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This Lesson is designed to introduce you to legislative materials and legislative research in the jurisdictions of Western Australia and the Commonwealth of Australia.
Just reading a section in an Act does not provide a full understanding of the law.
To fully understand a statute, you need:
- an explanation of the law (sourced from Explanatory Memoranda accompanying a Bill)
- to learn the purpose and intention of the law (sourced from the Second Reading Speech to Parliament and Bills Digest)
- to identify any points of contention with the law (sourced from the Second Reading Speech to Parliament, Parliamentary discussion and debate, and Parliamentary Committee reports)
- to know what legal experts say about the law (sourced from legal commentary and journal articles)
- to know how the law is interpreted and applied (sourced from case law)
Bill + Explanatory Memorandum + Second Reading Speech + reports = understanding of an Act.
Bill + EM + 2RS + Reports = Act
You will need to research current law, as well as law as it read at a specific point in time.
Law is regularly updated to accommodate community and technology changes.
You will need to know the wording of an Act at the time your client's incident occurred, and so be able to research the history of an Act.
You will need to be able to source not only an Act, but also any delegated or subsidiary legislation, such as regulations, that are relevant to your client's case.
This topic aims to give you an overview of legislation and the legislative process, so that you can comprehensively research the law.
What is legislation?
Legislation consists of Acts (also called Statutes) and subordinate (or delegated) legislation.
In Australia, the power to make legislation is divided between the Commonwealth and the States.
The approach taken to find and update legislation differs slightly between each state and the Commonwealth.
An Act starts its life as a proposal which comes from a variety sources, including, but not limited to, Cabinet, a Government Department, the Law Reform Commission, or from a Royal Commission.
The proposal becomes a Bill, which goes through its parliamentary stages, to eventually become an Act.
An Act can subsequently be changed by other amending Acts and have subordinate legislation made under its provisions.
See the Legislative Materials and Processes below.
An Act can also be subject to judicial interpretation where a court must decide how a piece of legislation is to be applied in the circumstances of a particular case.
To be a competent legal researcher, you need to have an understanding of all these materials and processes.
The Act's home page on the Federal Register of Legislation lists:
- Act name
- Latest version start date
- Details button - link to start date, series/sessional details
- Authorises button - link to list of legislative instruments (delegated legislation) and Gazette notices
- Downloads button - link to Word and PDF versions of Act
- All Versions button - link to historical versions, principal + amendments, originating Bill and Explanatory Memorandum
- Interactions button - link to list of all legislation the Act is affected by, and affects
- Table of Contents
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Structure
The common structure of a principal act or regulations usually contains the following attributes:
FIRST PAGE
- Title
- Year of Making
- Number and Year
SECOND OR THIRD PAGE
-
Table of Provisions/Contents
THIRD OR FOURTH PAGE
-
Long Title - statement of what the Act does (generally Regulations do not have a long title; a summary may be in the accompanying explanatory statement or in the objective provision)
SUBSEQUENT SECTIONS (BODY OF LEGISLATION):
- Body of the Act/Regulation – may be divided into a standard hierarchy - Chapters, Orders, Parts, Divisions, Subdivisions or sometimes legislation may simply contain sections/regulations/rules
- Sections or Regulations - the lowest groupings or levels
- An Act will always contain sections
- A regulation will always contain Regulations or Rules
- Section 1 usually states the short title of the Act or Regulation/Rules
- Section 2 usually contains information about when the Act or Regulation/Rules commences
- Sections (regulations) may be further divided into sub-sections (sub-regulations) and paragraphs
AT THE END:
- Schedules – optional; appear when a provision refers to a piece of information too lengthy or complex to include in the text of a provision. May also be referred to as annexures
- Application, Transitional or Savings provisions - provide additional information on how amendments will apply
- Table of Acts, Table of Statutory Rules, Table of Amendments and Endnotes including Table A provisions (which contain transitional provisions)
Amendments are usually listed in the following types of tables at the end of the Acts or Regulations once they have been consolidated:
- Table of Acts - lists in three or four columns amending Acts that have affected the Principal Act
- Table of Statutory Rules - lists in three or four columns amending Regulations that have affected the Principal Regulation
- Table of Amendments - lists in two columns the provisions of a Principal Act or Regulation, and how each has been amended
Source: TimeBase
The Act's home page on the Western Australian Legislation lists:
- short title
- sessional details
- assent date
- Bill link
Structure
The common structure of a principal act or regulations usually contains the following attributes:
-
Title, including year of assent
-
Table of Contents
-
Long Title - statement of what the Act does (generally Regulations do not have a long title; a summary may be in the accompanying explanatory statement or in the objective provision)
-
Body of the Act/Regulation – may be divided into a standard hierarchy - Chapters, Orders, Parts, Divisions, Subdivisions or sometimes legislation may simply contain sections/regulations/rules
-
Sections - the lowest groupings or levels
-
Sections may be further divided into sub-sections (sub-regulations) and paragraphs
-
Schedules – optional; appear when a provision refers to a piece of information too lengthy or complex to include in the text of a provision. May also be referred to as annexures;
-
Application, Transitional or Savings provisions - provide additional information on how amendments will apply
-
Notes on Amended provisions
-
Table of Defined Terms
-
History of amendments to sections are located below amended provision
