Legislation is a generic term used to cover both parliamentary statutes or acts and can be classified into delegated or subordinate legislation. A statute will frequently authorize delegated legislation or executive instruments.

1. DELEGATED LEGISLATION: There are four types of statutes which apply in Australia: Commonwealth, State, Territory, and UK statutes. The first three categories are straight forward and the most important. South Australia expressly received the British common law on its foundation in 1836.

Prior to the Australia Acts 1986, if a State/Territory act came into conflict with an act of the United Kingdom parliament, still in force in Australia, then technically the State act gave way and was inoperative. However, since the Statute of Westminster 1931, an act of the Commonwealth parliament coming into conflict with an act of the UK parliament, no longer gives way. It is likely that the very few UK acts still in force in Australia will, in the wake of the Australia Acts, be progressively replaced by State or Commonwealth legislation, or simply be repealed.

Since Australia is a federal system, disputes will arise from time to time about whether or not particular acts are actually within the legal jurisdiction of the parliament which enacted them. Such jurisdictional disputes between the States and the Commonwealth are, in the last resort, resolved by the High Court. The process is called 'judicial review'.

2. SUBORDINATE LEGISLATION: Subordinate legislation is made under the authority of acts of parliament which delegate powers to a person or body of people to make laws in the form of regulations. Today, the volume of written laws made under such delegated legislative authority greatly exceeds those laws in acts of parliament. Parliaments being somewhat unwieldy bodies, tend to limit their own activities to that of determining broad matters of policy. Therefore, there is an ever burgeoning mass of legal rules embedded in regulations, by laws, orders in council and so forth.

The quality of subordinate legislation produces one of the gravest problems facing lawyers and citizens alike. The practical task of keeping up with new regulations is a difficult one. Further, legal issues arise when questions are raised whether or not regulations have been validly made within the ambit of the powers to legislate. Such questions often come before the courts for determination.


In Australian States/Territories, there are 4 types of statute that may be applicable (plus of course rules, regulations and by laws which may be made under any of these):

1. STATUTES: State and territory statutes are made by State and Territory Parliament, while Federal statutes are made by the Commonwealth Parliament. As well there are two types of statute made by the United Kingdom Parliament may be relevant. These are known as Imperial Statute and English Municipal Acts.

When the British settled NSW in 1788 they brought their law and much of that law remains law today. The law applicable to a new colony are the common law of England, and such statutes that are appropriate to the circumstances and condition of the colony.

2. UNITED KINGDOM’S MUNICIPAL ACTS: It is generally assumed that all statutes in force in England in 1788 became part of NSW’s law on settlement, except for those statutes that clearly do not apply to Australia. For example, The Wolf Control Act of 1716 because the new colony had no wolves. This includes English statutes made between 1066 and 1703 and United Kingdom statutes made between 1103 and 1788. Some very old English statutes still apply for example, the Statute of Frauds which applies to contracts over land.

3. IMPERIAL ACTS: Imperial Acts are also statutes passed by the UK Parliament but in its capacity as the Parliament of the Empire rather than Parliament of Britain.

COLONIAL LAWS VALIDITY ACT 1865: One of these, the Colonial Laws Validity Act of 1865, is closely connected with the Real Property Act. When the Real Property Act was first passed, it was bitterly opposed by the local profession, who persuaded the colonial judge, Mr Justice Boothby, to declare it invalid being inconsistent with English Law. He was promptly dismissed by the Governor on the address of the Legislative Council, and a new judge appointed. Boothby refused to go, and for several months, the two judges worked not quite side by side, since each held that the other had no authority. Eventually, the decision of the Colonial Office in London arrived   Boothby was no longer judge and Boothby left for England to appeal.

The Colonial Laws Validity Act was passed in 1865 to settle any doubts which may have existed that colonial parliaments throughout the Empire could indeed make laws, as everyone but Boothby knew anyway. Several Imperial Acts still apply. The most important is the Commonwealth of Australia Constitution Act, under which Australia’s two Parliaments derive their authority. Some Imperial legislation including insurance, shipping and a few other topics remain in force.

STATUTE OF WESTMINSTER: In 1932, the Imperial Parliament passed a statute known as the Statute of Westminster, in which it declared that no Imperial Acts would apply to the Dominions without the consent of these dominions. In theory, the British Parliament could perhaps repeal that statute at any time, and make new laws for Australia, but in practice it is unlikely. The status of pre 1932 Imperial legislation is debatable and unclear, but fortunately of little relevance to those concerned with commercial law.

4. FEDERAL AND STATE AND TERRITORY STATUTES: The distinction between Federal and State/Territory statutes is important but complex.

Typically under their Constitution a State Parliament has power to make laws for the "peace order and good government of the province" (South Australia). This has been held to mean any law that the State or Territory Parliament thinks fit to pass. The Commonwealth Parliament however has only those powers listed in the Federal Constitution under s51, and cannot make any laws except by reference to those powers. The High Court has authority to declare void any statute or law passed by the Federal Parliament, if that statute or law is not a valid exercise of the powers granted to under s51.


In 1955 for example, Prime Minister Menzies passed the Communist Party Dissolution Act, that would have enabled the government to declare any opponent a communist, and thereby disqualify him from holding any office and liable to summary imprisonment. It was held by the High Court, that this was not a valid exercise of the Commonwealth's defence power and therefore was void. A similar problem arose more recently with the Commonwealth’s attempt to try “war criminals” (Polyukhovich v Comm (1991) 54 CLR 521).

However, if a Commonwealth Act is valid, it overrides any State Act which is inconsistent with it. Precisely what is meant by "inconsistent" is a question of enormous financial significance to the legal profession. The rule applies equally to Commonwealth Acts of Parliament and to Commonwealth delegated legislation. For example, regulations made under the Commonwealth Air Navigation Act would override inconsistent State legislation.

There are therefore a few problems with statute law in a federated collection of former colonies. Generally, these will not bother those involved in commercial law, but any person who works with laws should be aware that there are circumstances in which the apparent law is not the law. The decision of whether or not a law is valid is usually one for a legal expert.