Brew Basics: Legislation

7 mins

Continuing on from last week’s coverage on case law, we turn to legislation—an important source of laws in Australia.

What is legislation?

Legislation, also known as statute, is a broad catch-all term for laws made by parliament—as opposed to the courts. There has been a significant increase in legislation made by parliaments across Australia over the past few decades. It reflects the increasing level of complexity in our dealings in society.

A benefit of legislation is that, unlike the courts, parliaments do not have to wait for a dispute to happen before deciding on a position. Courts, in comparison, only decide legal questions when cases come before them.

Parliaments have significant powers in the common law system. The laws they make ‘take precedence’ over case law, and can override case law. This practice comes from 17th century English history, where the struggle between the ruling Stuarts and the House of Commons led to the doctrine of parliamentary supremacy over the courts.

In Australia, the tension between parliaments and the courts plays out most prominently in cases involving the Migration Act 1958 (Cth). However, a lot of legislation is uncontroversial in that it simply codifies legal principles made over time by judges. The Crimes Act 1914 (Cth) and Evidence Act 1995 (Cth), and equivalents in each State and Territory are good examples of this.

Act vs. Regulation vs. Bill?

When you talk to anyone about legislation (fun times), you’ll notice a bit of laxity around the words ‘Act’, ‘legislation’, and ‘statute’. They are often used interchangeably.

You should bear the following distinctions in mind:

  • There are two forms of legislationStatutes or Acts made by parliament can give power to certain office-holders (e.g. Governor-General, Governor, Minister, or statutory bodies like local councils) to make subordinate or delegated legislation, such as rules, regulations, ordinances, by-laws or legislative instruments.
  • Bills vs. Acts—’Bills’ are proposed laws that parliament hasn’t yet enacted. There must be a majority vote by parliament in favour of a Bill before it becomes law (i.e. comes into force) and becomes an Act. There are plenty of failed Bills in the cemetery of failed ideas. The ones that become an Act only make it after undergoing a pretty arduous process.

Every Fed, State (and Territory) has ‘em

There are nine major legislatures (i.e. parliaments) that can enact legislation. For an overview of the types of legislation across jurisdictions, check out the links below:

  1. Commonwealth
  2. Australian Capital Territory
  3. New South Wales
  4. Northern Territory
  5. Queensland
  6. South Australia
  7. Tasmania
  8. Victoria
  9. Western Australia

So what laws can each parliament make? To answer this, you need to go back to the Commonwealth of Australia Constitution Act 1900 (Imp)—in other words, the Australian Constitution.

The Australian Constitution divides up powers belonging to the Commonwealth and State/Territory parliaments. At federation in 1901, the Commonwealth (i.e. Federal) Parliament was given power over certain matters, including tax, defence, trade and commerce, immigration, and industrial arbitration.

Subject to this, the State/Territory parliaments have almost unlimited powers to legislate for matters relating to their State/Territory, under their respective Constitutions. In this time of COVID-19, the division of powers matters more than ever—with States and Territories responsible for schools and hospitals.

Legislative flavours

At the Federal level, the Corporations Act 2001 (Cth) is one of the most-used pieces of legislation.

The States/Territories have similar legislation in certain areas. For example, all have their own Constitutions, statutes governing the interpretation of legislation, courts, civil procedure, criminal procedure, and so on. But there are differences. The Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic), for example, only applies in Victoria.

As you can imagine, the legislation in each State and Territory spans a wide range of topics. Taking Victoria as an example, laws extend to::

More obscure laws include the Age of Majority Act 1977 (Vic), which tells us that the legal age in Victoria is 18. There is also the Nudity (Prescribed Areas) Act 1983 (Vic), which allows the Minister to designate an area for naturist activities.

How to find legislation

The best way to find legislation is through indexing systems like Lawlex or Austlii. Both are free to use. I prefer Lawlex when it comes to tracking down the latest version of legislation.

If you know exactly what you’re looking for, you can visit the relevant government website for legislation. The Federal version is at www.legislation.gov.au.

Anatomy of an Act

Now, for a dissection. Let’s take the Corporations Act 2001 (Cth) as an example.

The cover page

The official version of an Act always has a decent-looking cover page. It tells you the name of the Act, the number and compilation, and when it was last updated. At the time of writing, the latest version available includes amendments from “Act No. 22, 2020”, which is the Coronavirus Economic Response Package Omnibus Act 2020 (Cth) passed by Federal parliament on 25 March 2020.

Table of contents

Then there is the table of contents. We always skim-read this first to understand the structure of the Act, and to avoid wallowing in legislative text!

We call each numbered provision “section” and provisions under those “subsection”. Sometimes there are so many amendments to an Act that you can end up with various letters at the end of the section number. For example, a new section between sections 10 and 11 would usually be “10A”. And a section between 10A and 10B might be “10AA”, “10AB”, etc. And so it goes.

A lengthy Act like the Corporations Act 2001 (Cth) is broken down into Chapters, Parts, then Divisions, Subdivisions—and then Schedules at the end.

Introducing…

The introductory sections of the Act are also important.

Section 1 of an Act is often headed “short title” and tells you the name of the Act. Sometimes there is a “long title”, which is set out at the top, “An Act to make provision in relation to corporations and financial products and services, and for other purposes” (whew, what a mouthful!).

Timing is everything

The Act will also tell you when it starts operating as a law. In this case, it starts on a “day to be fixed by Proclamation”. Sometimes it might say that the Act “shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.” You’ll have to track down the Proclamation or announcement in the relevant Government Gazette that tells you when an Act comes into force.

The meaning of life the Act

There is also often an “Objects” section, which tells you the Act’s purpose and what it covers. It’s a crucial part of statutory interpretation—a fancy word for “working out the meaning of a piece of legislation”.

Another important part of any Act is the ‘dictionary’ or ‘definitions’ section.

Once you’ve gone through all that, then you start reading proper.

Random bits and pieces

A common mistake that law students make is forgetting to tie up loose ends. They include:

  • looking at the right version of the Act in force—especially when considering historical events;
  • checking for subordinate legislation, e.g. regulations, made under the Act. The magic words to look for in an Act is where says something can be “prescribed” (allowed) or “proscribed” (disallowed)—essentially, through regulation or other subordinate legislation; and
  • remembering to read the Explanatory Memorandum (EM) and Second Reading speech when engaging in statutory interpretation.

They go as they come

Finally, legislation isn’t set in stone. Parliaments can pass further legislation—known as amending acts—to amend, repeal (i.e. remove), insert, or substitute provisions in existing acts.

So there you have it—a summary of legislation!

Image credit (main) // Aditya Joshi

Further reading:

  • Catriona Cook, Robin Creyke, Robert Geddes, David Hamer, Laying Down the Law (2009, 7th edition, LexisNexis Butterworths). Or check out the latest edition.
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