Legislation and Statutory Interpretation

Chapter 2: Legislation as a Source of Law

Sources of Law
1. Case Law: Law developed by judges through judicial decisions.
2. Legislation: ‘Statutes’ or ‘Acts of Parliament’ – the law made federal and state
governments.

Legislation has now overtaken case law as the most prolific and significant source of law in
Australia.

Legislation encompasses:
Delegated legislation (also referred to as subordinate or secondary legislation). Instead of
being made by Parliament, delegated legislation is made under the authority of Parliament
by an individual or body including a government department. Delegated legislation is widely
used – for example, by government Ministers to make regulations and by local councils to
implement by-laws.

Usually legislation and case law co-exist without difficulty. However, there is a rule of
parliamentary sovereignty (parliamentary or legislative supremacy) meaning where there is
a conflict between statute and case law, the statute prevails. This arises from two
fundamental doctrines:
 The doctrine of separation of powers: There are 3 different kinds of power in society
and that each must be exercised by a separate group of institutions. These include:
(a) Legislative Power: The power to make laws, vested in the Parliament;
(b) Judicial Power: The power to enforce laws, vested in the courts; and,
(c) Executive Power: The power to govern and administer laws, vested in the
government and their Ministers.
 The doctrine of parliamentary sovereignty: Legislative power is supreme to both
executive and judicial power meaning laws made by Parliament prevail over any
other law, including case law.

Although legislation prevails over case law, courts play a vital role in deciding on the
meaning and application of legislation.

The Federal Government generally makes laws which affect the country as a whole. State
governments make laws on issues the federal government cannot – for example, education,
health, environment, crimes, emergency services etc.

If there is commonwealth and state law on the same issue and the laws are inconsistent,
commonwealth law prevails.

International laws do not have direct operation or effect within Australia unless specific
legislation is passed by the commonwealth to give effect to such laws.
Reading Legislation:
Read the preamble, short title and the purpose clause (if any) to determine what the Act is
about.
Look for an index or scan the main headings.
Look through the definitions for key terms.
When reading sections of legislation, try to establish the main idea of the provision first and
then fill in the details on a second, more careful, reading.
Pay attention to the words used.
Interpret the words (see Chapter 4).

Main Parts of an Act:

 An Act has an assigned number (the order of the Act in the year it was passed).
 The long title of an Act in general terms states the purpose of the Act.
 Some Acts have preambles which set out the main rationale or policy behind the Act.
These can sometimes be set out as object clauses.
 An Act will generally state the date it was assented to (important for knowing when
the Act came into effect as law).
 Words of enactment may appear at the start of an Act (a formal statement by
Parliament that is exercising its law-making power in passing the Act).
 Acts will contain main headings (margin notes in older Acts) and are not included as
part of the Act to be interpreted.
 Sections are the individual provisions.
 Most Acts will contain a definitions section either at the beginning of an Act,
beginning to a Part, within a section of an Act or at the end of an Act.
 Schedules appear at the end of an Act. These contain information that is not easy to
set out in the body of an Act. They often contain tables of relevant information, legal
forms, lists of amendments or the text of legal documents, such as international
conventions.
 Enabling provisions confer power to make delegated legislation under an Act. The
most common form of enabling provision confers power on the State Governor or
Federal Governor-General to make regulations that support the operation of the Act.
 Notes are increasingly being included throughout and at the end of Acts and often
set out the legislative history of the Act or a section or any amendments that have
been made to them.

Types of Acts:

 Private and Public Acts: Private Acts (historical) are no longer made today. However,
it is an Act that is not of general application and applies only to the private interests
of a particular individual or body and not to the community at large. Public Acts
apply to the public as a whole.
 Consolidations: Sometimes Parliament will consolidate a number of pieces of
legislation on a particular topic into one Act. It is done for convenience.
 Codes: A law that is design to bring together the common law and statutory
principles governing an area of law. A code brings into statutory form common law
rules that have developed through case law and statutory rules. For example, the
 Criminal Code Act 1995 (Cth) is now gradually superseding the Crimes Act 1914 (Cth)
as the principal Act containing commonwealth offences.
 Reprinted Acts and Compilations: An Act that has been amended a number of times
is reprinted to incorporate all the changes.
 Repealed Acts: An Act that has ceased to operate.

Delegated Legislation
The main types of delegated legislation are:
Regulations: Delegated legislation of general application made to further the general
purposes of an enabling act. They are the secondary laws that are most similar to statutes
and tend to contain provisions on matters of detail that are not able to be covered in the
main statute.
By-Laws: A form of delegated legislation most often made by local government authorities
and only apply within the local area, covering issues relevant to the operation of that local
government such as rubbish collection and waste management.
Statutory Rules: Pieces of delegated legislation that contain procedural rules that tend to
set out the formalities to be complied with in dealing with particular bodies, government
departments or when appearing before the courts. Eg: how court documents need to be
prepared exist under the Supreme Court Act 1933 (ACT).
Ordinances
Proclamations

Interpretation Acts: These Acts remove the need to repeat common interpretation
provisions in every Act and provide standard provisions and definitions to be used when
giving meaning to all legislation.

How Laws Are Made

Step 1: Proposal for legislation: The idea for new legislation can come from a variety of
sources:
 The government (including Cabinet) may decide as a matter of policy that a new law
or reform to the current law is needed, or may make a promise of new laws as part
of an election campaign.
 A government department which may recommend to the Minister in charge that a
new law or change to the law on a particular area is needed.
 Parliamentary Committees, which may find, as part of an inquiry into a particular
topic, that reform of the law is needed.
 Law reform commissions, which are constantly looking at areas of law that need
reform.
 Businesses, community groups, trade unions and other lobby groups which may wish
to see new laws or reforms to existing laws in areas that interest them.
 Individual Members of Parliament may put forward a new law or suggest reform to
the law on an issue of importance to them. Private Member’s Bills tend to be on
issues that are considered controversial, and on which the government is not willing
to develop an official policy. When such a Bill is introduced, the political parties
generally allow their members to vote according to their conscience and value rather
than along party lines.
Step 2: Cabinet Approval: Whatever the source of a proposed law, it is still considered by
the Cabinet as part of the legislative process and generally presented by the Minister
responsible for the area in the form of a report (not draft law). Once approval is given, the
submission is sent to the Office of Parliamentary Counsel to be drafted into law.

Step 3: Drafting: Before a Bill is drafted, the drafter will need to ensure they are familiar
with the background of the proposed Bill. This will involve considering the constitutional and
legal context of the legislation, the policy behind the proposal, any complexities in the
subject matter of the Bill, and the best structure for the legislation. The purpose is to be
clear and easy to read; accurately translates policy into law; is not capable of evasion; and, is
written to be consistent with principles of statutory interpretation. Once a Bill is drafted, it
will generally be sent to other government departments for comment. This may involve
further significant changes to the Bill.

Step 4: Passage Through Parliament: Once a Bill has been prepared, it needs to be
approved by Parliament. The Minister responsible for the area in which the Bill relates will
usually introduce the Bill into Parliament. Who that Minister is determines which House the
Bill is first introduced into (although 95% are introduced into the House of Representatives.
One type of Bill cannot be introduced into the Senate: Bills relating to finances of
government or the budget, referred to as appropriation Bills, supply Bills or taxation Bills.
These Bills finance government expenditure and must originate in the House of
Representatives.

Each House has its own rules (called ‘standing orders’) that govern the exact procedure for
how a Bill is considered in that House. However, both the House of Representatives and
Senate go through a similar process to pass a Bill:

(a) Initiation of the Bill: This is a formality. In the usual course of events, the Minister
introducing the Bill gives written notice of their intention to introduce the Bill to the
Clerk of the House who arranges for the Bill to be listed on the notice paper for the
next sitting day.
(b) First Reading: This is also a formality. The Clerk of the House reads the short title of
the Bill. The Minister responsible then rises and hands a signed copy of the Bill to the
Clerk. The Clerk then reads the long title and copies are distributed to all members of
the House.
(c) Second Reading: This takes place immediately after the first reading in which the
relevant Minister moves ‘that the Bill be now read a second time.” The Minister then
gives the second reading speech, which explains the purpose, general principles and
effect of the Bill. The second reading speech can be used by a court when
interpreting the legislation at a later time. At the end of the speech, the Minister
presents to the House an explanatory memorandum for the Bill which explains in
detail the reasons for the Bill and outlines its provisions.
(d) Second Reading Debate: This generally happens several days after the second
reading speech (or sometimes later). During the debate, the Parliament will discuss
the overall merits of the proposed law. If contentious, it may last for many hours.
 After the debate, a vote it taken on the Bill. If a majority agrees to the Bill, it will
move on to the next stage.
(e) Consideration in Detail: This step can be bypassed if no member objects to that
occurring. If not, it involves detailed consideration of the text so that changes can be
proposed. Clauses are considered in numerical order. It is also possible for a Bill to
be referred to a committee that specialises in the subject matter instead of
undergoing detailed consideration in the House. If so, the committee will prepare an
advisory report on the Bill, and can hear witnesses or gather evidence relating to it.
(f) Third Reading: This is a formality. The relevant Minister will prose a motion and
when agreed to, the Clerk will read out the long title of the Bill. There is typically no
further debate and at this point it is taken that the Bill has passed that House of
Parliament.

Step 5: Royal Assent/Commencement of Statutes: When a Bill is ultimately passed in both

Houses in identical form, it is presented to the Governor (state) or Governor-General
(federal) for assent. They will then sign the Bill in which it then becomes an Act and part of
the law of the State or country. Not all Acts become immediately law. Some specify a
particular date, such as a date to be announced by proclamation, when the Act will come
into effect (commencing on the day the proclamation appears in the government Gazette).
If no commencement date is specified, it will generally come into effect 28 days after it
receives royal assent.

Repeal and Amendment of Statutes

It is generally accepted that legislation is perpetual until it is repealed. Sometimes an Act can
have provisions that state it will cease to operate after a specific date or the happening of a
specified event (known as a sunset clause).

An Act can be expressed or implied repealed:

Express Repeal: When there is a statement in one Act that it is substituting , inserting,
omitting or repealing words or provisions in another Act.
Implied Repeal: When there is inconsistency between all or parts of two Acts. Where an Act
repeals all or part of another Act, any rights and liabilities that have already arisen under the
repealed Act generally continue to exist.