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The Fair Work Act and Other Names of Shame
Australian Journal of Administrative Law, 16 3: 135-137, 2009
See all articles by Graeme D. Orr
Graeme D. Orr
The University of Queensland - T.C. Beirne School of Law
Joo-Cheong Tham
Date Written: 2009
The title of a piece of legislation should serve a simple, single purpose. It ought provide a descriptive handle. Think of the Trade Practices Act 1974 (Cth) , the Ombudsman Act 1976 (Cth) or the various Industrial Relations Acts. "This is the field I regulate and this is what you call me." Language of course is not always so simple. What forms the Unfair Contracts Act to one sub-contractor may, to the powerful corporation who hires that sub-contractor, read as the Unmaking the Sanctity of Contracts Act. Legislative titling is an arcane field, negotiating the boundaries of the legislative and administrative processes of government. In theory, Parliaments can amend the title of a Bill or Regulation. (Short and long titles, the preamble or recital and purpose clause have been described as "amendable descriptive components": Bennion F, Statutory Interpretation (2nd ed, Butterworths, London, 1992) pp 496-506.) But in practice Parliaments no more debate, let alone meddle with, legislative titles than they do the headings to statutory parts and sections. Naming legislation is thus an act of executive fiat, exercised by the Minister who brings the ultimate bill to Cabinet. Yet the tradition was that Ministers, like Parliaments, concerned themselves with the substance of legislation, not its form. At best, there was a Cabinet veto on inappropriate legislative titles, rarely used. Instead, the matter was in the hands of the departmental staff and parliamentary counsel who drafted the flesh of the written law on the skeleton of government policy.
JEL Classification: K00
Orr, Graeme and Tham, Joo-Cheong, The Fair Work Act and Other Names of Shame (2009). Australian Journal of Administrative Law, 16 3: 135-137, 2009. Available at SSRN: https://ssrn.com/abstract=2617100
Graeme Orr (Contact Author)
The University of Queensland - T.C. Beirne School of Law ( email )
4072 Brisbane, Queensland 4072
University of Melbourne ( email )
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