Keith Mack
In Australia, legislation is law made by parliaments, also known as Acts of Parliament. Laws are often called legislation. A law passed by the Australian Parliament is called an Act of Parliament. Laws start as bills (proposed laws) which put policies into action. Bills are considered by the Parliament, and if passed, are signed into law by the Governor-General. This is called giving the Bill royal assent. The legislative powers of parliaments are governed by the Commonwealth and State constitutions. This principle is controversial because it means that, in theory, parliament can make any law it wants to, even if it goes against basic rights.
| Characteristics | Values |
|---|---|
| Definition | Legislation is a general term covering laws enacted by parliaments, plus laws made by persons or bodies granted law-making powers by the parliament. Law is the written law created by parliament. |
| Other names | Legislation is also known as Acts, Statutes, or Acts of Parliament. Law is also referred to as Acts or Statutes. |
| Creation | Legislation is made by the Commonwealth Parliament, State Parliaments, and by the legislatures of the Northern Territory, the Australian Capital Territory, and Norfolk Island. Laws start as bills, which are proposed laws that put policies into action. |
| Amendment | Legislation often changes over time and is occasionally repealed altogether. Laws are amended through amending acts. |
| Delegated legislation | Delegated legislation refers to laws made under the delegated authority of parliament. These laws can be created and changed without requiring parliamentary approval. |
| Sovereignty | In the event of a conflict between legislation and common law, legislation prevails. |
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What You'll Learn
Legislative Acts vs Regulations
In Australia, legislation is law made by parliaments. It is also known as statute law, statutes, or Acts of Parliament. An Act of Parliament is a law passed by the Australian Parliament. Laws start as bills, which are proposed laws that put policies into action. A bill is introduced by a Member of Parliament, who gives a speech describing the intent of the proposed law and why it is necessary. This is called the Second Reading Speech. After the second reading speech, a bill is discussed in Parliament and may be voted on. If passed, it is signed into law by the Governor-General, which is called giving the bill royal assent. At this point, the bill becomes an Act of Parliament.
Regulations are a form of delegated legislation, which is created by the responsible entity to provide greater clarity on when, how, and where an Act should be enforced. These instruments have the same power and force as any other law. However, delegated legislation does not need to be passed by Parliament and can be easily changed by the relevant minister or government department. To compensate for the lack of parliamentary scrutiny, most delegated legislation automatically expires or must be renewed after a certain period.
An Act of Parliament, or legislation, is created through a more rigorous process involving parliamentary debates and votes, and it generally carries more weight than regulations. While regulations provide clarity and details on the enforcement of Acts, they are often created and amended without requiring parliamentary approval.
In summary, Acts of Parliament are the primary source of law in Australia, formed through a process of parliamentary debates and votes, while regulations are a form of delegated legislation that provides additional details on the enforcement of Acts and can be created and amended by relevant authorities without requiring parliamentary approval.
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Delegated legislation
In Australia, laws are made by the Commonwealth Parliament, State Parliaments, and the legislatures of the Northern Territory, the Australian Capital Territory, and Norfolk Island. Laws passed by the Australian Parliament are called Acts of Parliament.
A law starts as a bill, which is a proposed law that puts policies into action. A bill is introduced by a Member of Parliament, who gives a speech describing the intent of the proposed law and why it is necessary. This is called the Second Reading Speech. Bills are considered by the Parliament, and if passed, are signed into law by the Governor-General. On behalf of the Sovereign (the reigning King or Queen of the United Kingdom, who is also the King or Queen of Australia), this is called giving the bill royal assent.
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How laws are made
In Australia, laws are made by the Commonwealth Parliament, State Parliaments, and the legislatures of the Northern Territory, the Australian Capital Territory, and Norfolk Island. Local governments are also given certain powers by parliaments to make laws.
The law-making process in Australia involves several steps. Firstly, ideas for new laws can originate from various sources, including government departments, community groups, businesses, lobby groups, and political parties. For instance, a government department may identify an issue that needs addressing and request a bill to rectify it.
Once an idea for a law is proposed, it takes the form of a bill—a written proposal for a new law or a change to an existing one. A bill is introduced by a Member of Parliament, who delivers a Second Reading Speech to explain the intent and necessity of the proposed law. This speech is accompanied by Explanatory Materials, providing further details on the bill's purpose.
After the Second Reading Speech, the bill undergoes discussion and may be voted on by Parliament. These discussions and votes are recorded as Parliamentary Debates in Hansard, which can be searched online. Before voting, Senate and House committees scrutinise the bills, seek feedback from Australians, and make recommendations. Additionally, all bills introduced into Parliament are checked by the Joint Committee on Human Rights to ensure compliance with Australia's human rights commitments.
For a bill to become a law, it must be agreed upon by both the Senate and the House of Representatives. Once passed by Parliament, the bill is signed into law by the Governor-General, giving it Royal Assent. At this point, the bill becomes an Act of Parliament. The commencement date of the Act may be specified within the legislation or left for the government to decide.
It is important to note that legislation can be amended or repealed over time. An amending Act must be introduced as a bill and passed by Parliament, unless it is delegated legislation, which can be created and changed without parliamentary approval. Delegated legislation, in the form of regulations, standards, rules, or determinations, provides clarity on the enforcement of an Act. It carries the same power and force as any other law but typically has a 'sunsetting' clause, requiring renewal after a certain period.
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Parliamentary sovereignty
In Australia, the idea of parliamentary sovereignty must be understood in the context of the rigid limits and boundaries imposed by the federal Constitution and, to some extent, by the State Constitutions. Australia's obligations under various international treaties, conventions, and covenants also place limits on parliamentary sovereignty.
The principle of parliamentary sovereignty means that Parliament has the right to make or unmake any law and that no person or body is recognised by the law as having the right to override or set aside the legislation of Parliament. This principle is controversial because it means that, in theory, Parliament can make any law it wants to, even if it goes against what most people regard as their basic rights.
In Australia, the Commonwealth Parliament is created by the federal Constitution and only has enumerated powers. Each state's legislative power is inherent but restrained by the federal Constitution, the relevant state constitution, and Commonwealth powers.
The practical result of parliamentary sovereignty is that legislation prevails over common law. If there is a conflict between legislation and common law, legislation will override the common law, as long as the conflict is clear.
There are several laws and conventions that limit the exercise of parliamentary sovereignty. For example, some matters relating to the electoral system may only be altered by a parliamentary supermajority or by a majority in a popular referendum.
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Legislation vs Common Law
Legislation, also known as statute law, statutes, or Acts of Parliament, is the written law created by the parliament. In Australia, legislation is made by the Commonwealth parliament, State parliaments, and by the legislatures of the Northern Territory, the Australian Capital Territory, and Norfolk Island. Bills are proposed laws that put policies into action. They are introduced by a Member of Parliament, who gives a speech describing the intent of the proposed law and why it is necessary. This is called the Second Reading Speech. After the second reading speech, a Bill is discussed in parliament and may be voted on. If passed, it is signed into law by the Governor-General, giving it royal assent.
Common law, on the other hand, refers to the decisions made by courts. It is one of the two primary sources of the law, the other being legislation. Common law is a British legal tradition that defines and protects individual rights and liberties. Australia, a common law country, has inherited this tradition and largely relied on it during its constitution-making. Common law courts in Australia have the power to provide significant protection of human rights principles, including the rule of law, except where legislation specifically overrides this power.
In the event of a conflict between legislation and common law, legislation takes precedence and overrides common law. However, this conflict must be clear, and there is a presumption that rights under common law continue unless legislation explicitly removes them. This presumption is based on the principle that legislation is intended to be consistent with fundamental rights. While Australia does not have a Constitutional Charter or Bill of Rights, the legislative powers of parliaments are governed by the Commonwealth and State constitutions.
Both legislation and common law are dynamic and can change over time. Legislation can be amended or repealed, while common law principles can evolve through judicial interpretations and decisions. Additionally, delegated legislation, which includes regulations, standards, rules, determinations, and ordinances, can be created and modified without parliamentary approval.
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Frequently asked questions
Legislation is a general term for laws enacted by parliaments, as well as laws made by persons or bodies with law-making powers granted by the parliament. Law, or case law, refers to the decisions made by courts.
Legislation is made by the Commonwealth parliament, State parliaments, and by the legislatures of the Northern Territory, the Australian Capital Territory, and Norfolk Island. A bill is introduced by a Member of Parliament, who gives a speech describing the intent of the proposed law. This is called the Second Reading Speech. The bill is then discussed in parliament and may be voted on. If passed, it is signed into law by the Governor-General, becoming an Act of Parliament.
Delegated legislation, or subordinate legislation, refers to laws made under the delegated authority of parliament. It is created by a minister or government department and can be in the form of regulations, standards, rules, determinations, ordinances, etc. It has the same power and force as any other law.
