Last Updated 8 August 2016
An individual law of either a state parliament or the Commonwealth Parliament is called an Act. Acts usually take effect when they have received Royal Assent (approval) from the Queen through her representative, who is either the Governor-General (Commonwealth) or Governor (state). Often, parliaments will make an Act become law on a date to be proclaimed (published) in the Government Gazette. A Government Gazette is a periodical publication of a parliament. It contains details of decisions of the parliament, government and governmental agencies.
While an Act is in draft form, and until it has been passed by a parliament and given Royal Assent, it is called a Bill.
Acts are passed to complement or replace the common law or judge-made law, or to create laws in areas where none existed previously. Sometimes, a parliament will pass an Act that incorporates a whole section of the common law and even other existing Acts. This is called codification. For example, the Queensland Parliament codified the criminal law in Queensland in 1899 when it passed the Criminal Code Act 1899 (Qld).
From time to time, parliament will repeal (do away with) or amend (change) an Act.
An Act is not the only type of legislation. Other types of laws are made to regulate administrative procedures and other matters not dealt with by an Act of parliament. Rules, by-laws and public ordinances are made by public authorities, local councils, government ministers and public servants to complement specific Acts. The power to make these laws is delegated (given) by parliament and conferred by the Act (often called a parent Act), so that rules, by-laws and public ordinances are often collectively known as delegated legislation.
Rules, by-laws and public ordinances must be worded so they do not go beyond the boundaries laid down by the Act under which they are made.
A regulation that attempts to regulate matters outside the scope of its parent Act can be declared by a court to be of no effect.
The power of parliaments to legislate
The power of the Commonwealth Parliament to make laws is contained in what is commonly known as the Commonwealth Constitution. The Commonwealth Constitution is contained in the Commonwealth of Australia Constitution Act 1900 (Imp) (Commonwealth Constitution Act), which sets out the terms of agreement reached between the Australian colonies for a federation.
The Commonwealth Constitution contains a number of extensive powers on which the parliament can rely to make laws. The list of powers is contained in s 51 of the Commonwealth Constitution Act. Laws made by the Commonwealth Parliament apply to all Australian states and territories.
Unlike the Commonwealth Parliament, the law-making ability of state parliaments is not restricted by a list of powers. The Queensland Constitution (contained in the Constitution Act 1867 (Qld)) gives the Queensland Parliament general power to legislate for the State of Queensland. The only exceptions to absolute state legislative power reflect certain powers given exclusively to the Commonwealth by the Commonwealth Constitution. For example, the Commonwealth has exclusive power to impose duties of customs and excise. Laws made by the state parliaments apply only within the jurisdictional limits of that state (e.g. Queensland cannot make law that applies in New South Wales and vice versa).
The Commonwealth Constitution Act prohibits both the Commonwealth Parliament and state parliaments from making certain types of laws. Most importantly, s 92 of the Commonwealth Constitution Act prohibits laws and government action restricting the freedom of interstate trade and commerce.
The Commonwealth and a state may make laws regulating the same things. When this happens, the Commonwealth and state laws may conflict. If so, s 109 of the Commonwealth Constitution Act provides that the Commonwealth law will prevail over the state law. The part of the state law that is inconsistent with the Commonwealth law will have no effect.
Despite the apparently sharp differences in their powers, state governments and the Commonwealth Government are often involved in the same projects. The extent of each government’s involvement will vary according to its constitutional power. Even in areas beyond its strict legislative power, the Commonwealth may become involved through the provision of financial assistance. For example, although the Commonwealth Government does not have the constitutional power to legislate on education, it is involved by funding each state’s educational services. In that way, the Commonwealth may indirectly affect the way a state exercises its legislative powers by providing that state with ‘strings-attached’ financial assistance.
The interpretation of legislation
It is the role of judges and magistrates to interpret legislation. Judges have developed a set of rules to help them interpret Acts. The basic rule for the interpretation of Queensland legislation is that the words of the statute must be given their ordinary literal meaning. If words are ambiguous and capable of more than one meaning, secondary rules require that words be interpreted so as to avoid absurdity and best achieve what appears to have been the purpose of the Act. These rules are contained in the Acts Interpretation Act 1954 (Qld).
For Commonwealth legislation, the Acts Interpretation Act 1901 (Cth) provides that an Act should be interpreted in a way that promotes the purpose of the Act.
A court’s decision on the meaning of certain words in an Act affects not just the particular case before the court. The decision changes or confirms the meaning of the Act itself and becomes part of the common law, thus binding or guiding courts in similar future cases.