One of the functions of a parliament is to enact legislation, also known as Acts or statutes, which are designed to regulate certain aspects of society. An Act of Parliament is considered to be the primary source of the law. This means that the law contained in the Act has priority over the common law (judicial decisions from the courts). Some states or territories have Codes. Where a Code exists, it is intended to be a complete statement of law in that particular area; for example, the Criminal Code (WA) which is intended to operate independently of the case law. While parliament enacts the legislation, the role of the court is to interpret those sections of the legislation that are relevant to the cases before it.

The state and federal parliaments consist of a lower house of representatives and an upper house of review. The exceptions are Queensland and the territories where there are no upper houses of parliament. There is an established procedure for the passage of legislation through both the state and federal parliaments. An item of legislation will be known as a ‘Bill’ prior to it being finally passed into law when it then becomes an Act. Refer to Figure 1.1.

There are many Acts of Parliament at both the state and federal levels which regulate and control the practice of medical practitioners and the provision of medical services. To give some examples, at the state level, there are statutes that set the standard of practice against which the conduct of medical practitioners will be compared in making a decision as to whether there has been a breach of the duty of care, legislation identifying substitute decision-makers when a patient lacks capacity to make their own healthcare decisions, legislation controlling workplace health and safety and legislation providing avenues for complaints by healthcare consumers about the care they have received from a medical practitioner. At the federal level, the legislation may address issues such as funding and regulating Commonwealth healthcare agencies and services.

The law at the state and federal level is also impacted upon by Australia’s international obligations. International law is a body of rules that regulate and control the conduct of nations in their dealings with one another in an international context. These general principles of international conduct are variously called treaties, protocols or declarations and are negotiated by members of the United Nations. When the Commonwealth government is a signatory to an international treaty, it must pass domestic legislation that is consistent with the obligations of that particular treaty. Therefore, the influence of international treaties and conventions on Australian domestic law is becoming increasingly significant. For example, the language of the mental health legislation in each of the states and territories draws heavily on the Universal Declaration of Human Rights and the laws in relation to children reflect the obligations imposed under the Declaration of the Rights of the Child (Article 4) and the United Nations Convention on the Rights of the Child (Article 24). Australia is a signatory to these documents.

While a law is progressing through parliament, it is referred to as a Bill. Once passed by parliament and assented to by the Governor-General, it becomes an Act of Parliament. The process involved in the passing of an Act entails the following of certain procedures in a prescribed sequence as shown in Figure 1.1.

The first stage is when members of parliament are given notice that at the next sitting of parliament a Bill will be introduced. Explanatory documents and a brief outline of the reasons for the Bill usually, but not always, accompany this announcement. The Bill is then placed on the agenda for the next parliamentary sitting. Unless the Bill pertains to a matter of urgency, it is not dealt with in detail at that sitting other than by way of a reading of the long title. This is known as the first reading and generally the whole Bill is not read. Ministers are given the documents to take away and read in preparation for the next stage. If the matter is urgent then standing orders will be suspended and the Bill will be debated and passed that day. Such a situation occurred in New South Wales in 1984 when the Minister for Health was given power to close public hospitals without prior consultation with the public or officers of the Department of Health. As a result, and despite public outcry, Crown Street Women’s Hospital in Sydney was closed the following day.

Under ordinary circumstances, the Bill is debated at a later date. This is referred to as the second reading. At that time the matter is debated and the parties in opposition may propose amendments before the Bill is passed by the lower house.

At the committee stage, each of the provisions of the Bill will be debated with the full house of parliament sitting as a committee. This stage of the process is a procedural mechanism and does not require the members of the parliament to operate as an investigative committee. The purpose is to consider the details of a Bill after the second reading and examine any amendments proposed by the upper house if it is referred back. Basically this process is a way of determining whether any of the provisions in the Bill fail to meet the intention of the proposed law, or if there are any unintended consequences arising from any sections of the Bill. The Bill then moves on to a third reading and is passed by the lower house. In situations where the government has an overwhelming majority in the house, it is possible that the Bill can be forced through all of these processes and emerge without undergoing the scrutiny that would be insisted upon if the numbers of government and opposition were more balanced.

The Bill is then referred to the upper house where it is examined and debated in a manner and sequence similar to that of the lower house. Any amendments to the Bill recommended by the upper house are referred back to the lower house and if these are accepted, the Bill is presented to the Governor-General or Governor for Royal Assent. Once this occurs the Bill becomes an Act of Parliament. The Act may not become effective immediately as it must be proclaimed. Sometimes the proclamation date will be mentioned in the Act, but usually it will be at a date to be fixed. One reason for this delay is to enable the executive government or bureaucracy to establish the necessary mechanisms for implementing the Act. Rarely will an Act be set up to take effect retrospectively.

One of the last sections in an Act confers on the Governor-General the power to make regulations that may be necessary for the administration of the Act. Regulations provide the essential details of administration that may change more frequently than the Act can be amended by parliament. Regulations are necessary to enable the daily implementation of the Act. The regulations are called delegated legislation. Regulations are usually drafted in the Attorney-General’s Department, advised by the department responsible for administering the Act. Though the regulations are tabled in parliament they do not progress through parliament in exactly the same manner as a Bill.