Judge-made law — known as common law — is law that has developed from judgments handed down in court. It is most often used to make decisions about areas that are not included in Acts of Parliament. Judges are also required to interpret legislation if there is a dispute about the meaning or how to apply an Act in a case.
These interpretations then become part of the common law. The High Court, in the Wheat Case [35] , held that, notwithstanding the explicit reference to "powers of adjudication" in s , the Constitution was framed on the fundamental principle of the separation of powers, and that the judicial power of the Commonwealth could be validly invested only under Ch III of the Constitution, in a court there referred to. The Constitution, in s , was said to have provided only for an administrative and consultative organ, with incidental quasi-judicial functions, of the kind exercised by a Commissioner of Patents or a Collector of Customs.
The decision had major implications for the principles of the separation of powers and the rule of law. Sir Owen Dixon's statement, in the Communist Party Case , that the Constitution was framed in accordance with traditional conceptions such as the separation of powers and the rule of law, raises an issue as to how those conceptions may be used to resolve questions of constitutional interpretation.
As was noted earlier, the content of the conceptions is a matter of contention. The same may be said of representative democracy. Is it only the minimum content, or essence, that can be used to inform a proper understanding of the Constitution? To what extent can contestable opinions about what the rule of law entails in a liberal democracy of the 21 st century provide a legitimate basis for the interpretation of an instrument of government?
Sir Owen Dixon was referring to conceptions that he described as "traditional", by reference to which the Constitution was framed. Traditional as those conceptions may be, they are far from precise. To what extent is it consistent with the proper function of a court interpreting the Constitution to go beyond their essential, and generally agreed content, as a guide to the meaning of that text? This is a perennial problem, which may have significance in relation to the powers of the Parliament concerning judicial review of administrative action.
Judicial review of administrative action Judicial review of administrative action is a familiar example of the application of the rule of law. Whether, in a given case, its basis is constitutional, as in an application for an order under s 75 v of the Constitution against an officer of the Commonwealth, or statutory, as in proceedings under the Administrative Decisions Judicial Review Act Cth or the Migration Act Cth , or the common law, as in an application to a Supreme Court for a prerogative writ against a lower court or administrator amenable to such a writ, the essence of what is involved is to compel those invested with governmental power to exercise such power according to law.
Where what is in question is a decision of an administrative tribunal, or a court of limited jurisdiction, in Australia the distinction between jurisdictional and non-jurisdictional error remains significant, although its practical content may depend upon the nature of the decision-making body [36]. Section 75 v , included in the Constitution to ensure that Federal officials did not exceed their authority, now operates as an important source of power in the Federal judiciary, especially the High Court, to require officers including judicial officers of the Commonwealth to act within the law.
Of course, it is for the Parliament, in the exercise of its legislative power, to enact the law to which such officers must conform, but the Parliament's legislative power is limited by the Constitution itself. The debate as to whether ultra vires is a complete explanation of the basis of judicial review, the courts measuring the conduct of the decision-maker against the statute pursuant to which impugned action is taken, construed in the light of established principles, or whether the common law is a separate source of judicial power, must in any event take account of the power of Parliament acting within the Constitution to alter the common law.
In the development of administrative law, the focus was upon the powers and duties of administrators. More recently, there has been a tendency to focus upon the rights of citizens. This tendency is strongest in countries which, unlike Australia, have formal Charters or Declarations of Rights.
Where declared rights are part of the law, then they are part of the scheme to which administrators must conform. Even in Australia, a rights-conscious community is not slow to resort to litigation aimed at keeping the executive within the law.
This brings me to the subject of privative causes. A statutory provision that effectively limits or excludes judicial review of administrative action is as much a part of the law as a provision that empowers administrative action. But Parliament's capacity to empower administrative action is fettered by the limits imposed by the Constitution upon its powers.
And, as the Constitution assumes the rule of law, a question may arise as to the consequences of that assumption in this context. In Australia, privative clauses were originally used by parliaments most commonly in the field of industrial law, for the purpose of confining the capacity of the ordinary courts to interfere in the decision-making of specialist industrial tribunals.
Much of the learning on the subject developed in that area. More recently, immigration law has been the growth area for litigation seeking to challenge administrative decisions, and for parliamentary response in the form of limitations on the scope for curial intervention. As the basis for judicial supervision of administrative conduct is the need to ensure that an official who is given, by statute, a certain power, acts within that power, and conforms to the express and implied conditions which are imposed upon its exercise, a privative clause presents a conceptual problem.
There is an apparent inconsistency between a provision defining and limiting power, and a provision which appears to say that such a limitation may not be invoked as a ground of challenge to a decision made in the exercise of such a power. The approach that has prevailed to date in Australia has been to treat the problem as one of statutory construction, and to seek to resolve the inconsistency in that manner.
It was formulated by Dixon J in The King v Hickman; Ex parte Fox and Clinton [37] , and has since been followed in many cases, although some aspects remain to be explored fully. In brief, the statute in that case was construed to mean that the decision in question would not be invalidated on the ground of failure to conform to the limitations on power or authority, or the manner of its exercise, contained in the statute, provided that the decision was a bona fide attempt to exercise the power, that it related to the subject matter of the legislation, and that it was reasonably capable of reference to the power.
That may be regarded as a qualified amplification of the power. Legal theory does not require the conclusion that all forms of restriction upon the capacity of the judiciary to override executive action on legal grounds necessary involve a derogation from the rule of law. Subject to any limits on legislative power imposed by the Constitution, it is for Parliament to define the power and jurisdiction of administrators and tribunals.
The essential supervisory role of the courts is to ensure that the recipients of the power or jurisdiction conform to the terms and legal conditions upon which it is conferred, and by which it is confined.
But not all courts have that role, and most courts have a jurisdiction which is created, and may be limited, by Parliament. To the extent to which a privative clause, properly construed, lawfully amplifies power or limits jurisdiction, then respect for the rule of law requires courts to give effect to that expression of legislative will.
Subject to the Constitution, the Parliament, in the exercise of its legislative power, is not obliged to maximise the area of potential justiciability of disputes between citizen and government.
In this context, an appeal to the rule of law may be to its aspirational rather than its formal content. It may be an appropriate use of political rhetoric to contend that a privative clause is a derogation from the rule of law, but that is not a substitute for legal analysis. And the primary focus of legal analysis will be the legislative competence of the Parliament.
If such competence exists, the rule of law requires that its exercise be respected by the judiciary. The two most obvious potential constraints upon the capacity of the Parliament to enact privative clauses are s 75 v of the Constitution, which confers upon the High Court a jurisdiction that cannot be diminished by Parliament, and the limitations upon the subject matters with respect to which the Parliament has power to enact laws.
The ultimate bounds are set by the limits upon the power of Parliament itself. This is a point at which the Constitution's assumption of the rule of law may be significant. The extent to which it is within the competence of Parliament to exclude all forms of judicial review of administrative action remains to be defined. The complexities of the interplay between legislative will, executive action, and judicial power will continue to evolve. The ultimate principle underlying the role of judicial supervision, however, is simple.
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What is the law? How Laws Are Made This document gives a broad outline of where laws come from in the United States beyond just the parts of the lawmaking process you can see here on GovTrack. What is it? The Constitution is the founding document of the country and is the highest legal authority. Ratified in , and in operation since , it sets the fundamental structure and limitations of the government of the Untited States of America. The Constitution gave different but overlapping powers to the branches so that no branch has the highest authority but all branches are involved in the creation of law.
What does it mean today? The Constitution was necessarily vague when it was written. The founders of the nation could not anticipate all possible problems that would face the nation. As a result, more than years of court cases have given more precise meaning to the original text. This Annotated Constitution explains what the original text of the Constitution is now understood to mean.
How is Constitutional law created? The Constitution can still be amended by a process involving the Congress and the states, though this is rare. When an amendment is proposed by the Congress, you can see it here on GovTrack as a joint resolution. Constitutional law is also created as new court cases refine the meaning of the original document see case law below.
This Law is Called: Statutes. Congress is the first branch of government created by the Constitution and it is primarily responsible for creating national law, subject to the limitations set in the Constitution. Legislation or Statute Law Parliaments pass laws or 'statutes'. These can be Federal or State Parliaments, depending on what the laws are about. The Australian Constitution sets out the powers of the Federal Parliament. The States retain all other residual powers and may pass laws in all areas not specifically allocated to the Commonwealth.
Laws passed by parliaments often give Ministers the power to make regulations under a particular Act such as road traffic rules - thus Ministers can, in effect, make laws, although these can be overridden by a House of Parliament. Generally, where state and Commonwealth laws disagree on a particular subject, the court will find the Commonwealth law to be superior.
The highest or basic form of state law is constitutional law, which is that founded on the interpretation of the New South Wales Constitution. Case Law or Common Law The courts are the custodians of the rights of citizens; they interpret laws passed by parliament; and, through their decisions, make the common law.
The courts usually follow precedent; that is make decisions based on what earlier courts have decided was the law when similar facts were presented in a case. However, judges often have to decide how to apply the law to a completely new situation.
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