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Statute Law
This page contains information about the drafting of
bills and their passage through federal Parliament,
delegated legislation and the process of Parliamentary
scrutiny; and statutory interpretation. The text of acts
and regulations may be found on the Library's Australian
Law page
Delegated Legislation is a term which covers the vast amount of legislation
made by government agencies and the Governor-General under authority of
Acts of Parliaments, which delegate this power to agencies. This type
of legislation is also known as Subordinate Legislation or, since 2005,
Legislative Instruments. Within the broad area of Delegated Legislation
the following more specific terms are sometimes used:
- Regulation : the most common form of delegated legislation. Used for
legislation of general application emanating from a government department.
Published in the Statutory Rules series
until 2004 and in the Select Legislative Instrument series from
2005
- Rule: Legislation specifying procedural formalities, eg court procedures
such as the High Court Rules. Published in the Statutory Rules
series until 2004
- Ordinance: Primary legislation of non self governing territories,
made by a federal government department to apply to a particular territory.
Also used for the legislation of some State local government bodies.
- By-law: Made by a statutory corporation having effect only within
the area of responsibility of the authority. Also used for the legislation
of some State local government bodies
There is also a range of other delegated legislation
which includes: Decisions, Declarations, Determinations,
Directions, Orders, etc.
Most delegated legislation is notified and sometimes
published in full in the Commonwealth
Government Gazette (Government Notices or Special Gazette). All
regulations and many other instruments must be tabled in Parliament and
may be subject to disallowance (see below for further information on Disallowable
Instruments). If not published in the Gazette, delegated legislation may
be published on ComLaw or on government
department websites. The Legislative Instruments Act 2003 (see
below for further information) provides for uniformity in the making,
notification, publishing and disallowance process for delegated legislation.
- Attorney-General's
Department. Office of Legislative Drafting
OLD provides legislative drafting services for federal departments and
agencies in the area of delegated legislation, maintains the Federal
Register of Legislative Instruments and, since 2002, publishes the Commonwealth
of Australia Gazette: Government Notices and Special Gazettes
- Productivity Commission. Office
of Regulation Review
The ORR vets and reviews regulations to ensure that they are properly
formulated and do not impose undue costs on business and the community.
Includes the publication A Guide to Regulation 2nd edition (29
January 1999), which provides information and guidelines on the use
of Regulation Impact Statements. Its publications back to 1991 are published
on this site, including its annual report Regulation and its review
- Grey-Letter
Law: Report of the Commonwealth Interdepartmental Committee on Quasi-regulation
(9 September 1999)
- Impact
of Mutual Recognition on Regulations in Australia (Office of Regulation
Review, 30 January 1997)
- Legislative
Instruments Act 2003
This Act, which commenced on 1st January 2005, aims to establish
a regime for the registration, tabling, scrutiny and sunsetting of legislative
instruments. Deals with: drafting standards; consultation before making
legislative instruments; establishment of the Federal Register of Legislative
Instruments; Parliamentary scrutiny of legislative instruments; sunsetting
of legislative instruments; instruments not dealt with before the Acts
commencing day; gazettal and registration requirements; effect on existing
tabling and disallowance requirements; delegation of certain Ministerial
powers; review of the operation of the Act and sunsetting provisions
- Rule
Making by Commonwealth Agencies
Summary of report number 35 published by the Administrative Review Council
in 1992
- Spoilt
for a ha’p’worth of tar: how bureaucratic law-making can undermine
the ideals of civil liberty (P. O'Keeffe)
Disallowable Instruments
Where a Commonwealth instrument is
a regulation, or is deemed to be disallowable by its enabling Act or by
the Legislative Instruments Act 2003, it is subject to the tabling and
disallowance provisions contained in Part V of the Legislative Instruments
Act, which provides for the tabling of an instrument within six sitting
days of an instrument being made (s. 38).
These include instruments made by the Monarch (or their representative
the Governor-General) within the area of the Royal Prerogative. They include
proclamations (eg relating to the declaration of war and peace) and the
issuing of letters patent (eg relating to honours and awards). They
are not made under authority of a statute. Areas covered by the Royal
Prerogative are listed in The Executive power of the Commonwealth
of Australia / by H.E. Renfree. Sydney : Legal Books, 1984. Chapter
4. Executive power and the crown prerogatives.
Prerogative instruments are published mainly in the Commonwealth
of Australia Gazette and occasionally on Scaleplus. Early
instruments relating to the British settlement of Australia may have
been published in the London Gazette and/or in the colonial
government gazettes. Some may not have been published at all. The more
important ones have now been published by the National Archives on its
website Documenting a
Democracy. For further information see
A
Rare form of law making: legislation made outside Parliament.
Comments to: roy.jordan@aph.gov.au
Last reviewed 4 February, 2008 by the Parliamentary Library Web Manager
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