Advantages of an act having to pass two houses of parliament and not one.

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Judge-made law
Other support
Path of a bill
Origins of bills

In Australia, laws are made by:

politicians in parliament
judges making decisions about court cases.

Parliament-made law overrules judge-made law if both apply to a case.

Laws made by parliament are called Acts, statutes or legislation. To create new laws a Bill (a draft Act) is debated in parliament. If it is passed by a majority in both houses of parliament it is sent to the governor for formal approval. After approval it becomes an Act. Approval by the governor is called royal assent.

Victorian Acts apply to people living in Victoria and to courts and judges in Victoria. Commonwealth Acts apply to the whole of Australia and to federal courts and judges.

Some Acts may outline broad guidelines or principles but leave the detail to be defined in regulations, rules or local laws. This is known as ‘delegated legislation’ and may be made by government departments, local councils, public authorities or authorised public servants.

See the Parliament of Victoria website for detailed information about how parliament makes laws.

The Parliamentary Education Office has fact sheets about how Commonwealth Acts and Bills are made.

Judge-made law

Judge-made law – known as common law – is law that has developed from judgments handed down in court. It is most often used to make decisions about areas that are not included in Acts of parliament.

When using common law judges decide cases along the lines of earlier decisions made in similar cases (‘precedents’).

Judges are also required to interpret legislation if there is a dispute about the meaning or how to apply an Act in a case. These interpretations then become part of the common law.

Other support

Find out how you can get other support for courts and the legal system.

Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.

We help Victorians with their legal problems and represent those who need it most. Find legal answers, chat with us online, or call us. You can speak to us in English or ask for an interpreter. You can also find more legal information at www.legalaid.vic.gov.au

Reviewed 11 April 2022

The main role of parliaments in Australia is to pass legislation. Parliaments have structural weaknesses and practical difficulties, as well as strengths, in their roles as a supreme law-maker, a representative body, and a body with the ability to enact legislation. The following table explains how the clear strengths of a parliamentary system in Australia have corresponding weaknesses.


Strength	Weakness
Parliament is the supreme law making body, with law making being its primary role. Therefore, it is the best resourced and equipped body to make law.	Parliament does not have total power. It is restricted by its constitutional jurisdiction (e.g. cannot amend the Constitution without a referendum), however many people construe this as a positive as it prevents parliament from abusing its power.
Parliament can investigate a whole area of law (e.g. the Crimes Act 1958).	Statutes are worded broadly, which can lead to a need for interpretation and possibly leaves loopholes in the law.

Strength	Weakness
Parliament is a representative body. Elected members represent the majority of people. Therefore, laws are reflective of the majority’s values. For instance, legislation relating to the National Disability Insurance Scheme (NDIS) passed easily because it had bipartisan support resulting from overwhelming public support for the scheme1	Parliament may not always represent the majority of people. Governments and MPs can be unduly influenced by pressure groups, therefore, they may legislate or block proposed legislation to appease a minority. For instance, of the $433,327 that the mining industry gave to political parties from 2011-2012, approximately 98% of that money was given to the Liberal and National parties.2 Additionally, as a representative body, politicians may simply make popular decisions in order to get re-elected, rather than towing their party line or doing what is needed. For instance, many commentators interpreted Kevin Rudd’s departure from Labor’s traditional asylum seeker policy to a ‘Papua New Guinea solution’ to be an attempt to win votes in the most marginal seats of Western Sydney.3
Parliament can delegate its law-making powers to subordinate authorities, whom often have the time and expertise to create law, and are more accessible to the public.	Subordinate authorities are not as well-resourced as parliament, and are mostly comprised of unelected officials. Therefore, many laws are made by people who were appointed, rather than elected.
Issues before parliament are publically aired and allow for public debate on issues. The passage of a Bill is extensive, which aims to ensure that society’s views are debated and represented clearly. This structure allows for government to fulfill its roles as representative and responsible.	However, debate may not lead to any legislation being passed. Parliaments are often unwilling to legislate on controversial areas where opinions are divided and strong. For instance, state parliaments are generally unwilling to pass legislation legalizing voluntary euthanasia, despite widespread community support for such legislation.4

Strength	Weakness
Parliament can act quickly if needed. For example, in response to the Global Financial Crisis, then Prime Minister Kevin Rudd passed legislation for his Economic Stimulus Package a mere ten days after he announced the plan to the public.5	Parliament cannot always act quickly, as it only sits on a limited number of days in the year. In 2014, the House of Representatives only sat for 72 days6
Parliament can make laws in futuro (in anticipation of a future event)	Legislation can easily become outdated

Path of a bill

A bill can only become a law if it is passed by a majority vote in the Senate and the House of Representatives. The bill must be agreed to in identical form by both the Senate and House, and given Royal Assent by the Governor-General. It is then known as an Act of Parliament. An Act specifies the date on which the new law will commence. Often this is the day after it receives Royal Assent.

Most bills are introduced into the House of Representatives and then sent to the Senate. Bills may start in the Senate, except for money and taxation bills. Most bills are introduced by government ministers; however, other members of parliament can introduce their own bills, known as private members' or private senators' bills.

It may take months or even years for a bill to pass through Parliament. However, an urgent bill can be passed in a matter of hours or days. Well over 100 bills are introduced into Parliament each year and about 90 per cent of government bills are passed into law.

Origins of bills

Bills can start in different ways:

A government department may advise its minister about a specific problem that exists. The minister may then arrange for a bill to be drafted to fix the problem.
Community groups, businesses or lobby groups may be interested in changing or improving a specific area of Australian law. They can approach members of parliament with suggestions for bills.
Political parties have their own ideas about how Australia should be governed. In Parliament, parties introduce bills which aim to put their ideas into action.
The Parliament can set up a parliamentary committee to examine a current issue. If the issue requires action, the committee may suggest that a bill be introduced.

History

The law-making process used in the Australian Parliament comes from the practices of the British Parliament, developed over many centuries. The word ‘bill’ probably comes from the Latin word bulla, meaning ‘seal’. In medieval times, seals were put on documents written by a king or person in authority. During the 16th century in England, the word ‘bill’ came to mean a draft for an Act of Parliament.

The practice of the Clerk reading the bill aloud 3 times dates back to the early British Parliament, before printing was invented and many people could read. The Clerk had to read the bill aloud so that members of parliament knew what the bill was about. Today bills still go through 3 ‘readings’ but the Clerk only reads the title of the bill.

Parliamentary Education Office (peo.gov.au)

This diagram illustrates the usual path of a bill through the Australian Parliament to become Australian law.

In the House of Representatives a bill goes through the following stages:

1st reading—the bill is introduced to the House of Representatives.
2nd reading—members debate and vote on the main idea of the bill.
House committee (optional stage)—public inquiry into the bill and reporting back to the House.
Consideration in detail (optional stage)—members discuss the bill in detail, including any changes to the bill.
3rd reading—members vote on the bill in its final form.

The bill is passed in the House of Representatives and sent to the Senate.

Senate referral—the Senate may refer the text of the bill to a Senate committee for inquiry (this can happen while the bill is in the House).

In the Senate a bill goes through the following stages:

1st reading—the bill is introduced to the Senate.
2nd reading—senators debate and vote on the main idea of the bill.
Senate committee (optional stage)—public inquiry into the bill and reporting back to the Senate.
Committee of the whole (optional stage)—senators discuss the bill in detail, including any changes to the bill.
3rd reading—senators vote on the bill in its final form.
The bill is passed in the Senate.

The bill is given Royal Assent—The Governor-General signs the bill.

The bill becomes an Act of Parliament—a law for Australia.

Parliamentary Education Office (peo.gov.au)

This image shows the different sections of a bill. The top third shows the bill title and year. The middle third shows an excerpt from bill clauses and sub-clauses. The bottom third shows excerpts from bill definitions.

Parliamentary Education Office (peo.gov.au)

This diagram illustrates the role of executive government in turning policy into law.

1. The executive government decides policy then drafts and introduces bills to the Parliament.

2. Bills are considered by the Parliament.

3. If passed by the Parliament, the bills are approved by the Governor-General.

4. Bills become Acts of Parliament and therefore laws, which are administered by government departments.