Parliament and legislation

Power to make laws

The Commonwealth Parliament has power to make laws only in relation to those subject matters that are outlined in the Commonwealth Constitution. In contrast, state parliaments and territory legislative assemblies can generally make laws about all subject matters, including those over which the Commonwealth Parliament has power. If there is a conflict or inconsistency between a Commonwealth law and a state or territory law, the Commonwealth law will prevail (s 109). The Commonwealth may also pass a law specifically to over-rule a territory law where it relates to a subject matter for which the Commonwealth has power to make laws under the Constitution.

The Commonwealth Parliament does not have a specific power to protect and conserve the environment under the Commonwealth Constitution. However, the Commonwealth is able to use several of its broad constitutional powers to make important environmental laws. Commonwealth legislation about environmental issues has been mainly justified through the corporations power (s 51(xx)), the external affairs power (s 51(xxix)), taxation power (s 51(ii)), and trade and commerce power (s 51(i)).

In the Tasmanian Dams case (Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1), for example, the High Court held that the Commonwealth Parliament could use its ‘external affairs’ power to make laws implementing an international treaty, in that case the World Heritage Convention. Therefore, it upheld the validity of the Commonwealth’s World Heritage Properties Conservation Act 1988 (Cth) which prevented Tasmania’s Gordon and Franklin Rivers from being dammed.

State parliaments and territory legislative assemblies create most environmental laws in Australia. For a summary of the most important ACT laws concerning the environment, see the section on environmental and planning laws below.

In some cases local councils also have powers to make rules about matters that impact on the environment, such as development applications and waste management, and to enforce existing environmental laws. As there are no local councils in the ACT, the ACT government deals with these matters.

Legislation

When a proposed law is introduced into parliament, it is known as a Bill. Members of parliament then debate the Bill. Some Bills are also considered in detail by parliamentary or legislative assembly committees, which may provide the public with an opportunity to make submissions about the Bill in question. These committees make recommendations to parliament about whether the Bill should be passed and whether any amendments are required.

In the Commonwealth Parliament and all state parliaments, except Queensland, both the lower and upper houses of the parliament must pass a Bill before it becomes an Act. For a Bill to become a valid law in Queensland and the territories, which only have one house, Bills need only be passed by that one house.

An Act comes into force as a law on the commencement date that is set out in that Act. In the ACT, all Acts must be included on the ACT legislation register (see discussion on the ACT legislation register below).

Delegated legislation

Acts often include provisions that give power to the executive to make delegated, or subordinate, legislation. Although the executive creates delegated legislation, parliament often retains control over whether it can come into effect. Regulations generally have to be tabled in the relevant parliament or legislative assembly. If no member challenges the regulations within a certain number of sitting days, it then becomes law.

In the ACT, section 65 of the Legislation Act 2001 (ACT) provides 12 sitting days (6 sitting days to present the delegated legislation (s 64) and 6 sitting days to make the motion of disallowance) for the Legislative Assembly to disallow or amend the delegated legislation after it is tabled, after which time it will become enforceable. This Act contains many other important provisions about the making and notifying of rules and regulations. It requires all delegated legislation, for example, to be placed on the ACT legislation register.

ACT legislation register

The ACT legislation register was established under section 18 of the Legislation Act 2001 (ACT). Sections 18 and 19 of the Legislation Act 2001 requires that up-to-date, electronic, authorised versions of all Acts and subordinate legislation (such as Regulations) in force in the ACT are contained in the register, which provides ready access for users. The register is available on the ACT Government website.

A number of chapters in this Handbook refer to disallowable and notifiable instruments. Disallowable instruments are determinations or guidelines for decisions made by ministers or departments, which must be tabled in the Legislative Assembly to have force, and can be vetoed by parliament. Examples include the setting of fees or charges, or notification of place names or appointments to ACT councils. Notifiable instruments are legislative instruments that are not subject to parliamentary scrutiny, but are declared by an authorising law to be notifiable. Examples include approved forms for licences and permits.

Section 19 of the Legislation Act 2001 requires these instruments to be published on the legislation register. Other important instruments are also in the legislation register, including Bills, explanatory statements, and resolutions. The parliamentary counsel can also enter additional material that is likely to be helpful to users of the register and to increase public accessibility.

Acts and subordinate legislation (ie Regulations) that predate the register are being added to the register as part of a back capture program, so many can now be found on the register. However, if an Act or subordinate instrument is not on the register you can contact the ACT Parliamentary Counsel’s Office or download their detailed guide about notification of legislative instruments from the PCO's website (see Contacts list at the back of this book).

Interpreting legislation and delegated legislation

If the meaning of legislation or a section of legislation is unclear, the following tools can be used for the purposes of interpretation.

The Commonwealth and state parliaments and territory legislative assemblies have all passed Acts which set out the basic rules for interpreting legislation. The Legislation Act 2001 contains a dictionary which sets out the meaning of words and expressions that are commonly used in ACT laws. For example, section 133 of the Act states that a penalty unit means $150 for an individual and $750 for a corporation. This definition applies whenever the term ‘penalty unit’ is used in ACT legislation, except where otherwise stated in an Act.

Many Acts contain a definitions or interpretation section, often towards the beginning of the legislation, or in a ‘dictionary’ at the end of the Act. If a term is used within the Act, its meaning as set out in the definitions section may be substituted for that term. Sometimes a definition may be contained in a particular section or Part if it is relevant only to that section or Part. Acts may also contain a section defining the Act’s objects or purposes. This section can assist in interpreting the meaning of a particular part or section of the Act that seems unclear.

When a Bill is introduced into parliament it is accompanied by an explanatory memorandum. This document and second reading speeches of ministers in parliament about the Bill may clarify the meaning of the particular legislation.

Executive and administration of legislation

Once an Act has been passed and is an enforceable law, it is administered by a minister and their department. To find out which members of the ACT Legislative Assembly are ministers in the ACT and what portfolios they have, visit the Legislative Assembly’s website or consult the ACT government listing in the phone book. For information concerning Commonwealth ministers, visit the ‘Current Ministry List’ on the Parliament of Australia’s website (see Contacts list at the back of this book).