What is a NSW Act?
An Act (sometimes called a Statute) of New South Wales (a NSW Act) is a law that has been:
- passed by both Houses of the Parliament of New South Wales (that is, the Legislative Assembly and Legislative Council), and
- assented to by the Governor on behalf of the Queen.
A proposed NSW Act is called a Bill while it is in the Parliament and may be amended by either House of Parliament during its passage. See also How legislation is made.
This information is limited to how to read NSW Acts and does not necessarily explain how the Acts of the Commonwealth and those of the other States and Territories should be read.
Types of NSW Acts
Generally speaking, there are 2 kinds of NSW Acts:
- A principal Act is an Act that contains substantive legal provisions that are not limited to the repeal or amendment of other legislation. An example of a principal Act is the Crown Land Management Act 2016.
- An amending Act is an Act that is limited to provisions that either repeal or amend other legislation (or both). An amending Act typically has the word "repeal" or "amendment" (or both) in its name. See, for example, the Industrial Relations Amendment (Industrial Court) Act 2016.
Section 30C of the Interpretation Act 1987 will repeal an amending Act once all of its repeals or amendments have commenced unless the Act provides differently. This will usually occur on the day after it is fully commenced. However, the repeal of an amending Act does not undo any of the repeals and amendments it makes because of section 30 of the Interpretation Act 1987.
Features common to all NSW Acts
All principal and amending NSW Acts have at least the following kinds of provisions.
The long title is located at the beginning of a NSW Act. It begins with the words "An Act", followed by a statement about what the Act deals with.
For example, the long title for the Crown Land Management Act 2016 is:
- "An Act to make provision for the ownership, use and management of the Crown land of New South Wales; to repeal certain legislation consequentially; and for other purposes."
The enacting formula occurs after the long title, but before the substantive text of a NSW Act. It indicates that the Parliament has made the law. The current enacting formula for NSW Acts is:
- "The legislature of New South Wales enacts:"
The enacting formula is usually omitted from versions of the Acts posted on this website in HTML format under the authority given by section 45E of the Interpretation Act 1987. The enacting formula appears in the As Made version of the Act on this website.
The citation section is the first section of a NSW Act. It specifies the name (sometimes called the short title) of the Act.
The commencement section is typically the second section of a NSW Act and provides for when the Act commences.
A commencement section may take a variety of forms, including the following:
- The Act may commence on its date of assent (which is the day the Governor signs it into law on behalf of the Queen).
- The Act may commence on a day (or a combination of different days) after the date of assent appointed by a proclamation of the Governor published on this website.
- The Act may commence on a particular day specified by the commencement section.
- The Act may commence on the occurrence of a particular event specified by the commencement section (a common example of this is when an Act is commenced on the commencement of some other Act).
Section 23 of the Interpretation Act 1987 provides for the commencement of a NSW Act in the unlikely event that the Act does not have a commencement section. In this case, commencement will happen 28 days after its date of assent.
Unless the Act provides differently, the Act will commence at the beginning of the day concerned because of the operation of section 24 of the Interpretation Act 1987.
Structure of principal Acts
A principal Act can have 2 basic structural elements:
- the body of the Act, and
- the schedules to the Act.
Body of a principal Act
The body of a principal Act is made up of provisions called sections that state the law.
Sections are sometimes organised within larger structures to assist readers in understanding how provisions fit together. These structures, beginning from the highest structural level, are:
Although it is possible to have Chapters and Parts that consist only of sections, Divisions must occur in Parts and Subdivisions in Divisions.
For principal Acts that have Chapters or Parts as the highest level structure:
- The first Chapter or Part will typically be headed "Preliminary" and contain the citation section, commencement section and a section dealing with interpretation (usually headed Definitions) and sometimes a section setting out the objects of the Act.
- The last Chapter or Part will typically be headed “Miscellaneous” and usually contains a section dealing with the power of the Governor to make regulations and other miscellaneous provisions that are not related only to another Chapter or Part.
Schedules to a principal Act
The schedules to an Act are usually headed "Schedule". However, occasionally they may include dictionaries or differently named appendices. The schedules contain related ancillary or supplementary provisions.
For principal Acts, it is common for the following kinds of Schedules to be included:
- A Schedule of repeals or amendments (or both) required for the Act to come into force.
- A Schedule containing savings and transitional provisions.
For a Schedule containing savings and transitional provisions:
- A savings provision is a provision that is intended to narrow the effect of the principal Act to preserve some existing legal rule, right or liability from its operation. For example, a savings provision might allow a person to exercise an existing right even though the principal Act abolishes it for the future.
- A transitional provision is a provision that regulates how a principal Act comes into effect and (where necessary) modifies its effect during the period of transition. For example, a principal Act may defer the commencement of a new obligation to get a licence for a specified period to enable persons affected by the obligation to apply for one.
- The Schedule will usually also contain a power for the Governor to make savings and transitional regulations consequent on the enactment of the principal Act or any other Act that amends it.
Structure of amending Acts
An amending Act usually has 2 structural elements:
- the body of the amending Act, and
- the schedules to the amending Act.
The typical amending Act will include only the citation and commencement sections for the Act in its body. Any repeals or amendments will usually be located in one or more of its schedules.
If the repeals or amendments are limited in nature, they may sometimes be included in sections in the body of the Act rather than in schedules.
Aids to interpreting Acts
In Commissioner of Taxation v Consolidated Media Holdings Ltd  HCA 55 at , the High Court of Australia summarised the basic approach to statutory interpretation (sometimes called statutory construction ) as follows:
- "'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text.' So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself."
Here are some practical tips to follow when interpreting NSW Acts:
- The ordinary meaning of text is always the most important starting point. If the text has a clear and unambiguous meaning, the courts will give it that meaning.
- To understand an Act, you need to look at it as a whole document rather than as a discrete set of provisions. It is wrong to read provisions in isolation without considering other provisions (for example definitions that might be located somewhere else in the Act or savings and transitional provisions located at the end of the Act).
- If a provision of an Act could have more than one meaning, section 33 of the Interpretation Act 1987, requires the meaning that promotes the purpose or object of the Act to be preferred to a meaning that would not.
- The purpose or object of an Act can sometimes be found by looking for purposes or objects expressly stated in the Act. However, often there will not be an express statement in the Act.
- Sometimes the purposes or objects are obvious simply by looking at what the Act is dealing with. In some cases, looking at relevant extrinsic material will be useful. Extrinsic material is material that is not included in the text of the Act. Section 34 of the Interpretation Act 1987 permits the use of certain extrinsic material to confirm the ordinary meaning of an Act or to determine the meaning of ambiguous or obscure provisions or provisions whose ordinary meaning would lead to manifestly absurd or unreasonable results.
- Examples of relevant extrinsic material are the explanatory note for the Bill introduced in Parliament that resulted in the Act and speeches made by Ministers and other members of Parliament about that Bill.
- Although the definitions for terms used in the Act will ordinarily be included in the Act, sometimes they will be found in the Interpretation Act 1987. For example, section 21 of that Act defines certain words and expressions that are commonly used in legislation.
- The Interpretation Act 1987 has many other provisions that are useful when reading Acts and should be consulted before deciding whether or not an Act deals with a matter. See also Guide to interpreting NSW legislation.
The constitutional arrangements in place for New South Wales are governed by the following Acts of New South Wales, the Commonwealth and the United Kingdom:
- Constitution Act 1902
- Commonwealth Constitution (which was originally set out in section 9 of the Commonwealth of Australia Constitution Act (UK))
- the Australia Acts (which are the Australia Act 1986 (Cth) and Australia Act 1986 (UK))
- Statute of Westminster 1931 (UK)
- Imperial Acts Application Act 1969
- Succession to the Crown Act 2015 (Cth)
The Constitution Act 1902 (NSW) provides for the following essential features of the system of government for New South Wales:
- a Parliament of New South Wales constituted by the Queen and 2 Houses (the Legislative Assembly and Legislative Council) with power to make laws for the peace, welfare, and good government of New South Wales
- 4-year fixed term for Parliaments
- a Governor of New South Wales to exercise the powers of the Queen in relation to New South Wales
- an Executive Council, Ministers and Parliamentary Secretaries (including provisions for administrative arrangements concerning the allocation of Acts and portfolios among them)
- a Consolidated Fund into which all public money must be paid unless an Act provides differently, with appropriations from that Fund requiring the authorisation of an Act
- the maintenance of a system of local government
- provisions to ensure that certain laws cannot be made unless they have been approved at a referendum (including laws seeking to abolish the Legislative Council or change how the Houses of Parliament are elected)
- provisions to resolve deadlocks between the Houses of Parliament over Bills
- provisions to ensure that Judges of courts (including the Supreme Court) cannot be removed from office by the Governor unless it is on an address from both Houses of Parliament, in the same session of Parliament, seeking removal on the ground of proved misbehaviour or incapacity.
The Commonwealth Constitution established a federation on 1 January 1901 consisting of the Commonwealth and the States.
In relation to the Commonwealth, the Commonwealth Constitution provides for the following:
- a Commonwealth Parliament constituted by the Queen and 2 Houses (a House of Representatives and a Senate) with legislative powers over specified matters
- a Governor-General to represent the Queen and exercise her powers in relation to the Commonwealth
- a Federal Executive Council and Ministers
- the High Court of Australia and such other federal courts as the Commonwealth Parliament may establish.
In relation to the States, the Commonwealth Constitution provided for the former colonies (including New South Wales) to become States and preserved their existing laws and constitutions. The Commonwealth Constitution also created some limitations on the power of State Parliaments to make laws, including the following:
- a State cannot make laws that apply to the seat of government of the Commonwealth or places acquired by the Commonwealth for public purposes
- a State cannot impose customs or excise duties
- a State cannot coin money
- a State law cannot discriminate against Australian citizens resident in other States
- a State law cannot discriminate against interstate trade, commerce or intercourse
- a State cannot raise or maintain a naval or military force without the consent of the Commonwealth Parliament
- a State cannot impose a tax on Commonwealth property
- a Commonwealth law prevails over an inconsistent State law.
- to terminate the power of the United Kingdom Parliament to make legislation for a State
- to remove restrictions on the power of a State Parliament to legislate extra-territorially or repeal laws of the United Kingdom
- to provide for the Governor of a State to be the representative of the Queen in relation to the State
- to require the Queen to exercise her powers (including the power to appoint or remove a Governor) only on the advice of the Premier of the State
- to abolish appeals from State courts to the Judicial Committee of the Privy Council in London.
The Statute of Westminster 1931 (UK) enabled the Commonwealth Parliament to legislate extra-territorially and to repeal laws of the United Kingdom if the Parliament had power to do so under a head of power set out in the Commonwealth Constitution.
The Statute also made it clear that it did not give power to the Commonwealth Parliament to amend the Commonwealth Constitution except as provided by the Constitution or to make laws within the authority of the States unless it was authorised by the Constitution.
The Australia Acts prevent the amendment or repeal of the Statute by the Commonwealth unless it has been requested by all of the States.
The Imperial Acts Application Act 1969 (NSW) provided for the continuation in force of certain English or British Acts, and the repeal of other English or British Acts, in their application to New South Wales. It also reproduced certain provisions of some of the Acts that were repealed with continuing relevance for New South Wales.
In particular, certain Acts (called constitutional enactments) set out in Part 1 of the Second Schedule to the Act were preserved, including Magna Carta, the Bill of Rights of 1688 and certain Acts relating to the succession of the Crown.
The Succession to the Crown Act 2015 (Cth) was enacted at the request of each of the States and mirrors legislation in other countries (including the United Kingdom) that have the Queen as Head of State. The principal object of the Act was to provide that succession to the Crown was not to be determined by reference to the sex of a person. As a result, the first child (whether male or female) of the monarch will be first in line to the throne.
The Act also amended or repealed some of the English or British Acts (including some preserved by the Imperial Acts Application Act 1969 (NSW)) relating to succession to the Crown in their application to Australia and its States.
The legislation of New South Wales is generally drafted by the NSW Parliamentary Counsel's Office, which also maintains this website.
Although the Parliamentary Counsel's Office chooses the words used in legislation, it does not choose the policy that is being implemented and is not involved in how it is administered.
Questions about the policy contained in legislation or its administration should be raised directly with the relevant Government Department (in the case of Acts of Parliament and legislation made by the Governor) or the person or body that makes the legislation (in other cases). The Parliamentary Counsel's Office cannot assist you with these questions.
There are 3 main types of legislation made in New South Wales:
- Acts of Parliament
- Subordinate legislation
- Environmental planning instruments
An Act of Parliament (sometimes called a Statute) is a law that has been:
- passed by both Houses of the Parliament of New South Wales (that is, the Legislative Assembly and Legislative Council), and
- assented to by the Governor on behalf of the Queen.
An Act commences life as a proposed Act (called a Bill), which is introduced and debated in both Houses of Parliament. A Bill is sometimes amended by a House of Parliament during its passage.
There are 2 kinds of Bills:
- A Government Bill is a Bill that is introduced into Parliament on behalf of the Government by a Minister or Parliamentary Secretary
- A Non-Government Bill is a Bill introduced into Parliament by a Member of Parliament in his or her capacity as a Member (and not on behalf of the Government, although sometimes on behalf of an opposition party)
Each House of Parliament has a special procedure (governed by its own standing or sessional rules and orders) for how a Bill should be introduced, debated, amended and passed. The website for the Parliament of NSW contains further information about these special procedures.
A Bill that is passed by both Houses of Parliament must be signed by the Governor (which is called giving assent or the Royal assent) to become an Act. When the Governor assents to an Act, it is said to have been enacted.
The commencement of a new Act will depend on the commencement section (usually section 2). It may be the date of assent, a later day specified in the commencement section or a day that is left to be appointed by the Governor by a future proclamation.
Subordinate legislation is law made under the authority of a power conferred by an Act of Parliament. On this website, subordinate legislation is simply listed under, or referred as, regulations even though it includes other types of instruments.
Acts often confer the authority to make subordinate legislation on the Governor. However, Acts sometimes confer the authority on other persons or bodies (for example, Ministers, courts and tribunals and public officials).
The most common example of subordinate legislation is a statutory rule. Section 21 (1) of the Interpretation Act 1987 defines a statutory rule to be:
- a regulation, by-law, rule or ordinance made by the Governor, or
- a regulation, by-law, rule or ordinance made by another person or body that must be approved or confirmed by the Governor (for example, a University by-law made under section 36 of the University of Sydney Act 1989 ), or
- a rule of court (which is a rule made by the person or body having power to make rules regulating the practice and procedure of a court or tribunal).
However, the Governor no longer makes ordinances.
Part 6 of the Interpretation Act 1987 provides that written notice of the making of a statutory rule must be tabled before each House of Parliament within 14 sitting days after it is published on the NSW legislation website (that is, this website). Either House of Parliament may pass a resolution that disallows a statutory rule at any time after it is published. However, notice of a resolution to disallow a statutory rule must be given no later than 15 days after the written notice of its making is tabled.
A statutory rule can be disallowed even if only one House of Parliament passes a disallowance resolution. The disallowance of a statutory rule operates to repeal it and to reinstate the legislation in force before the changes made by the statutory rule. Also, section 8 of the Subordinate Legislation Act 1989 prevents the remaking of a disallowed statutory rule (in substantially the same terms) for 4 months.
Examples of other kinds of subordinate legislation include (but are not limited to) the following:
- proclamations made by the Governor that commence provisions of Acts,
- proclamations made by the Governor that alter local council areas or amalgamate them under the Local Government Act 1993,
- rules made by the Legal Profession Admission Board concerning the admission of lawyers,
- water sharing plans made by order under the Water Management Act 2000,
- proclamations, orders or notices that operate to amend an Act (see, for example, a threatened species notices under the Threatened Species Conservation Act 1995 )
Subordinate legislation that is not a statutory rule cannot be disallowed by Parliament unless the Act under which it is made expressly provides for it. See, for example, section 26 of the Marine Estate Management Act 2014, which provides that proclamations under that section can be disallowed in the same way as statutory rules.
All statutory rules must be published on this website before they can take effect. Other subordinate legislation will usually be required to be published in either the Gazette or on this website by the Act under which it is made. An example of subordinate legislation that is required to be published in the Gazette rather than on this website is threatened species notices under the Threatened Species Conservation Act 1995.
Environmental planning instruments (sometimes called "EPIs") are local environmental plans ("LEPs") and State environmental planning policies ("SEPPs") that are made under the Environmental Planning and Assessment Act 1979. Environmental planning instruments, unlike statutory rules, cannot be disallowed by Parliament.
Although they are made under the authority of an Act, environmental planning instruments are treated as being a distinct category of legislation separate from other subordinate legislation.
Local environmental plans are made for particular local government areas. They are made either by the Greater Sydney Commission (if it relates to land in the Greater Sydney Region under the Greater Sydney Commission Act 2015) or the Minister for Planning (if it relates to other land). They may also be made by a delegate of the Commission or the Minister.
New local environmental plans usually adopt certain provisions specified by the Standard Instrument (Local Environmental Plans) Order 2006 made by the Governor under section 33A of the Environmental Planning and Assessment Act 1979.
State environmental planning policies are made for either the whole of the State or special areas of the State. They are all made by the Governor.
All environmental planning instruments and amendments to the Standard Instrument (Local Environmental Plans) Order 2006 must be published on this website before they can take effect.
The following documents outline some of the drafting practices of the NSW Parliamentary Counsel’s Office (the PCO).
These documents express the official views of the PCO concerning those practices, as explained in DP1: Using PCO drafting practice documents.