Sources of law
Laws of the ACT are drawn from two main sources: laws made by the Legislative Assembly (legislation and legislative instruments made under legislation); and the common law based on decisions handed down by the courts.
Section 23 of the Self-Government Act (Cwlth) gives the Legislative Assembly the power to make laws for ‘the peace, order and good government of the Territory’. Bills that are passed by the Assembly become acts, which are the primary form of law in the ACT.
Some acts allow the government, through its directorates and agencies, to make other kinds of law known as legislative instruments. Legislative instruments are sometimes referred to as delegated legislation or ‘subordinate law’.
Before self-government, ordinances made by the Governor-General under the Seat of Government (Administration) Act 1910 (Cwlth) were the main form of legislation made for the ACT. Most of the ordinances in force at self-government have been converted into acts.
Common law is based on the decisions of judges, originally from England, stretching back over 800 years. Rulings by judges have allowed a vast number of legal precedents to be established so that if a court ruled that the law would be applied to certain facts and those facts occurred again, the same ruling should apply. This provides a greater degree of certainty and consistency for how the law applies.
Bills passed by the Legislative Assembly, may change or abolish some aspects of common law.
More information on the sources of ACT law can be found on the ACT Legislation Register website.
A bill is a proposed law and is, more often than not, presented to the Assembly by ministers. Bills presented by non-executive members are known as private members’ bills.
In order for a bill to become an act, a majority of members in the Assembly must vote for it to pass.
Bills of the ACT are not given royal assent (as Commonwealth legislation is by the Governor-General or state legislation is by a state governor). The Clerk of the Assembly certifies a copy of the bill as passed, and the Speaker asks the Parliamentary Counsel to notify the act on the ACT Legislation Register.
Once an act is notified it becomes law.
The ACT Legislation Register is available online.
Subordinate legislation is a law that is not made by a direct vote of the Assembly, but by other entities—often ministers or public servants—to which the Assembly has delegated its law-making power. Disallowable instruments, notifiable instruments, and regulations are types of subordinate or delegated legislation.
The Assembly’s Standing Committee on Justice and Community Safety performs a legislative scrutiny role (in addition to examining matters relating to law and order). All bills and subordinate legislation must be examined by the committee to ensure that they do not trespass on personal rights and liberties, and that they comply with the Human Rights Act 2004.
Disallowance of ACT laws
Until 2011, the Governor-General had the power to disallow or recommend amendments to acts that had been passed by the Legislative Assembly.
This has happened only once in the history of self-government. On 13 June 2006, acting on the advice of the then Attorney-General, the then Governor-General disallowed the Civil Unions Act 2006, which had previously been enacted by the Legislative Assembly as a law of the ACT.
In 2011, the Commonwealth Parliament passed the Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Act 2011, which had the effect of removing the Governor-General’s power to overturn or amend ACT laws.
On 22 October 2013, the Legislative Assembly passed the Marriage Equality (Same Sex) Bill 2013. The resulting legislation allowed same-sex marriage ceremonies to take place in the ACT from 7 December 2013. The federal government lodged a claim in the High Court of Australia to challenge the legal and constitutional validity of the act. On 12 December, the High Court decided against the ACT, ruling that only the federal parliament has the power to legislate for same-sex marriage. This act has not been expressly repealed by the Legislative Assembly. It is implied to be repealed because the High Court determined it to have no effect.
ACT legislative process: from a Bill to and Act
- A new law is required to deal with an issue
- Ideas for laws come from a variety of sources that can include party policy, election promises, public opinion, public service and inter-governmental agreements
- When an idea for a bill has been agreed to the bill is drafted by the Parliamentary Counsel's Office
Stage 1: Presentation
- Bill is programmed for presentation in the Assembly
- Bill is presented by the Minister or Member, along with supporting papers, who moves "That this bill be agreed to in principle"
- Debate on the bill is adjourned until a later sitting day
- The bill is examined by the Standing Committee on Justice and Community Safety (Legislative Scrutiny Role) which examines each bill to make sure it is compatible with the Human Rights Act 2004
Stage 2: Agreement in Principle
- Debate on the Bill resumes
- Assembly Members debate the general principles of the bill, all Members can contribute to the debate
- The Minister or Member who presented the bill closes the debate
- The question "That this bill be agreed to in principle" is put to a vote of the Members of the Assembly
- To pass this stage the bill needs to have the support of the majority of Members, in the Ninth Assembly this is 13 votes out of 25
- If the bill is agreed to it proceeds to the next stage
- If the bill does not get a majority of 13 votes it does not progress any further and will not become a law
Stage 3: Detail stage
- The detail stage can be skipped if there are no changes required to the bill and there is agreement by Members of the Assembly
- When a Bill is considered in detail this includes each clause, schedule and the title
- Amendments are moved and debated during the detail stage
Stage 4: Agreement
- This is the final question "That the bill be agreed to" or if the bill has been changed during the detail stage, "That the bill, as amended, be agreed to"
- There is no debate during this stage, the bill must pass with a majority support of the Assembly
After a bill is passed by the Assembly
- The Act is prepared and certified by the Clerk as a true copy as passed by the Legislative Assembly
- The Speaker sends it to the Parliamentary Counsel's Office requesting that it be notified on the ACT Legislation Register
- Once the Act appears on the ACT Legislation Register it becomes a law
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