How Legislation Is Made

Legislation usually originates as an idea for solving a social problem, promoting some desired government policy or generating government income. Sometimes law reform bodies will provide the inspiration for such ideas, sometimes a government department, sometimes an independent member of parliament, or sometimes they will come from the policy platform of the party in power. The idea is usually considered by the government in federal or state cabinet before it becomes the subject of public debate, though it can originate from an individual member of parliament as a Private Member’s Bill. Once the government has decided that legislation is necessary to give effect to the idea, instructions will be forwarded to the parliamentary drafting department to prepare a Bill.

A Bill is a proposed Act. Once a Bill is introduced into parliament, it will have to go through three readings in each of the two houses of parliament (except in Queensland which has no upper house). In the case of a federal Bill it will be considered by the House of Representatives and the Senate. In the case of a Tasmanian Bill, it will be considered by the House of Assembly and the Legislative Council. Serious parliamentary debate will take place at the ‘second reading’ stage. Amendments to a Bill are often made at this stage. It is also increasingly common for important or controversial Bills to be considered by ‘committees’ of the Senate or Legislative Council. Amendments to a Bill will often result from this process.

Before a Bill becomes an Act it must be given assent by the Queen’s representative. In the case of a state Bill, the Governor gives the assent, and in the case of a commonwealth Bill, it is the Governor-General. This process is a remnant of the fact that federal and state parliaments are still formally subject to the Crown.

The Act must then come into effect, that is, actually become law. Sometimes the Act will say that it comes into effect on assent. At other times the Act, or different parts of the Act, will come into effect when ‘proclaimed’ on a particular day. This is done by a notice in the Commonwealth or State Government ‘Gazettes’. There may sometimes be years of delay in an Act coming into effect because the government becomes unsure about the Act, funding is lacking or the detailed administrative arrangements have to be made for its implementation.

An Act may amend another Act. It will have the word ‘Amendment’ in its title. Some original Acts are amended many times. For instance the Criminal Code Act 1924 (Tas) has seen many changes since 1924.

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 ‘delegated legislation’ because Parliament has ‘delegated’, or given, its law-making power to another person or body. Parliament delegates its power for a number of reasons. Obviously it is much quicker for a parliament to lay down general principles in an Act and leave the day-to-day details to be worked out by those who will administer the law. These day-to-day details may need to be made, altered or repealed quickly, rather than through the lengthy process of making and passing legislation. Finally, delegated legislation allows for the administrator or enforcer to be a specialist or expert in some particular area.

Acts of parliament are binding on all courts and judges. Judges cannot over-rule an Act, unless an Act is unconstitutional, that is, beyond the power of the Commonwealth or State parliament which passed the Act. It is the constitutional role of the High Court of Australia to declare that an Act, or part of it, is invalid and of no effect where it is in breach of the Australian Constitution. It is very rare for state legislation to be in breach of state constitutions since there is no practical limit on the powers of states to legislate other than the Australian Constitution.

Judges, and in many cases special tribunals, also have wide powers to review decisions made under legislation and delegated legislation by ministers, officials and administrative bodies. These powers of review come from both legislation such as the Commonwealth Administrative Decisions (Judicial Review) Act1977 (Cth) and the common law. This important area of law is known as Administrative Law. Freedom of information is a necessary adjunct of this area of law. As government functions are increasingly privatised, there is a question as to the extent to which the principles of administrative law apply to private bodies carrying out those functions.