Where do the laws come from?
The laws that affect you as a Victorian come from four places: the Australian Constitution, Victorian and federal legislation and cases decided by the courts.
The Australian Constitution is Australia’s highest law. It outlines how power must be shared between the federal and state parliaments.
The Constitution also provides fundamental laws and protections for all Australians.
After European settlement, six self-governing British colonies were established in Australia. In 1900 it was agreed to establish a federation where all the colonies would become states within a single nation governed by the Australian Constitution.
The law set out in the Constitution makes sure the states cooperate with each other and with federal laws. The Commonwealth government passes legislation in areas where it is important to have a single law – for example, in defence and immigration.
When they agreed to to the Australian Constitution, the states gave some of their powers to the Commonwealth government, so it could make laws for the whole nation. They kept some other powers so that they could make local laws for their own 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 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 it has under the Australian Constitution or by agreement with the states.
Federal legislation affects all Australians, while Victorian legislation affects only Victoria. There are hundreds of pieces of legislation that set out laws covering almost all aspects of our lives.
Common law, sometimes referred to as judge-made or case law, is law developed by judges as they decide cases. When judges hear cases, they refer to previous decisions in cases that were similar. This guides the way they apply the law.
Judges must also interpret the meaning of legislation (see above) in each case that comes to court. They record their decisions in written judgments that are then referred to in the future by other judges. This way of working, called applying precedents, ensures that the law is applied to everyone in the same way. In this way judges make the law clearer and more certain.
The concept of common law is hundreds of years old. It goes back to a time when there was little or no written legislation. Judges referred to other judges’ decisions to make sure that whenever a case came before the court it would be treated in the same way as other cases that were similar.