LAW10010 Lecture Notes - Lecture 6: Repeal, Primary And Secondary Legislation, Radical Change
TOPIC 3: Legislation
Legislation was originally much less significant than case law.
why legislation today has become the most common source of new rules of law.
> The need for speedier amendment of the law.
> Need for the comprehensive treatment of a subject.
> Need for radical change.
Introduction
There are two forms of legislation:
> Statutes or Acts (made by parliament), and
> Delegated or subordinate legislation (made by office-holders or bodies to
whom parliament has delegated law-making power).
Delegated legislation includes rules, regulations, ordinances, by-laws and legislative
instruments.
Terminology
• Legislative bodies have a singular advantage over courts: they do not need to wait for a
dispute to arise before making new laws.
• Legislation may seek to prevent problems from occurring in the future, rather than simply
resolving disputes which have already arisen (role of courts).
• Legislative rules usually affect future action only. Case law, because it purports to be
based on an existing corpus of rules, operates with retrospective and prospective effect.
Differences between case law and legislation
• Statutes or subordinate laws which are inconsistent with later legislation are repealed to
the extent of that inconsistency.
• Courts are reluctant to find implicit repeal.
• Rules made by parliaments take precedence over rules in the form of delegated legislation
unless the parliament specifically provides to the contrary.
• Circumstances of conflict between state and Commonwealth legislation is dealt with by
Commonwealth Constitution section 109 – legislation made by the Commonwealth
Parliament prevails over inconsistent legislation on the same topic made by state
parliaments.
Value or weight of legislative rules
Parliament may change rules developed in case law.
Couts still hae the task of itepetig legislatio, although ostesily to fid Paliaets
itetio.
It falls to the courts to ensure that legislation is made only on topics within constitutional
power.
Legislation takes precedence over case law
In Australia there are nine major legislatures which may enact statutes:
> The Commonwealth Parliament
> The parliaments of the six states
> The Legislative Assemblies of the Australian Capital Territory and the Northern
Territory.
Before a statute is enacted it is known as a Bill.
The process by which statutes are made differs in detail in different parliaments.
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Amendment of Commonwealth Constitution: amending laws must be passed by a majority of
electors in a majority of states, and by an overall majority of electors across the
Commonwealth [Commonwealth Constitution s 128].
Legislative process
Statement of compatibility
Cth
Legislative
Process
Important to know when legislation comes into force.
The point in time on the day of commencement that an Act begins to apply is spelled out in
interpretation legislation.
Enactment and commencement are distinct.
Generally, an Act will commence operation at or some time after enactment. Rarely, an act
may have retrospective application.
Commencement of statutes
Commonwealth statutes come into force 28 days after the date of the Governor-Geeals
assent unless another commencement date is specified in the Act.
Acts which amend the Commonwealth Constitution commence on the date of assent. [Acts
Interpretation Act 1901 (Cth) s 3A]
It is common for a statute itself to specify its date of commencement or to nominate separate
dates for particular provisions.
Commonwealth statutes
• New South Wales and Western Australia: Statutes commence 28 days after the
date of assent unless another date is specified.
Queensland, South Australia and Victoria: A statute commences on the day on which it
receives the royal assent, unless a contrary intention appears in the statute.
Tasmania: Acts assented come into effect 14 days after the date of assent.
State statutes
Australian Capital Territory: Commencement occurs on the day following the date of
notification from the Australian Government Gazette 1989-2002. Now, day after notification
in the Legislation Register unless otherwise specified.
Northern Territory: Acts assented to by the Administrator of the Territory come into effect on
the day of assent. If reserved for assent by the Governor-General, then the day assent is
notified in the Northern Territory Gazette.
Territories
When different commencement dates are specified for different parts of an Act this may be
to allow for the completion of administrative steps necessary to bring the Act into operation.
Other commencement dates
• A special kind of commencement date for statutes occurs where statutes are revived.
• It is a device employed when a statute which has been repealed is brought into force again
for a specified period.
• The commencement date and usually the expiry date is specified in the reviving Act.
• ‘eiig a statute ay also e euied he a statute has a suset lause.
• A sunset clause states that the Act is to cease to operate after a fixed period. If the sunset
is timed to occur before the Act has ceased to be useful, a reviving statute may be needed
to continue the statute in operation.
Revised statutes and sunset clauses
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Document Summary
Legislation was originally much less significant than case law. why legislation today has become the most common source of new rules of law. > the need for speedier amendment of the law. > need for the comprehensive treatment of a subject. > statutes or acts (made by parliament), and. > delegated or subordinate legislation (made by office-holders or bodies to whom parliament has delegated law-making power). legislation legislative includes rules, regulations, ordinances, by-laws and. Case law, because it purports to be based on an existing corpus of rules, operates with retrospective and prospective effect. Commonwealth constitution section 109 legislation made by the commonwealth. Parliament prevails over inconsistent legislation on the same topic made by state parliaments. Parliament may change rules developed in case law. Cou(cid:396)ts still ha(cid:448)e the task of i(cid:374)te(cid:396)p(cid:396)eti(cid:374)g legislatio(cid:374), although oste(cid:374)si(cid:271)ly to fi(cid:374)d (cid:858)pa(cid:396)lia(cid:373)e(cid:374)t(cid:859)s i(cid:374)te(cid:374)tio(cid:374)(cid:859). It falls to the courts to ensure that legislation is made only on topics within constitutional power.
