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Sources of law

The laws in force in the ACT derive from 2 main sources: laws made by the Legislative Assembly (legislation and instruments made under legislation) and the decisions of the courts (the common law). A third source is the Ordinances made from time to time by the Governor-General under the Seat of Government (Administration) Act 1910 (Cwlth). Finally, the ACT inherited a body of legislation (mainly NSW and the Commonwealth). (The Commonwealth Constitution and various Commonwealth Acts, regulations and instruments also apply in the ACT, but this site is concerned only with laws made under authority given by the Legislative Assembly under the Australian Capital Territory (Self-Government) Act 1988 (Cwlth) (the Self-Government Act)).

Laws made by the Legislative Assembly—‘Acts’

On 11 May 1989, the ACT became a self-governing Territory under the Self-Government Act which is an Act of the Commonwealth Parliament. At the same time, the Legislative Assembly came into existence. The Self-Government Act, section 23 gives the Legislative Assembly power to make laws ‘for the peace, order and good government of the Territory’. Although some subjects are excluded from the legislative powers of the Legislative Assembly (including such things as companies and the classification of materials for censorship), the phrase ‘peace, order and good government’ indicates that the Assembly has a general law-making power similar to the powers of the State Parliaments. Like the Commonwealth Parliament, the Legislative Assembly may not make laws which would involve the acquisition of property without proper compensation.

In common with other parliaments in Australia, the laws made by the Legislative Assembly are known as Acts. An Act is the primary form of law in the ACT. Subject to the limitations laid down in the Self-Government Act, Acts may create rights and obligations (including taxes) and create offences for noncompliance with a provision of an Act. An Act may restrict property rights in various ways (for example, requiring a person to obtain a permit before building on land) or regulate various occupations and businesses (for example, requiring a person to have a particular kind of qualification or lodge various kinds or returns). While the Self-Government Act, gives broad law-making powers, the precise topics dealt with in an Act, and the way in which the Act is to operate may all be the subject of intense debate and lobbying in the Legislative Assembly and the community as a whole.

Instruments made under Acts

Apart from their direct operation as sources of rights and obligations, Acts also authorise the making of other laws (mainly regulations) and instruments of various kinds (for example, providing for appointment of people to positions or determining fees and charges). Because the Legislative Assembly does not necessarily have time to attend to these matters, under our constitutional system the government of the day, acting through its departments and other agencies deals with them. For this reason, laws made the Legislative Assembly generally give powers to make regulations and other instruments. In this way the law on a subject may be divided between the Act (laying down the main features of the proposal), regulations (dealing with more detailed rules which may need to change quickly) and other instruments to operate in particular situations. Because the power to make regulations is given or delegated by the Legislative Assembly, they are sometimes referred to a delegated legislation or ‘subordinate laws’. Although regulations are the most common type of subordinate laws, other kinds are rules of court and by-laws.

Laws made by the Governor-General—‘Ordinances’

Before the Self-Government Act created a democratically elected Legislative Assembly, laws were sometimes made for the ACT by the Commonwealth Parliament but more often were made by the Governor-General exercising powers delegated to the Governor-General under the Seat of Government (Administration) Act 1910 (Cwlth), s 12. The laws made by the Governor-General were known as ordinances and corresponded in subject matter and effect to the Acts now made by the Legislative Assembly. At the time of self-government, the Seat of Government (Administration) Act 1910 (Cwlth) was amended to narrow the scope of s 12. After self-government ordinances may only be made on a fairly narrow range of topics including:

  • the classification of materials for censorship
  • land used or intended to be used for Commonwealth purposes (National land)
  • companies

Since self-government very few ordinances have been made and they continue to be administered by the Commonwealth. Ordinances are no longer a major source of law in the ACT. During a staged period after self-government, most ordinances that had applied in the ACT before self-government were converted into Acts.

The common law

In the ACT legal system the common law continues to be a major source of law. The common law derives from the decisions of judges (originally in England) over the last 800 years. At the time of the emergence of the common law as a source of law, Acts of Parliament were uncommon. Under the system of writs developed by the Crown and its officials, disputes could be brought before the judges for resolution. Out of these decisions a vast system of law evolved. A rule or principle of precedent also developed. This required that if a ruling was made on the basis of certain facts, and those facts happened again, the same ruling should apply. Precedent then operated to shape the common law into a coherent, more or less predictable, body of rules on the basis of which commercial transactions could be safely entered into. In time, however, the common law was regarded as too rigid and sometimes operating in a way that was not always fair. A parallel body of law eventually grew up which became basis for the rules now known as the rules or principles of equity. These supplemented and corrected the operation of the common law. The common law operates subject to legislation. In other words, if a decision of a court establishes a new rule of common law or varies an old rule in a way that is seen to be undesirable, an Act may change or abolish the common law rule.

Despite the enormous volume of legislation over the last 200 or so years, some significant areas of law are still largely based on the common law. For example, contract law and the law of torts (civil wrongs). And even now, the operation of an Act or regulation will ultimately depend on how a court interprets the legislation. A person researching the law therefore needs to be aware not only of the terms of the relevant Act and regulations, but also of any decisions of the courts that have considered the legislation in question.

The inherited law

The area that now forms the ACT once formed part of New South Wales. The laws of that State therefore applied in the area before it was surrendered to the Commonwealth. The Seat of Government Acts passed by the Commonwealth Parliament in 1909 and 1910 provide, broadly speaking, that the laws in force in that area should continue in operation. The ACT therefore inherited from NSW a body of legislation and common law (much of which NSW had, in turn, inherited from England). In 1999 an Act of the Legislative Assembly provided that certain Acts of the United Kingdom and NSW Parliaments applying in the ACT were to be treated as if they had been enacted by the Assembly. For convenience, these are now listed in the Legislation Act 2001, schedule 1.

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