Public Law Essentials 03: Legislation and the legislative process

Cain Sibley, Isla Tobin, Anshul Baird
07 Jul 2022 Time to read: 9 MIN

This Public Law Essentials guide summarises the basics of legislation and the legislative process. It is designed to be a quick and handy reference on the development of legislation from policy to its final form.

What is legislation?

The law that governs Australia is made up of legislation and common law. There are three major sources of legislation:

  1. An Act of Parliament is the pinnacle of the legislation hierarchy. The Australian Parliament has the power under section 51 of the Constitution to make laws with respect to a number of subject areas. Although only specific subject matters are mentioned, in practice, due to the way in which the High Court has interpreted the Commonwealth's legislative powers, Parliament's legislative powers are broad. An Act of Parliament can only be struck down if it is found to be unconstitutional.
  2. Regulations are a form of delegated legislation. Many Acts of Parliament contain regulation-making powers and they are all generally expressed in a similar way. Regulation-making powers often allow regulations to be made "prescribing matters that are necessary or convenient to be prescribed". Regulations are always made by the Governor-General and must be consistent with the Act.
  3. Legislative Instruments are at the bottom of the legislative hierarchy and come in a variety of names such as Rules, Determinations and Guidelines. Acts of Parliament and Regulations can authorise the making of legislative instruments. The person authorised to make a legislative instrument might be a Minister, Secretary or some other official. Legislative instruments must be consistent any regulations made under the relevant Act and the Act itself.

The other main source of law, the common law, is law derived from cases which have been decided in courts of law.

Legislative process: An Act of Parliament

The process to create an Act of Parliament is comprised of several steps which are shown below:

Process to create an act of parliament

The first stage is to obtain policy approval. This occurs when the Government agrees to introduce legislation to enact a proposed policy. Prior to seeking policy approval, it is important to consider whether the proposed policy requires legislation or whether the policy can be implemented through alternate mechanisms that may be timelier, less resource-intensive or provide greater certainty. From the outset of the process, the policy details should be settled and clear, any relevant stakeholders should be consulted and there must be clarity on how the legislation achieves the intended policy outcomes.

Depending on the significance of the policy or whether the changes are technical in nature, policy approval can be sought through the Cabinet process, writing to the Prime Minister, briefing the relevant Minister or seeking approval from the First Parliamentary Counsel of the Office of Parliament Counsel (OPC). Once a Bill is introduced into Parliament, the policy authority expires, and new policy authority must be sought if the Bill is to be reintroduced or the Government wants to make amendments.

The order that Bills are drafted in is determined by the Parliamentary Business Committee of Cabinet (PBC), which assigns Bills a status in order of priority: Category T for time-sensitive Bills, Category A for high priority, Category B for medium priority and Category C for lower priority. In determining priority, the PBC considers government priorities, the Bill's political or financial significance, implementation dates, the advancement of the policy and legislative development.

The second stage is the drafting of the Bill, through engagement with OPC. OPC's role is to ensure the Bill is legislatively effective, achieves the intended policy outcomes, reduces regulatory burden and is expressed in plain English.

To assist, instructing agencies must provide OPC with drafting instructions which set out the policy aims and explain what the legislation should cover, in clear and simple language. More detail on what these instructions should contain is explained in the section on legislative design issues below. As well as providing ongoing drafting instructions the relevant Department is also responsible for creating the Explanatory Memorandum and the Minister's Second Reading Speech.

The drafting process often prompts questions about aspects of the policy, including minor implementation details, linkages to other legislative schemes or potential Constitutional issues, which the instructing agency must be able to resolve quickly, or seek legal advice on. As Category T Bills are expected to be introduced and passed within the same sitting, timeliness is key, otherwise the Bill's priority status may be lost.

Once the Department is satisfied with the draft, the Minister will approve the Bill, Explanatory Memorandum and Second Reading Speech. The Bill must then obtain further governmental approval before its introduction to Parliament. This requires, first, approval by the Minister, and secondly, approval by the Government members' policy committee and the Caucus (for a Labor government) or Joint Party Room (for a Coalition government). Additionally, there may be an exposure draft process.

The next stage is Parliamentary debate. This requires the Bill to be approved by both Houses of Parliament. Typically, Bills start in the House of Representatives but all Bills, except money Bills, may be introduced (and start) in the Senate. The following paragraphs outline how approval occurs in one House:

  1. Notice is given for a Bill to be introduced into the House. Notice requires the relevant Minister stating their intention to the Clerk of the House to introduce the Bill on the next sitting. This allows the Clerk of the House to list the Bill on the Notice Paper.
  2. The Bill is initially presented to the House in the First Reading Speech of the Bill. The Clerk of the House presents the Bill by stating its short title and the relevant Minister presents the Bill (and explanatory memorandum) to the Clerk. Following this, the Clerk reads the long title and copies of the Bill are distributed to the Members of the House. This is the first time the Bill becomes public.
  3. The next stage is the Minister's Second Reading Speech. At this stage the Minister explains the purpose, principles and effect of the Bill. Often the First Reading Speech and the Second Reading Speech occur at the same time. After this, debate is usually adjourned to allow members time to read the Bill.
  4. The second reading debate affords members of the House the opportunity to discuss the principles of the Bill. The second reading debate is started by the Shadow Minister who outlines the Opposition's position on the Bill. Other members of the House including those in government can express their opinion on the Bill. The debate ends with a vote being taken to establish if the House has agreed to the Bill in principle. If the House has agreed, there will then be a third reading speech and consideration of the Bill in detail.
  5. If required, the Bill is considered in further detail and members of the House may debate specific clauses. However, this stage is often bypassed, as members can agree that a Bill does not need to be examined in detail.
  6. The final stage of House approval is the Third Reading Speech. This is a formal approval to allow the Bill to pass the House. The Minister will move a motion, which can be agreed to by members of the House. If the motion is approved, the Clerk will then read the long title of the Bill.

After the Bill has passed through one House in the process outlined above, the Bill will then pass to the other House to go through the same process. If an amendment is made after the Bill has passed one House, the Bill will then go back to the originating House to get approval with the new amendment.

In examining a Bill, either House can refer it to a Standing or Select Committee, who undertake work on behalf of Parliament. Committees are made up of members of Parliament from the Government and other political parties, and representatives from both Houses can comprise Joint Committees. Committees often specialise in a subject area and engage in a detailed examination of a Bill and the policy.

Typically, the Senate will refer Bills to the Scrutiny of Bills Committee (which assess Bills against individual rights). Additionally, the decision on whether a Bill should be referred for further inquiry on a specific issue is made by either the House of Representatives Selection Committee or the Senate Standing Committee for Selection of Bills.

The final stage is Royal Assent After the third reading has been approved by both Houses of Parliament, the Bill goes to the Governor-General for Royal Assent. Here, the Governor-General signs the Bill making it law. Depending on the Act's commencement provisions, the operation of this law may or may not begin immediately.

Legislative process: regulations

Regulations are created in a three-step process. First, there is the policy approval and advice of the Executive Council. Secondly, the regulations are drafted by OPC. Finally, the Executive Council puts the Regulations to the Governor General for signing.

You can find more information about the process of Executive Council consideration of regulations in the Executive Council handbook which is available on the PM&C website.

Regulations are a type of legislative instrument meaning the review process is the same as other legislative instruments, explained in the section below. The authority to make regulations can be challenged in court.

Legislative process: legislative instruments

Legislative instruments are created by the Executive. Depending on the type of legislative instrument, different parties will draft and drive it. Usually, legislative instruments, are driven by either the Minister or the Department. Legislative instruments are typically drafted by the OPC, in Departments or by law firms.

Legislative instruments usually have immediate effect and are not reviewed or debated. However, as soon as practicable, all legislative instruments must be registered and then tabled, under the Legislation Act 2003 (Cth). The basic rule is that a legislative instrument will be automatically repealed 10 years from the date it was registered. Legislative instruments can be disallowed if within 15 days of tabling the instrument a notice of a motion to disallow is given. If this motion is agreed to the legislative instrument fails to have effect.

Additionally, legislative instruments can be referred to the Senate Standing Committee for the Scrutiny of Delegated Legislation. This committee performs a similar role to the Senate Standing Committee for Scrutiny of Bills. Referral to this committee allows it to review legislative instruments for compliance with personal rights and can recommend that an instrument to be disallowed by a House.

Issues which arise when making legislative instruments

We have found that there are a number of issues which frequently arise when making legislative instruments. Set out below are some handy tips:

Prescribing matters by reference

Sometimes, it is convenient to make a legislative instrument by referring to another document, for example an Australian Standard, a map or some industry-specific document.

Unless the empowering legislation specifically provides, it is not possible to incorporate or refer to another document (that is not an Act or legislative instrument) as that document exists "from time to time". This is due to the operation of section 14 of the Legislation Act 2003 (Cth). It means that references to other documents in a legislative instrument are taken to be a static reference to the document as it existed on the day the legislative instrument was made.

Interpretation of instruments

Section 13 of the Legislation Act 2003 (Cth) has some handy provisions relating to the interpretation of legislative instruments:

  • The Acts Interpretation Act 1901 (Cth) applies to legislative instruments as if they were Acts (and it also applies to instruments that are not legislative instruments by virtue of section 46 of the Acts Interpretation Act);
  • Definitions in the enabling Act automatically apply to legislative instruments made under the Act; and
  • Legislative instruments must be read as being subject to (and consistent with) the enabling legislation.
Commencement of legislative instruments

Legislative instruments commence on the day after they are registered, unless the instrument provides for a different commencement day (Legislation Act 2003 (Cth), section 12(1)). It is possible for instruments to commence prior to registration (ie be retrospective) but it cannot operate to disadvantage or make someone liable for doing something or omitting to do something prior to the day of registration.

Consultation

There are consultation requirements for legislative instruments and the explanatory statement must set out the consultation that was undertaken, or if none was undertaken, why that was the case: Legislation Act 2003 (Cth), section 17.

Although a failure to comply with the consultation requirements does not affect the validity of an instrument (see Legislation Act, section 19), it is a matter which might be highlighted during the scrutiny process.

Common legislative design issues

Clear laws are easy to understand. Clear laws can be easily understood and administered meaning the law is accessible. In contrast, complex laws can be difficult to understand and administer, making the practical realities of the law frustrating and confusing.

There are several causes of complex law. Four common causes of legal complexity are:

  1. Complex policy. If there is a lack of clarity in the underlying policy this can lead to confusion when drafting and result in complex law. Additionally, if the policy issue is misunderstood and legislation was not actually required to solve the policy issue, this creates greater complexity. Clarity at all stages allows for the creation of clear laws.
  2. Tight deadlines can mean less time allocated to understanding the policy and facilitating clear drafting. To overcome this, sufficient time should be left to develop legislation and there should be ongoing discussions about timelines throughout the process.
  3. Unreadable and unusable drafting. The conversation between drafters and instructors must be ongoing. This ensures that a law is understood by those who have to administer it, ensuring that it is useable.
  4. Aversion to discretion in the law. Discretion in the law allows rules that can be widely applied to a range of situations. Discretion can come in a number of forms, including judicial discretion, official discretion and principles-based legislation. Without discretion in the law, laws can develop that allow only a small range of outcomes, or apply only to a small range of situations.

In order to avoid legal complexity, below are a few strategies to encourage good legislative design. In essence, both drafters and instructors need to be clear on the policy and to each other.

The drafter needs to be able to write a law that operates in an area that the drafter is not familiar with. This means they need to know:

  1. Who will the law apply to?
  2. Where is the law occurring?
  3. What will occur? (is an obligation being imposed?)
  4. So what? (if the obligation is not complied with)
  5. When? (in relation to both the law/obligations and the deadline for drafting)
  6. Why? (it is particularly important that the drafter knows if they are trying to address ongoing or past problems and the context of the situation, including knowledge of past legal advice)

A good instructor will facilitate the drafter to know the area and create clear law. An instructor needs to be familiar with the detail of the policy and have authority to act on behalf of the relevant agency.

Instructors should understand the need to communicate the issue clearly to allow the drafter to understand the entire issue. This means the following three areas must be covered:

  1. Background, including existing legislative context, political considerations and administrative considerations.
  2. The policy, including specific details about the aims and implementation.
  3. Administrative matters, including timetabling.

Instructors also need to deliver the information to the drafter clearly. This means using clear language and being specific. An instructor needs to be specific to both the proposed Bill, as well as the background (ie. key provisions of other Acts). To make sure enough specificity is delivered in relation to the Bill, it can be helpful to break the policy into sections.

Additionally, more detail can and should be provided throughout the entire drafting process. This occurs at two levels. Firstly, answering the drafter's questions and explaining if the policy has developed. Secondly, reviewing the drafter's work. In reviewing the drafter's work, the instructor must check that the draft Bill does administer the policy as outlined through the drafting instructions. The instructor must also point out errors and deficiencies, and notify the drafter if they do not understand anything.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.