How common law is changed

Common law can be changed in two main ways.

First, Parliament can change or overrule common law by passing a new statute. If the statute deals with the same legal issue, the written law takes priority under parliamentary supremacy. From that point on, the common law principle no longer applies in situations covered by the statute.

Second, the courts themselves can change the common law, but only within the structure of the court hierarchy. A higher court, such as the High Court of Australia, may depart from an earlier decision and create a new legal principle. When this happens, the new decision becomes a binding precedent for all lower courts. By choosing not to follow an earlier authority and establishing a new rule, the higher court effectively updates or replaces the existing common law.

Common law and the rule of law

The common law contributes significantly to the operation of the rule of law in Australia. As judge‑made law, it develops through the resolution of individual disputes where no other law exists, allowing courts to refine legal principles over time. This has both advantages and limitations.

First, common law promotes predictability and stability through the doctrine of precedent, which requires courts to treat like cases alike. This consistency supports equality before the law and allows individuals to anticipate how the law will be applied in future disputes.

However, common law is often less accessible than statute law because its principles are scattered across numerous judicial decisions rather than consolidated in a single, authoritative source.

Second, common law is technically retrospective when first applied because courts develop legal principles only when a dispute is brought before them. Courts manage this retrospectivity carefully to ensure the law applies only to active and future cases, while past, finalised decisions remain undisturbed. This is also true when a higher court overrules an earlier precedent; past settled cases are not affected by the change.

Third, it is important that judges operate within institutional constraints. When interpreting and applying the law, it is not the role of a judge to conduct community or interest‑group consultations, nor to assess broad social or economic consequences. Judges must decide cases solely on the evidence presented in court and within the boundaries of the specific dispute. These constraints ensure that judicial decisions are grounded in law rather than political or economic pressures, and they safeguard judicial independence, procedural fairness, and equality before the law.

Fourth, the common law plays a vital role in protecting individual rights and freedoms through the principle of legality (the presumption that Parliament does not intend to interfere with fundamental rights unless it uses clear and explicit language), and by independently reviewing the actions of government to keep them lawful and accountable.

Finally, through transparent reasoning, independent and impartial judging, and the careful development and application of legal principles, the common law ensures that legal authority is exercised equally and fairly to everyone, rather than through arbitrary or unlawful power.

Statute Law

How statute law is made and the steps in the legislative process

Statute law, also called legislation, is made by the elected representatives of the people in Parliament. All statutes begin as a bill, which must pass through several stages of debate and voting before becoming law.

Australia has one Federal Parliament, which makes federal laws, and each state and territory has its own parliament or legislative assembly that make state laws. Most Australian parliaments are bicameral, meaning they have two houses, a lower house (House of Representatives or Legislative Assembly) and an upper house (Senate or Legislative Council). Queensland, the Northern Territory and the ACT are unicameral, with only one house. Bicameralism provides an additional layer of scrutiny before laws are passed, and acts as a check and balance on government power.

A new law usually begins as an idea responding to a community need. A member of parliament (MP) takes up that idea, and special government lawyers then draft it into a formal written proposal called a Bill.

The MP introduces the Bill to Parliament. If the MP sits in the lower house, the bill begins there; if the MP sits in the upper house, it begins in that house. The Bill then moves through several stages of debate, committee review and amendment. It can move back and forth between the two houses multiple times, a process sometimes referred to as “parliamentary ping‑pong.”

If a bill fails to pass a vote and both houses refuse to compromise, it becomes a dead bill. If both houses agree to the final version, the bill is sent for Royal Assent to the Governor General, after which it becomes an Act of Parliament and is a legally enforceable law.

How statute law is changed

Parliament can change an existing law in two ways:

• Amending a law (changing a part/section of a law)

• Repealing a law (removing it completely so it has no legal force)

To amend or repeal a law, Parliament must pass a new Bill through the same law-making process. The Bill must be approved by a majority vote in both the lower house and the upper house, and then receive Royal Assent. Once this process is complete, the amendment or repeal becomes law.

Statute law and the rule of law

Statute law also plays a central role in upholding the rule of law by ensuring laws are made in an open way by the people (or their representatives). While the common law develops gradually, case by case, Parliament can make laws proactively as society changes, drawing on broad evidence and public consultation. This legislative process helps ensure that the legal system remains clear, accessible, largely prospective, and democratically accountable.

Parliament can draw on public consultation, expert advice, community input, and scrutiny from committees when making law. This enables it to consider national security, broad social impacts, economic consequences, and the interests of different groups. If Parliament strikes the wrong balance when making a law, voters can hold it accountable at the next election, ultimately ensuring the laws are made on behalf of the people.

Unlike the common law, which responds to disputes, Parliament can legislate proactively. Statutes allow Parliament to set clear, prospective rules so people know the law in advance and can organise their lives accordingly. Have a look at this checklist for effective laws.

Parliament can make retrospective laws, but this is generally discouraged because it allows people to be punished for conduct that was not unlawful at the time, undermining fairness and certainty.

Parliament can also act quickly when urgent circumstances arise. In emergencies or rapidly changing conditions, it can introduce and pass legislation within hours if necessary. As courts cannot initiate cases or create rules unless a dispute is brought before them, statute law provides the flexibility needed to respond to unforeseen events while remaining accountable to the public and subject to scrutiny.

However, even in emergency circumstances it is essential that the usual checks and balances of the law making process are not overlooked. While the rapid passage of legislation, such as large omnibus bills debated late at night, may enable an immediate response to a crisis, it can reduce transparency, limit meaningful parliamentary scrutiny, and weaken public accountability. Striking a balance between efficiency and oversight is therefore critical to maintaining confidence in the legislative process.

Delegated legislation

Delegated legislation is law made by a body other than Parliament, such as ministers, government departments, local councils or other authorised agencies. These bodies can only make delegated legislation if an Act of Parliament (known as the parent or enabling Act) grants them the power to do so. This type of law is also called subordinate or secondary legislation because Parliament has delegated part of its law‑making authority.

Types of delegated legislation

Delegated legislation can take many forms, including regulations, rules, by-laws, ordinances, orders, and determinations. These instruments have legal force but do not need to be debated and passed by Parliament, because the enabling Act has already authorised their creation.

Role of delegated legislation

Delegated legislation plays an important role in Australia’s legal system by allowing law-making

to be more efficient, specialised, and responsive. It is used because it:

• Saves time: Parliament avoids debating detailed, technical or administrative matters.

• Uses expertise: Specialists in areas such as health, taxation, transport or aviation can draft precise rules.

• Provides flexibility: Rules can be updated quickly to respond to changing circumstances, emergencies or new information without passing a new Act.

Delegated legislation and the rule of law

Delegated legislation can create tension with the rule of law because it allows the executive branch to make rules rather than merely administer the law.

Under the separation of powers, law‑making and law‑enforcing functions are generally kept separate to prevent concerntration of power. However, delegated legislation gives law‑making authority to executive officials in certain circumstances. In doing so, Parliament transfers part of its core constitutional role of law making to unelected ministers or bodies.

To address this concern, a range of checks and balances apply to delegated legislation to help provide a level of parliamentary oversight and accountability (as seen below).

How is delegated legislation overturned?

Delegated legislation can be overturned in several ways, the most common being parliamentary disallowance and judicial review. It remains subject to both parliamentary oversight and court scrutiny because delegated legislation is made under powers granted by Parliament.

One key mechanism is parliamentary disallowance. After delegated legislation is made, it must be tabled (presented) in Parliament. Once tabled, either house of Parliament may vote to disallow, or veto, the instrument. If disallowed, the delegated legislation ceases to have legal effect.

Delegated legislation may also be overturned through judicial review. Courts can examine whether the rule‑maker acted within the scope of authority granted by the parent Act. If the court finds that the delegated legislation goes beyond this authority (known as acting ultra vires) or if it is inconsistent with the parent statute, improperly made, or otherwise invalid, the court can declare it void. When this occurs, the delegated legislation is treated as though it never had legal force.

In addition to parliamentary and judicial oversight, delegated legislation may cease through repeal or expiry mechanisms. Many parent Acts have sunset clauses, which cause delegated legislation to automatically expire after a set period unless it is actively renewed. Delegated legislation also loses legal effect if the parent Act is repealed, because the legal foundation for the subordinate rules no longer exists.

Together, these mechanisms ensure that delegated legislation remains accountable, lawful, and subject to democratic and judicial checks and balances.