Legal Research Guide: About Legislation

The legislative process is the process by which laws are created in Parliament.
The process is similar for both Commonwealth and Western Australian legislation.

Bills are first introduced to the Legislative Assembly.

After passing the Assembly, they are introduced to the Legislative Council.

Bills may also be referred to Committee.

For more information:

Parliament of Australia Infosheets; see Infosheet 7 - Making Laws.

Parliament of Western Australia Factsheets; see About Parliament 18 - Passage of Legislation.

A Bill is a proposal for a law or change to an existing law. Think of it as a draft law.

A Bill becomes a law once each House of Parliament agrees to identical versions of the Bill and assent is given by the Governor-General.

Every Bill has three readings in each House of Parliament which are recorded in Hansard.

Each bill is accompanied by an explanatory statement - the Explanatory Memorandum (EM).
This statement explains the content of the Bill, and its aims and intended operation.
This document can be relevant in statutory interpretation of an Act or provision of an Act that the Bill relates to (see Acts Interpretation Act 1901 (Cth)).

More information about Bills can be found on the Parliament of Australia and Parliament of Western Australia websites.

The Bills and Laws Fact Sheet explains the parts of a Bill.

Understanding an Act

Bill + EM + 2RS + Reports = Act

Extrinsic materials provide guidance on the meaning behind, and the intended purposes of, an Act of Parliament.

Extrinsic materials are materials which do not form part of the Act itself, but may assist in the interpretation of the Act (see s 15AB of the Acts Interpretation Act 1901 (Cth)).

These materials can include:

• Explanatory Memoranda (EM)
• Second Reading Speeches (2RS) (can be sourced from Hansard)
• Parliamentary Committee Reports
• Parliamentary Papers / Government Publications*
• Law Reform Commission Reports

The Encyclopaedic Australian Legal Dictionary (available through Lexis+) provides relevant definitions that should help expand your understanding of extrinsic materials.

* Parliamentary Papers / Government Publications 

Any document tabled or presented in Parliament, ordered to be printed and made available to the public as a printed paper.
They include reports of committees and commissions, annual reports of government departments, and other documents tabled for legal requirements.
Parliamentary papers are often referred to as Government Publications.
Government Publications Subject Guide has more information.

Understanding an Act

Bill + EM + 2RS + Reports = Act

An Explanatory Memorandum is a companion volume to a Bill - they are read in tandem.

Explanatory Memoranda or Explanatory Notes explain the contents of a Bill in non-legal terms - the purpose of an Explanatory Memorandum is to explain, clause by clause, the content and purpose of the Bill when it is debated in Parliament.
EMs provide an invaluable aid to understanding the proposed legislation.

Once a Bill becomes law, an Explanatory Memorandum can explain the law as it was enacted.
The Acts Interpretation Act 1901 (Cth) permits the use of Explanatory Memoranda for statutory interpretation.

Explanatory Memorandum

An executive document issued by a minister explaining the aims and operation of a statute. In statutory interpretation, if the meaning of a provision in an Act is ambiguous or obscure, or the ordinary meaning conveyed by the text of the provision, taking into account its context in the Act, leads to a result that is manifestly absurd or unreasonable, reference may be made to explanatory memoranda in order to ascertain the meaning of the provision: Acts Interpretation Act 1901 (Cth) s 15AB.

Source: Encyclopaedic Australian Legal Dictionary 

Understanding an Act

Bill + EM + 2RS + Reports = Act

The First Reading Speech is where the Minister introduces the Bill to Parliament. The Bill is then distributed to Parliamentarians and made available to the public

The Second Reading Speech is where the Minister explains a Bill's general principles, purpose and effect to Parliament.

After the Minister’s speech, usually at a future sitting (to give Members time to study the bill and its effects before speaking and voting on it, and to provide the opportunity for public discussion and reaction) is the Second Reading Debate.

The Second Reading Debate is where the text of the Bill is considered in detail, clause by clause, and changes are proposed.
Second Reading Debates can be sourced from Hansard.

Hansard is the name given to transcripts of parliamentary proceedings and is the official record of parliamentary debates.
Hansard includes the transcript of the Second Reading Speech for Bills.
What is Hansard explains WA Hansard

The Second Reading Speech (along with the Explanatory Memorandum) plays an important role in the legislative process and may be taken into account by the courts in deciding the meaning or intention of an Act.

Bills are usually introduced into the lower house of Parliament, so this is where the most useful Second Reading Speeches are recorded.
Check both Upper House for Second Reading Speeches.

The Making Laws Infosheet explains this process.

Second Reading Speech

A speech given by the relevant minister in parliament outlining the policy underlying a proposed law (a Bill) during the second reading.
Second reading speeches may be used as an aid to statutory interpretation, in order to discern the underlying purpose or object of a statute: for example, Acts Interpretation Act 1901 (Cth) s 15AB(2)(f); Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305 ; 255 ALR 1 ; [2009] HCA 19 ; Re Warumungu Land Claim; Ex parte A-G (NT) (1987) 77 ALR 27.
The second reading stage is followed by the committee stage.

Source: Encyclopaedic Australian Legal Dictionary   

Understanding an Act

Bill + EM + 2RS + Reports = Act

Hansard is the name given to transcripts of parliamentary proceedings and is the official record of parliamentary debates.
Hansard includes the transcript of the Second Reading Speech for Bills.
What is Hansard explains WA Hansard

Hansard is considered extrinsic material.

Hansard is therefore classified as secondary material (rather than primary material).

The Second Reading Speech (along with the Explanatory Memorandum) plays an important role in the legislative process and may be taken into account by the courts in deciding the meaning or intention of an Act.

Bills are usually introduced into the lower house of Parliament, so this is where the most useful Second Reading Speeches are recorded.
Check both Upper House for Second Reading Speeches.

The Making Laws Infosheet explains this process.

In both the Commonwealth and the Western Australian Parliaments, Bills are considered by various committees during their passage through Parliament.
In each House of Parliament a Committee of the whole House considers the Bill and this is when amendments can be made.
This committee process occurs after the second reading.

There are times when Bills are referred to special committees (such as Select Committees, Standing Committees or Legislation Committees).
These Committees publish reports containing their recommendations which can give researchers an insight into the background of a Bill, areas of debate, disagreement or contention as well as any policy issues that may arise.
Committee recommendations are not always accepted by Government, but the Ministerial response to these recommendations is usually made available with the reports.

The Parliamentary Committee Fact Sheet and Committees Infosheet provide more details.

Parliamentary Committee

A committee comprised of members of the upper or lower parliamentary houses, or a joint committee of both houses, established by Parliament to inquire into specified matters.
For example, such committees scrutinise government activities (including legislation, the conduct of public administration, and policy issues), oversee expenditure of public money, or require the public service to justify their actions and administrative decisions.

Source: Encyclopaedic Australian Legal Dictionary   

Understanding an Act

Bill + EM + 2RS + Reports = Act

Legislation, Statutes, Acts, and Acts of Parliament are interchangeable words (see R v Bakewell (1847) 7 E & B 848 at 851).
They are used to describe the laws made or enacted by the legislature (Parliament).

Legislation and case law combine to create the primary sources of the law.

When an Act is passed through Parliament it is given a number for that year.
Acts can be referred to as a numbered act, or sessional act.
Example:   Australian Education Act 2013 (Cth) (No 67 of 2013)

There are two kinds of Acts:

• Principal Act (Original Act) - new legislation;
• Amending Act - Acts which change (update or amend) the contents of, or repeal, an existing Act of Parliament.
  Amending Acts usually have the same name as the principal Act, with the word Amendment included.
  Example: Australian Education Amendment Act 2017 (Cth) (No 78 of 2017)

Act Formats

Australian Acts are available in three forms:

Numbered or Sessional Acts: are available in print and online;

Reprinted Acts: Western Australian reprints are available in print and online. Commonwealth reprints are available in print only;

Compliations of Acts: are available online only.

Sessional Details

When a Bill receives Royal Assent it is given a sequential number and becomes a numbered Act. This number tells you the number of the Act for the year in which it was enacted.

The number is in the format of: 

This number represents the sessional details of the Act.

For example:

The Antarctic Treaty Act 1960 (Cth) has the sessional details of 48 of 1960. It was the 48th Act passed by the Parliament of Australia in 1960.

As the sessional details of an Act are unique, you can use these to locate the Act and information about it without knowing the Act's title.

Versions of an Act

Commonwealth

Federal Register of Legislation states:

Authorised content

All current laws on the Legislation Register have an authorised version that can be relied on for the purpose of court proceedings under section 15ZA and 15ZB of the Act.
Authorised content is always in Adobe Acrobat (PDF) format, and is stamped with one of the following forms of words:

• “Authorised version”; or

• “Authoritative”; or

• “Federal Register of Legislative Instruments”; or

• for an explanatory statement for a legislative instrument—“Explanatory Statement to” and a reference to the unique identifier for the instrument.

If you download or print an authorised version from this website without making any changes to it, the copy is also an authorised version for the purpose of court proceedings.

Western Australia

In Western Australia, an electronic consolidation of an Act (or version) is not currently considered authoritative.
If required for court purposes, the most recent reprints, along with subsequent amendments, should be used.

A version  of an Act is the electronic compilation of the Act which is added to the Western Australian Legislation web site when an amendment has been made.  
It is not reproduced by the State Law Publisher as a printed document.
This is why you will find far more versions than reprints.
Every time an amendment is made to an act, a new version of the act appears on the Western Australian Legislation web site, whereas a reprint appears periodically incorporating a number of amendments.

Operational Status

An Act does not become in force until it is proclaimed to be operational.
The day the Act is proclaimed is its commencement date.

Once a Bill has been passed by both Houses of Parliament, it must be presented to the representative of the Crown to receive royal assent:

• Commonwealth this is the Governor General
• Western Australia this is the Governor

 Once it has been signed the bill is deemed "assented to" and it is then an Act or Statute. 

The Act, however, does not become part of the law of the land until it comes into effect or is proclaimed to commence.

Acts come into force on Royal Assent, Proclamation, or on a specific date.

Commencement information is specified:

• Commonwealth - in section 2 of the Act
• Western Australia - Compilation Table in the Notes section of the Act

Some Acts have individual provisions coming into operation on different dates than the rest of the Act.

Unless the contrary is stated in the Act:

• Commonwealth Acts will take effect 28 days after the date of their royal assent (Acts Interpretation Act 1901 s 5 (1))
• Western Australian Acts also will take effect 28 days after their date of assent (Interpretation Act 1984 s 20)

If an Act is to commence on a date other than 28 days after royal assent, it will be stated in the section of the Act with the marginal note Commencement (usually s 2).
In some cases, this may be on a date to be proclaimed,  in which case the date will be published in the appropriate Government Gazette.

The date of assent is printed on the Act and a notice of the date is published in the appropriate Government Gazette:

• Commonwealth of Australia Gazettes
• Western Australian Government Gazette

Point in Time

Point in time, backdating, or historical research searches for how legislation stood on a given day.

You may need to find what tax rate applies on a particular date, what penalty is imposed on a particular day, or how the law read prior to the introduction of new or amending laws.

The Federal Register of Legislation, Western Australian Legislation and LawNow all provide access to historic (superseded) compilations and versions of Acts.
You can use these databases to locate the relevant compilation or version that applies.

Understanding an Act

Bill + EM + 2RS + Reports = Act

Example

The Notes section of the Disability Services Act 1993 (WA) shows the Compilation table.
The first line of the table contains the following elements:

Royal Assent was granted on 16 December 1993.
After an Act has passed through the legislative process in Parliament it is signed by the Governor of Western Australia.
At this point the Act is said  to have received 'Assent' or 'Royal Assent'.
An Act does not necessarily come into force on assent.

Commencement date:
The date the Disability Services Act 1993 (WA) came into force is 23 December 1993.
It is common for different sections of an Act will come into force at different times.

• By convention, section 2 of an Act often gives the commencement details, as is the case with the Disability Services Act 1993 (WA), saying that provisions of the Act will come into force on a specific date, or ‘on proclamation’.
  A proclamation is a public announcement published in the Government Gazette and made by the Governor.
• If section 2 (or any other section) does not give any information about when the Act is to come into force, then check the rules given in the Interpretation Act 1984 s 20(2) (WA).
  The rule for current legislation is 28 days after Royal Assent.

Delegated Legislation 

Delegated legislation is legislation made by an organisation or body other than Parliament that has been delegated a specific, precise, constrained, and restricted power to make certain laws.
Delegated legislation may be administered by Government Departments, Local Councils, Courts or some other body to which the authority has been delegated.

Delegated legislation is often called subordinate legislation or legislative instruments.
It includes regulations, rules, orders, statutory instruments, by-laws.

Delegated legislation exists in relation to an enabling Act.
The enabling Act is called the principal Act.
The principal Act makes provisions for delegated legislation to be made and will specify who has been delegated the power to do so under the Act.
An enabling Act may enable multiple pieces of delegated legislation (operating under it).
These will contain the administrative details that are necessary to ensure that the provisions of the enabling Act will operate successfully.

Concepts Related to Delegated Legislation

Individually, delegated legislation has a variety of names, including `regulations‘, `by-laws‘, `rules‘, `ordinances‘, and `orders-in-council‘.

Collectively, they are variously termed `subordinate legislation‘, `statutory rules‘, `legislative instruments‘, `statutory instruments‘, and `subsidiary legislation‘.

The general rules of statutory interpretation apply to delegated legislation: Whittaker v Comcare (1998) 86 FCR 532 ; 28 AAR 55.

Delegated legislation may also be of value in interpreting the parent legislation: Ward v Cmr of Police (1997) 151 ALR 604 ; 80 IR 1.

Delegated legislation has the force of the relevant empowering statute, but it must be within the legislative power of the delegator, and the delegation itself must not be so wide as to be uncertain or amount to an abdication of legislative power: Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan  (1931) 46 CLR 73 at 101, 120 ; [1931] HCA 34 .

Types of Delegated Legislation

Within the broad area of delegated legislation the following more specific terms can be used:

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 local government bodies and local government authorities (such as shires and councils). When a by-law is made for a particular local government authority it only has application within that local government area. For example, the Fiona Stanley Hospital By-laws 2014 (WA).

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 local government bodies in some states. This includes all laws made by a territory legislature, such as the Australian Capital Territory and the Northern Territory. For example, the University of Canberra Act 1989 (ACT).

Regulation

The most common form of delegated legislation, these are made by the executive or a Minister to apply to the general population. They are 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. For example, the Occupational Safety and Health Regulations 1996 (WA).

Rule

Legislation specifying procedural formalities such as court procedures e.g. the High Court Rules 2004 (Cth). Published in the Statutory Rules series until 2004.

Other types of delegated legislation include: Decisions, Declarations, Determinations, Directions, Orders, etc

Law reform is the process of reviewing, developing and changing the law to bring it into line with current conditions (i.e. removing outdated laws or introducing new laws to support the regulation of something new).

There are a number of Law Reform Commissions throughout all jurisdictions.

Law Reform Commissions publish a variety of papers including discussion papers and reports.

These can provide excellent references to the most important academic writings on a particular subject. These publications often include a thorough analysis of the current law and an extensive examination of reform proposals.

Law Reform Commission

A body established to review laws with a view to the systematic development and reform of the law: (CTH) Australian Law Reform Commission Act 1996 s 21.
The Law Reform Commission consists of a president and four or more other members, each of whom must be a judge of the Federal Court or the Supreme Court of a State or Territory; a person who has been enrolled as a legal practitioner of the High Court, or the Supreme Court of a State or Territory for not less than five years; a person who is a graduate in law of a university and has had experience as a member of the academic staff of a tertiary educational institution; or a person who is, in the opinion of the Governor-General, by reason of the person‘s specific qualifications, training or experience, suitable for appointment: s 7.
All members are appointed by the Governor-General : s 7.

The Australian Law Reform Commission systematically reviews Commonwealth laws to:

• bring the law into line with current conditions and needs
• remove defects in the law
• simplify the law
• adopt new or more effective methods for administering the law and dispensing justice
• provide improved access to justice

Source: Encyclopaedic Australian Legal Dictionary   

Legislation Research