is a generic term used to cover both parliamentary statutes or acts
and can be classified into delegated
A statute will frequently authorize delegated legislation or
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.
to the Australia
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
be progressively replaced by State or Commonwealth legislation, or
simply be repealed.
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
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.
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.
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):
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.
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.
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.
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.
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.
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.
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.
FEDERAL AND STATE AND TERRITORY STATUTES: The distinction between
Federal and State/Territory statutes is important but complex.
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.
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”
(1991) 54 CLR 521).
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.
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
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.