The Australian Constitution
The Australian Constitution is Australia’s supreme law, providing a framework for the development of all other laws in Australia by establishing the division of power between the federal and state parliaments. The Constitution also provides fundamental laws and protections for all Australians.
The Australian Constitution was passed in 1900 to ensure greater cooperation between the states, which had been operating as six self-governing British colonies since European settlement. Under the Constitution, the federal government has the ability to make laws for all Australians — allowing a more coordinated approach to the development of laws of national significance, such as those relating to defence.
In agreeing to the Australian Constitution, the states passed some power to the federal government to make laws for the whole country, while still maintaining the power to make other laws relating to their state. The division of power established under the Australian Constitution can be changed either by the states referring powers to the Commonwealth or by a vote of the people, known as a referendum. As a result the division of power can change over time.
Victorian and federal legislation
Victorian legislation consists of laws made by the state Parliament of Victoria. Federal legislation consists of laws made by the federal parliament in Canberra. The federal parliament can only make law under the powers provided to it under the Australian Constitution or by agreement with the states.
Federal legislation affects all Australians, while Victorian legislation affects only Victoria. At any one time there will be hundreds of pieces of legislation in place, setting out the laws in all aspects of our lives.
Common law, sometimes referred to as judge-made law, is law developed by judges as they decide cases. In deciding cases, judges refer to previous decisions for guidance on how the law is applied. Judges must also interpret the meaning of legislation in relation to particular situations. They record their decisions in written judgments that are then referred to in the future by other judges. This ensures that the law is applied consistently. In this way judges clarify and sometimes refine the meaning of the law, using a system of precedent.
The concept of common law is hundreds of years old and goes back to when there was little or no written legislation. At this time judges referred to other judges’ decisions to ensure that matters coming before the court were treated consistently.
What's the difference between…
Legislation, statutes and Acts?
Nothing … All these words mean the same thing — laws made by parliament.
Commonwealth, federal and Australian parliament?
Again, nothing. All three terms refer to the Australian parliament in Canberra. You can find out more at the Australian parliament website.
Now that you understand where our laws come from, find out more about the different organisations that make up our legal sector