedent can also tie a judge’s hands if they are lower down in the court hierarchy. 

Stephen Bottomley  

So why do some commentators complain about ‘judicial activism’? 

Stephen Parker  

Well, that is a very interesting question.  Some people find judicial activism everywhere they look.  They probably think that the law is always clear to begin with, and they may also think that parliament is the only place where new law should be made.  

Stephen Bottomley

The High Court’s decision in Mabo, which gave legal recognition to Indigenous land rights, gave rise to this sort of complaint.  

But the decision was well within the bounds of the judicial role and the rule of law: examining the state of the law in light of a set of facts and deciding that the existing law was outdated and unjust.  

And, in any event, it prompted parliament to pass legislation that formalised the process for recognising native title.

Stephen Parker

Which takes us to the second source of law – the Parliament.

Stephen Bottomley  

Nice segue.

Stephen Parker

Yes, this is a slick operation. 

Stephen Bottomley

Parliaments make law in the form of acts or statutes.  

At the federal level in Australia, the range of topics for which parliament can make law is set out in the constitution where there is a list of forty so-called ‘heads of power’ that includes matters as diverse as taxation, marriage and divorce, external affairs, immigration, postal services and lighthouses.  

Stephen Parker

I’m surprised you didn’t mention corporations, considering you’ve been banging on about them for years.

Stephen Bottomley

Well, that is also in the list, but it is a complicated story – perhaps we can deal with it in a future episode.

Stephen Parker

I can’t wait. [Editor’s Note: This was said ironically.]

Stephen Bottomley

There are hundreds of statutes in operation at the federal and state or territory levels, with new acts, or amendments to existing acts, being made all the time. 

Some acts are relatively short, but others contain many hundreds of sections.  

Stephen Parker

We said earlier that judges can only make decisions about cases that come before them.  Parliaments, on the other hand, can be proactive in making law.  

The political party that forms government in parliament may have been elected on the basis of an undertaking that it would pass laws on a particular matter.  

New legislative proposals might also be prompted by pressure from special interest groups or industry or sectors of the community.  

Sometimes legislation is made in response to crises, sometimes in response to recommendations from law reform commissions or royal commissions of inquiry.

Stephen Bottomley 

Knowing the law and how it applies to a particular situation is very difficult. And the picture becomes even more complex.  

When parliament decides to enact a statute about a particular topic, it cannot predict every eventuality that might arise in the future. 

And, there will be matters of technical detail and procedure that would only add to the volume of the act if they were included.  

For these reasons, a statute will typically have a section that allows the executive branch of government – the government departments and statutory agencies – to make regulations that deal with these sorts of questions.  

Regulations are described as ‘delegated legislation’ or ‘subordinate legislation’.  There are other types of delegated legislation too, with a variety of labels such as orders, determinations, directions, declarations, codes, and rules.  

Together with regulations, these are known as ‘legislative instruments’ and there are many thousands of them.

Stephen Parker

These are the laws that most directly affect people in their everyday lives, especially those in business.  They prescribe fees, standards, permitted activities, time-frames, and many other similar things.  This is where the legislative rubber meets the road, to use a motoring metaphor.

Stephen Bottomley

As you would. [Editor’s Note: Stephen Parker restores classic cars.]

Stephen Parker

Indeed.  So, what role does parliament have with all this delegated legislation? 

Stephen Bottomley

In most cases, Parliament has no direct involvement.  It is possible that Parliament might be asked to disallow a particular legislative instrument, but that is a rare event.  

Disallowance might occur if a legislative instrument exceeded the boundaries set by the statute under which it was made, or if it purported to act retrospectively – that sort of thing – but for the most part these instruments operate without Parliament becoming directly involved.

Stephen Parker

Hang on a minute.  Earlier on we said that there are two sources of law: the courts and Parliament.  Now we’ve added a third – the Executive.  So it seems that all three aspects of our separation of powers - the Parliament, the Executive, and the Courts – are involved in law-making.  

Stephen Bottomley

True, but laws made by the executive branch fall under the umbrella of Parliament’s statute- making power, so in theory we have two primary sources of law.

Stephen Parker

OK, let’s stick with that - two sources of domestic law.  There are two further questions – how do they interact and does one of them have priority over the other? 

Stephen Bottomley

On the first question, we’ve already seen part of the answer when we talked about the Mabo case: in some instances, judge-made law will prompt parliament to step in and make new legislation, or amend existing legislation.  

To take a different example, it may be that someone successfully challenges a taxation liability because the court finds that the relevant tax statute does not permit the tax office to impose liability in those particular circumstances. 

Parliament will then amend the tax statute to fix that gap – and then the operation of that amendment might later be challenged in court, and so on.  

That judicial examination of the statute is the main way in which the courts interact with parliament-made laws: through the process of statutory interpretation.  

This is a very formal process in which judges are constrained by rules that govern what they can consider in determining the meaning of a statute.  They are not at liberty to simply apply their own ideas about what the law ought to say. 

Stephen Parker

And on the second question about which source of law has priority, the answer is Parliament, assuming the law is within the constitution.  If there is a clash between a judge-made law and one made by Parliament, Parliament will prevail.  This is parliamentary supremacy, where our ideas of democracy interact with the separation of powers. 

Stephen Bottomley

Looking at where our law comes from takes one step towards answering the bigger question of ‘what is law?’ but it also raises a whole lot of other questions.  We’ll look at some of them in future episodes.