Our judiciary: 22. interpreting the law

22.1 What is the role of the courts?

The role of the courts is to apply and interpret the law. Federal courts (such as the High Court of Australia and the Federal Court of Australia) apply and interpret federal law; state courts (such as the supreme courts and district courts) apply and interpret state law.

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22.2 What is the difference between statute and common law?

A statute is a law passed by parliament. Judges interpret statutes, applying them to specific cases.

Statutes allow a society to:

• create frameworks within which the members of the society can operate
• enforce prohibitions and other rules which are set by the frameworks
• adjust to changing circumstances.

Common law is made through the decisions of federal and state courts. It is law that is recognised by the courts and that is not the subject of statutes. In this way judges play an active role in shaping the law. Common law:

• covers areas for which parliament has not passed legislation
• may address areas that parliament has not considered.

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22.3 How can judges make law?

Parliaments can only make laws through the passage of legislation. Courts can make laws in two ways:

• through their decisions
• through interpretation of the statutes.

Every decision adds to the body of common law. Sometimes, a judge cannot apply the law because it is unclear or has several meanings. Then the judge is required to interpret the words of a statute in order to 'declare the law' and to make a judgement.

This interpretation may result in:

• the statute being more precise and/or consistent
• a clearer definition of the terms used in the statute
• overall changes to the way the law works.

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22.4 What if a parliament is unhappy with a court's interpretation of the law?

If a parliament is unhappy about how an Act of Parliament is applied by the courts it can pass amending legislation that makes its intentions clearer.

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22.5 Can common law override an Act of Parliament (statute)?

Common law may not override an Act of Parliament; however, an Act of Parliament may override existing common law.

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• Our Federation

  • 1. Federation
    • 1.1 What is a federation?
    • 1.2 How did Federation occur?
  • 2. The Constitution
    • 2.1 What is the Australian Constitution?
    • 2.2 How was the Australian Constitution agreed?
    • 2.3 What are the main features of the Australian federal system?
    • 2.4 Can the Australian Constitution be changed?
    • 2.5 How many referendums have been held in Australia?
  • 3. Historical Firsts
    • 3.1 When and where was the first meeting of the Parliament of Australia?
    • 3.2 What was the first name of the Parliament of Australia?
    • 3.3 When was the first double dissolution of both houses of parliament?
    • 3.4 When and where was the first meeting of the Parliament in Canberra?
    • 3.5 When did the Parliament first meet in new Parliament House?
    • 3.6 What was the first Act of the Australian Parliament?
    • 3.7 Who sat on the first Bench of the High Court of Australia?
    • 3.8 Who was the first minister to be suspended from the Parliament?
    • 3.9 Who was Australia’s first leader of the opposition?
    • 3.10 What question triggered the first referendum?
    • 3.11 What issues led to the first plebiscite?
    • 3.12 Who was the first indigenous parliamentarian?
    • 3.13 When did women first vote in a federal election?
    • 3.14 Who was the first woman elected to the House of Representatives?
    • 3.15 Who was the first woman elected to the Senate?
    • 3.16 Who was the first woman appointed as a cabinet minister?
    • 3.17 Who was the first woman to lead a political party?
    • 3.18 Which party formed Australia’s first government?
    • 3.19 Who was in the first federal ministry?
    • 3.20 When was the first cabinet meeting in Canberra?
    • 3.21 Who was Australia’s first prime minister?
    • 3.22 Who was the first and only prime minister to be sacked by the governor-general?
    • 3.23 How many Australian prime ministers have died in office?
    • 3.24 Who was the first prime minister to serve less than a year?
    • 3.25 Who was Australia’s first Head of state?
    • 3.26 Who was Australia’s first governor-general?
    • 3.27 Who was Australia’s first Australian-born governor-general?
  • 4. Australia's Parliament House
    • 4.1 Why is Australia’s Parliament House located in Canberra?
    • 4.2 When was Australia’s Parliament House opened?
    • 4.3 Who designed Australia’s Parliament House?
    • 4.4 How much did Australia’s Parliament House cost to build?
    • 4.5 Why was the new Parliament House built?
    • 4.6 Who works in Australia’s Parliament House?
    • 4.7 Who visits Australia’s Parliament House?
    • 4.8 What are some facts about the Parliament House flagpole?
    • 4.9 Which timbers are used in Parliament House?
    • 4.10 What is in the Parliament House art collection?
    • 4.11 Why are there so many gardens?
    • 4.12 What gives the building its sense of space and light?
    • 4.13 Why are there so many clocks?
    • 4.14 What stone is used throughout the building?

• Our Parliament

  • 5. How the Parliament Works
    • 5.1 What is the Parliament of Australia?
    • 5.2 What does the Parliament of Australia do?
    • 5.3 Where is the Parliament of Australia?
    • 5.4 When does the Parliament of Australia meet?
    • 5.5 Who are members of parliament?
    • 5.6 What is the House of Representatives?
    • 5.7 What is the Senate?
    • 5.8 What happens in the two chambers?
    • 5.9 What is the main committee?
    • 5.10 What are the standing orders?
    • 5.11 How is the government formed?
    • 5.12 What is the role of the government backbench?
    • 5.13 How is executive government formed?
    • 5.14 What is the role of executive government?
    • 5.15 How is the opposition formed?
    • 5.16 What does the opposition do?
    • 5.17 Who is the Prime Minister of Australia?
    • 5.18 What does the Prime Minister do?
    • 5.19 Who is the Leader of the Opposition?
    • 5.20 What does the Leader of the Opposition do?
    • 5.21 Who is the Leader of the Government in the Senate?
    • 5.22 Who is the Leader of the Opposition in the Senate?
    • 5.23 What do ministers do?
    • 5.24 What do shadow ministers do?
    • 5.25 What do frontbenchers do?
    • 5.26 What do backbenchers do?
    • 5.27 Why are some members and senators called ‘Honourable’?
    • 5.28 What is the significance of the Australian Coat of Arms?
    • 5.29 How do the Parliament and executive government work together?
    • 5.30 What is a minority government?
  • 6. Representation
    • 6.1 What is representative democracy?
    • 6.2 How do you become a representative in the Parliament of Australia?
    • 6.3 What is an election?
    • 6.4 Who calls an election?
    • 6.5 How is an election won?
    • 6.6 What happens after an election?
    • 6.7 What is an electorate?
    • 6.8 What is a state?
    • 6.9 What is a territory?
    • 6.10 What is a plebiscite?
    • 6.11 How many plebiscites have been held in Australia?
    • 6.12 What is a referendum?
    • 6.13 What is a hung parliament?
  • 7. House of Representatives
    • 7.1 What does the House of Representatives look like?
    • 7.2 What is the role of the House of Representatives?
    • 7.3 Who is the current Speaker of the House of Representatives?
    • 7.4 What does the Clerk of the House of Representatives do?
    • 7.5 What does the Serjeant-at-Arms do?
    • 7.6 What is the Mace?
    • 7.7 What do members do?
    • 7.8 How many members are in the current House of Representatives?
    • 7.9 What is the current composition of the House of Representatives?
    • 7.10 Who is the current Prime Minister of Australia?
    • 7.11 Who is the current Leader of the Opposition?
    • 7.12 How many women are currently in the House of Representatives?
  • 8. Senate
    • 8.1 What does the Senate look like?
    • 8.2 What is the role of the Senate?
    • 8.3 Who is the current President of the Senate?
    • 8.4 What does the Clerk of the Senate do?
    • 8.5 What does the Usher of the Black Rod do?
    • 8.6 What is the Black Rod?
    • 8.7 What do senators do?
    • 8.8 How many senators are in the current Senate?
    • 8.9 What is the current composition of the Senate?
    • 8.10 Who is the current Leader of the Government in the Senate?
    • 8.11 Who is the current Leader of the Opposition in the Senate?
    • 8.12 How many women are currently in the Senate?
  • 9. Presiding Officers
    • 9.1 Who are the presiding officers?
    • 9.2 What does the President do?
    • 9.3 How is the President elected?
    • 9.4 Where did the title President come from?
    • 9.5 What does the Speaker do?
    • 9.6 How is the Speaker elected?
    • 9.7 Why is there a Speaker?
    • 9.8 Who are parliamentary officers?
  • 10. Political Parties
    • 10.1 What is a political party?
    • 10.2 What do political parties do?
    • 10.3 What is a parliamentary party?
    • 10.4 What do parliamentary parties do?
    • 10.5 What is 'crossing the floor'?
    • 10.6 What is the role of a party whip?
    • 10.7 What political parties exist at the federal level?
    • 10.8 What is an Independent?
    • 10.9 What is a coalition?
  • 11. Laws and Bills
    • 11.1 What is a law?
    • 11.2 What power does the Parliament have to make law?
    • 11.3 What power do state and territory parliaments have to make law?
    • 11.4 What power do local representative bodies have to make law?
    • 11.5 What is a bill?
    • 11.6 How are bills drafted?
    • 11.7 What is the first reading of the bill?
    • 11.8 What is the second reading debate?
    • 11.9 What is a division?
    • 11.10 What is the second reading of the bill?
    • 11.11 What is consideration in detail and committee of the whole?
    • 11.12 What is the third reading of the bill?
    • 11.13 How do the chambers differ in their law-making roles?
  • 12. Parliamentary Committees
    • 12.1 What is a parliamentary committee?
    • 12.2 What do parliamentary committees do?
    • 12.3 How do parliamentary committees work?
    • 12.4 What is a senate committee?
    • 12.5 What is a House of Representatives committee?
    • 12.6 What are joint committees?
    • 12.7 What are Senate Estimates hearings?
  • 13. Information about Parliament
    • 13.1 What is Hansard?
    • 13.2 What is the parliamentary press gallery?
    • 13.3 How do members of parliament get publicity?
    • 13.4 What is the role of the media?
    • 13.5 What are parliamentary publications?

• Our Government

  • 14. Governing Australia
    • 14.1 How is Australia governed?
    • 14.2 What is federal executive government?
    • 14.3 Who is responsible for making federal law work?
    • 14.4 What are state and territory governments?
    • 14.5 Who is responsible for making state laws work?
    • 14.6 What are local governments?
    • 14.7 Who is responsible for making local law work?
  • 15. Parliamentary Principles
    • 15.1 What is responsible government?
    • 15.2 What is the principle of separation of powers?
    • 15.3 What is ministerial responsibility?
    • 15.4 What is the principle of rule of law?
  • 16. Executive Government—the Cabinet
    • 16.1 What is executive government?
    • 16.2 What does executive government do?
    • 16.3 How does executive government make decisions?
    • 16.4 Where does executive government meet?
    • 16.5 Who attends Cabinet?
    • 16.6 Why are Cabinet meetings secret?
  • 17. Alternative Government—the Opposition
    • 17.1 What is the opposition?
    • 17.2 What is the role of the opposition?
    • 17.3 What is the role of the Leader of the Opposition?
    • 17.4 How can the Leader of the Opposition become the Prime Minister?
    • 17.5 Where does the opposition meet?
    • 17.6 What is the Shadow Cabinet?
    • 17.7 Who are Australia's past leaders of the opposition?
  • 18. Governor-General
    • 18.1 Who is the Governor-General?
    • 18.2 How is the Governor-General chosen?
    • 18.3 What power does the Governor-General have?
    • 18.4 What are the Governor-General’s duties?
    • 18.5 What is the Federal Executive Council?
    • 18.6 Who is the current Governor-General?
    • 18.7 Who were the past Governors-General?
  • 19. Prime Minister
    • 19.1 Who is the prime minister?
    • 19.2 How is the prime minister appointed?
    • 19.3 What is the role of the prime minister?
    • 19.4 How long can the prime minister stay in office?
    • 19.5 Who are Australia’s past prime ministers?
  • 20. The Budget
    • 20.1 What is the Budget?
    • 20.2 Where does the money for the budget come from?
    • 20.3 What is the budget speech?
    • 20.4 What happens once the Budget bills have been introduced?
    • 20.5 How is the money shared?
  • 21. Government Departments
    • 21.1 What are government departments?
    • 21.2 What do government departments do?
    • 21.3 How do government departments pay for the services they provide?

• Our Judiciary

  • 22. Interpreting the Law
    • 22.1 What is the role of the courts?
    • 22.2 What is the difference between statute and common law?
    • 22.3 How can judges make law?
    • 22.4 What if the parliament is unhappy with a court’s interpretation of the law?
    • 22.5 Can common law override an Act of Parliament?
  • 23. Australian Courts
    • 23.1 What role do the courts play in Australian governance?
    • 23.2 Do the police belong to the Judiciary?
    • 23.3 What is the judicial hierarchy?
    • 23.4 Why is a hierarchy important?
    • 23.5 Who appoints judges and magistrates?
  • 24. High Court of Australia
    • 24.1 What is the High Court?
    • 24.2 Where is the High Court?
    • 24.3 What does the High Court do?
    • 24.4 Where does the High Court get its power?
    • 24.5 What is the role of the Chief Justice?
    • 24.6 How are chief justices appointed and dismissed?
    • 24.7 What happens when the High Court makes its decision?
  • 25. Judicial Independence
    • 25.1 How does the judicial system support our democracy?
    • 25.2 Why must the judicial system be independent?
    • 25.3 What is the principle of judicial review?