5.2.3 Working with Statute

Also in this Chapter:

• 5.2.1 Modern Australian Law
• 5.2.2 Working with Case law
• 5.2.4 Practical guide to interpreting legislation

Key Legislation:

Patents Act:

• s41 Specifications: micro-organisms  
• Schedule 1 Dictionary

Patent Regulations:

• reg 1.3 Interpretation
• reg 2.2 Information made publicly available--recognised exhibitions
• reg 3.30 Prescribed period: deposit requirements taken to be satisfied
• reg 5.2 Definitions

On this page

• A simple guide to reading a statute:
  • Chapters of the Act and Regulations
  • Structure of a section/regulation
  • Punctuation
  • Important words
  • Specific terms
• Effect of legislation on case law.

Parliament-made law is binding on all courts and judges. Courts cannot overrule or challenge an Act unless they hold it to be unconstitutional (that is, beyond the powers given to the parliament by a state constitution or the Australian Constitution). Decisions about constitutionality are made by the High Court.

Each state parliament has the power to make laws for everyone living within the boundaries of the state. Laws made in one state have no force in another. The Commonwealth Parliament has the power to make laws for everyone living within Australia, but this power is limited to the subject matters listed in the Constitution.

Laws made by a parliament are called Acts, statutes or, more generally, legislation. While an Act is in draft form (that is, before it has been voted on and either passed or rejected by the parliament) it is called a Bill. Parliament may also repeal or amend an Act.

An Act may empower a public authority, a local council, a Minister controlling a government department or a public servant to make regulations, rules, ordinances or by-laws. These laws are collectively known as subordinate (or delegated) legislation.

A simple guide to reading a statute

There are two key issues when reading a piece of statute law:

• what does the statute say; and
• does the statute apply to my situation?

There are no 100% guaranteed rules for interpreting Acts, so there is no simple answer to either question. However, the following general rules provide a good approach to finding the meaning of a section of an Act. Exactly the same rules apply to interpreting the meaning of regulations.

Chapters of the Act and Regulations

The Patents Act is divided into chapters, as are the Patents Regulations. The chapters group sections that relate to a topic. The regulations associated with those sections appear in the corresponding chapter of the Regulations. For example, examination is covered by s45, which is in Chapter 3. The regulations relating to examination are in Chapter 3 of the regulations.

Structure of a section/regulation

The heading indicates the subject of the section. The subsections all relate to the subject of the section, as stated in the heading. They normally address different aspects of that subject.

Subsections are divided into numbered paragraphs and subparagraphs as a matter of convenience. A subsection could be written as one long sentence, but that would make it harder to read. Consequently, remember that all the paragraphs are part of the subsection and must be read as part of, and in the light of, the whole subsection.

Paragraphs and subparagraphs usually provide a list of things that are either alternatives or requirements. To tell what is going on, look at the words that link the paragraphs or subparagraphs. See ‘Punctuation’ and ‘Important words’ below.

Punctuation

Note that punctuation is an aid, but no more than an aid, to interpreting the meaning of the words. Consequently, the presence or absence of a comma may not be conclusive.

Important words

Words and their opposites:

Note that AND and OR are used as linking words between paragraphs and subparagraphs. It is important to be sure whether AND or is used, because this signals whether the items in successive paragraphs/subparagraphs are requirements or alternatives.

Opening words:

Words that go together:

Specific terms

• Dictionaries: The Patents Act and Regulations contain provisions that define specific terms.​​​​​​​ Schedule 1 to the Act defines terms used in the Act and Regulations, such as ‘approved form’, ‘basic application’, ‘Patent Office’ and ‘PCT’. Other provisions give definitions that only apply to parts of the Act or Regulations. For example:
  • Regulation 1.3(1) says ‘In these Regulations, unless the contrary intention appears:’ and lists definitions that apply throughout the Regulations but do not apply to the Act;
  • Regulation 5.2 says ‘In this Chapter:’ and then gives definitions that only apply to that chapter; and
  • Regulation 2.2(1) says ‘In this regulation:’ and then gives a definition that only applies to that regulation.
• Prescribed periods: Where the Act states that something is to be done ‘within the prescribed time’, you will find the relevant time period in the corresponding regulation. For example, reg 3.30 gives the prescribed times for complying with s41(4)(b);
• Approved forms: The term ‘approved form’ is defined in Schedule 1 in the Act as ‘a form approved by the Commissioner’. These forms do not appear in either the Act or the Regulations. They are the approved forms used by IP Australia.​​​​​​​

Effect of legislation on case law

An Act overrules the common law (case law) if both apply in the same area. Often an Act adds to an area of the common law, and sometimes Parliament passes an Act that replaces an area of common law completely. Common law that has been replaced may or may not be relevant to the interpretation of the new Act. Its relevance may be specifically indicated in the Act or may be determined only after careful interpretation of the Act.

Legislation attempts to control future activity, so it cannot cover or predict every possible scenario that may arise. A specific case may therefore require a court to decide an Act’s meaning in that case. Subsequently, the law on that topic is made up of both the Act and the court’s interpretation. For example, the law on families is not contained completely in the Family Law Act 1975 (Cth). It is found in a combination of the Act and decisions of the Family Court made on matters controlled by the Act.

Sometimes, an Act may be ambiguous and its interpretation by the courts may be difficult to predict for a particular case. When this occurs, the law is difficult to state one way or the other. In this situation, a lawyer can give two kinds of advice; what the law might, on some interpretations, allow, and what it definitely allows. ​​​​​​​