I delivered a paper on Legislative Process today for the Legalwise people.
Text of paper follows:-
The Legislative Process
Proposals for New Laws & Amendments to Existing Laws
My first and earliest recollection of being involved in legislative change was whilst I was a student at primary school.
Our teacher somehow persuaded a class of 30+ boys to write letters to the editor concerning the risk to children of free availability of fireworks. Not only was our letter published in the paper but the paper then sent a reporter along and took photos of us which ended up being an article in the paper about class. The letter, to the collective horror of the boys in my class, led to the restriction of the sale of fireworks.
How the teacher persuaded a bunch of 11 and 12-year-old boys to write a letter seeking restrictions on the sale of fireworks is beyond me.
More importantly, the first occasion I was involved in changing law, as a lawyer, made more sense, though I was actually a little oblivious to it until I found out what had happened.
I had been retained by the then State Government of New South Wales to negotiate and draft a custodian agreement under which all the workers compensation premiums of the then statutorily licensed workers compensation insurers were to be pooled. In doing so, I pointed out that under the then law, the actual transfer of shares (and the like) to the custodian would not have been exempt from Stamp Duty, then payable on sale of shares and the like.
Somebody was obviously paying attention.
The next I heard about it was, one afternoon, glancing through an update newsletter relating to changes in Stamp Duty. I literally found that my exact recommendation had been turned into an amendment to the Stamp Duties Act, amending the legislation to make the relevant transfer to the custodian exempt from Stamp Duty.
At the time I was in private practice and gave little or no thought to what had actually happened to generate the exemption from Stamp Duty.
What had actually happened was that somebody within the Workers Compensation Commission, which then had a different name, had had the forethought to refer my comment along the line to Treasury, which obviously had an interest in the profitability of the workers compensation scheme, which then took the opportunity to put a minor amendment into the next Law Reform Miscellaneous Provisions Act which relevantly amended the Stamp Duties Act.
Needless to say, it was years later when I was Assistant Crown Solicitor for the State of New South Wales became much more closely involved with the legislative process and how it works (or not).
As people attending the seminar will appreciate the actual basic procedure for implementing legislative change, by that State and Federal levels, is much the same and not particularly complicated, at least not at first blush.
Politics can make it very interesting.
However, the reality is that amending legislation and or introducing new legislation are both processes which can be fraught with difficulty delay and frustration. Sometimes, it can be quite exciting.
It all depends on politics.
I begin by identifying a number of criteria by reference to which I see legislative change commonly being driven
• “Party policy”
• Departmental Need
• Law Reform
• Reaction to Court Decision
Examples of different legislative proposals falling into place with different speeds in respect of some “recent” proposals include: –
• The recent response of the NSW Government to the decision in Independent Commission Against Corruption v Cunneen  HCA 14 (15 April 2015) is probably the most recent and high profile legislative change driven by a Court decision, but the concept is far from uncommon;
• “same-sex” marriage;
• the losses citizenship proposals for those involved in certain warlike activities overseas;
• the National Legal Profession (about which more follows).
Much of the detail of the formal process for the making of legislation in the NSW Parliament is set out in a relevant Ministerial Handbook . The Commonwealth equivalent is mentioned later in this paper.
Most Australian jurisdictions have, for many years, had Law Reform Commissions which are often charged with responsibility for looking at particular areas of law and making recommendations for change which would be considered by Government and possibly the community prior to change.
Depending on how high profile an issue intended to be the subject of legislation is, it may or may not receive particular media and public attention.
One must not overlook the role of Departments of State in expediting, or not, the legislative process so far as concerns issues of particular relevance to particular departments.
I will, for the purposes of today’s paper, deal in some depth with the National Legal Profession reforms, as something of an example of “community” driven legislative reform. I do so because most of the readers of this paper will be lawyers to whom those reforms will be relevant (particularly because, as at the time I write this paper it is intended to commence in July 2015, and also because I have had a closer involvement than most lawyers in that reform process).
Hardly surprisingly, the speed with which a legislative proposal is navigated through the process is entirely dependent on politics and the attitude of the Government of the day, the Opposition of the day and, to an extent, the Bureaucracy.
The National Legal Profession legislation is, I believe, something about which Australia’s general population cares little at all.
A very truncated summary of the history of the National Legal Profession legislation is as follows:-
• in about 1994 the Law Council of Australia, picking up on the then general attitude of facilitating competition in the marketplace, prepared a paper entitled “blueprint for structure of Legal Profession: a National Market for Legal Services;
• in 2001, the Standing Committee of Attorneys General (SCAG) discussed the desirability of a uniform approach and directed departmental officers to create some proposals for consideration;
• in 2004, SCAG released a Model Bill intended to harmonise laws across the country, this draft was revised in 2006 and again in 2007. That model law effectively was drawn into the Legal Profession Acts of most states;
• in February 2009 the Council of Australian Governments (COAG) added the idea of National legal profession reform to its microeconomic and regulatory reform agenda;
• in April 2009 COAG agreed:-
to draft relevant legislation within a year;
to set up a task force to pursue the proposals; and
to create a consultative group to aid the task force.
• in April 2010, COAG authorises release of a draft bill and draft rules and other related documents for public consultation and comment;
• in December 2010 revised draft was issued;
• in February 2011 COAG determined to finalise the proposals by May 2011 (though Western Australia and South Australia had dropped out by that time);
• after some further delay New South Wales and Victoria took up the pursuit of the concept which has led, most recently, to the Victorian government passing the relevant Act and national Rules which are also adopted in New South Wales;
• so far as I’m aware as late as May 2015 amendments to legislation and rules were still being made by those of the commencement the following will be the source of the new legal profession : –
Legal Profession Uniform Law (the Victorian Act)
Legal Profession Uniform Law Application Act (New South Wales Act) 2014
Level Profession Uniform Law Application Legislation Amendment Bill 2015
Legal Profession Uniform General Rules 2015
Legal Profession Uniform Admission Rules 2015
Legal Profession Uniform Australian Solicitors Conduct Rules 2015
Legal Profession Uniform Legal Practice (Solicitors) Rules 2015
Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015
Given that long, sorry (and tortured) history (and I do not apologise for not boring readers of this paper with every detail of all that has gone on) the history of the National legal Profession legislation is, in my view, a good example of how what can, as a good and simple concept, a National Legal Profession, the significantly frustrated and delayed by the legislative process.
Whether the saga of the National Legal Profession legislation is perhaps an example of the old maxim “too many cooks spoil the broth” , I leave to readers of this paper to decide.
• Government Public Bills
– Generally through Parliamentary Counsel and relevant Minister
• Brief to Parliamentary Counsel
– Community Consultation re exposure drafts
– Question to Relevant Minister
• Private Member Bills
– Reflecting needs, wants of member, electoral, community
– Again usually drafted by Parliamentary
• Bicameral Systems – Queensland aside
• Public Bills/Acts
• Private Bills/Acts – very rare
• Cognate Bills – grouping of laws related by subject
• Money Bills
Working with Parliamentary Counsel
The role of Parliamentary Counsel in the legislative drafting process is, of course, of prime importance.
NSW Parliamentary Counsel (NSWPC) is now an Executive Agency, rather than part of the Attorney General Justice Department as had historically been the case.
In addition to its role in the legislative process NSWPC also maintains the legislative database and makes it available publicly. Its role, as particularly relevant to the legislative process is, is extracted from its website as follows: –
• drafting new legislation (including Acts, Regulations and environmental planning instruments)
• drafting amendments to Bills during the Parliamentary process
• drafting explanatory notes to new laws
• providing advice and assistance to government concerning new legislation and legislative policy
• providing a legislative drafting service for non-Government Members of Parliament (under arrangements approved by the Government). See Manual for the Drafting of Non-Government Legislation
Providing advice and information
• providing legal advice and administrative assistance on legislative drafting and procedure
• producing an extensive range of legislation information publications
• researching legislative drafting and related matters
• compiling, maintaining and developing a comprehensive database of NSW legislation.
The Commonwealth Office of Parliamentary Counsel (OPC) expresses it slightly differently:-
“Services and training
The Office of Parliamentary Counsel (OPC) provides timely, high quality legislative drafting and publication services. These include drafting and advisory services for Commonwealth Bills, legislative instruments and other instruments as well as comprehensive public access to Commonwealth legislation, particularly through ComLaw.
OPC provides the following services to government agencies on a fee-for-service basis:
• drafting advice (including commenting on, or clearance of, instruments);
• instrument design (including template development);
• drafting training;
• instrument preparation (including formatting instruments for remaking and compiling amended legislative instruments);
• instrument editorial services;
• research services (including the development of reports from ComLaw).
Features of our specialist instrument drafting services
Legislation development and drafting expertise OPC instrument drafters are highly trained lawyers, many with a background in policy development. OPC drafters have expertise in providing solutions in the implementation of complex and sensitive Commonwealth policy in legislation.
Background knowledge of instrument making powers Because our drafters working on instruments work closely with our drafters working on Bills, OPC is specially positioned to provide timely, high quality instruments for Bills, new Acts, and new schemes under existing Acts.
Plain English and best drafting practice OPC strives to ensure that your instrument:
• meets your policy objectives in a legally effective way; and
• meets best practice standards for Commonwealth legislation; and
• is accurate and as easy to understand as possible.
We use plain English drafting techniques to present ideas simply and effectively.
Quality assurance An instrument is only ready to be made after rigorous quality-assurance checks by drafters and editors. These checks ensure that all instruments drafted by OPC are of the highest possible standard.”
It should be noted that Parliamentary Counsel has to certify to the Government that particular proposed legislation is within powers.
If a proposed law is a Government bill then following Cabinet approval to the legislative proposal Parliamentary Counsel is to be informed and properly briefed to enable it to draft the relevant legislation.
One cannot underestimate the importance of consistency in legislative drafting style. Use of Parliamentary Counsel is perhaps the best way of facilitating that.
Slightly different procedures apply at NSWPC if the proposed Bill is a non-Government Bill. They are available on the NSWPOC website .
The reality of both amending and/or introducing new legislation involves processes which may be fraught with difficulty, delay and frustration. The above discussion of the National Legal Profession legislation is an example of that.
The actual legislative process is the flow through Parliament of ‘a bill’. The simplest and most common understanding of the process is one where a bill (or draft Act) is introduced to one House of Parliament, passed by that House and agreed to by the other and given the Royal Assent by the Governor or Governor-General.
However, you will observe from the following diagram, that this process provides much and more scope for delay and frustration.
But before a ‘bill’ is able to seek its passage through the parliamentary process it must undergo some “extra-parliamentary process”. By that I mean that any Commonwealth legislative proposal must be lodged with the Office of Parliamentary Counsel by the Sponsor Department. The OPC is responsible amongst other administrative duties to determine/ensure that the legislative proposal has been sought within the powers. Once approved and settled by the Counsel – it can then be introduced as a ‘bill’.
Commonwealth Bills generally seek passage through the following stages:
1. initiation (notice of intention),
2. First reading (possible referral to the Main Committee for Second reading and consideration in detail stages),
3. Second reading,
4. announcement of any message from the GG recommending appropriation,
5. Report from standing or select committee (if bill referred),
6. Consideration in detail,
7. Report from Main Committee and adoption (for bills referred to Main Committee),
8. Reconsideration, and we have only just reached the Third reading, followed by a Transmission to the upper house for concurrence;
9. then Transmission or return of bill from the Upper house with or without amendment or request; and
10. finally presentation for Royal Assent.
Interestingly, the terminology ‘reading’ is of ancient origin, when the Clerk of a house of Parliament would quite literally read the entire Bill out loud at each and every stage of the deliberations (primarily because many MPs could not read).
Fortunately, nowadays the only part of this tradition that has been retained is the reading out loud of the title of the Bill.
A Bill, except to do with money, can be introduced in either House (although most commonly in the lower house).
The history of the political tensions to do with Money Bills goes back centuries, particularly to the days when the King or Queen, rather than the elected politicians, comprise the Government.
Time does not allow us to discuss today in any detail the political and constitutional history of dealing with Money Bills.
Suffice it to say that as elected governments not infrequently failed to have control over both Upper and Lower Houses of Parliament tensions arose, though there had been, as I understand my constitutional history, something of an understanding of a convention against the Upper Houses of Parliaments rejecting money provisions of the lower houses.
In the United Kingdom, in the early 20th century, politics in respect of home rule and money bills raised constitutional crisis. The crisis first arose late in the reign of King Edward VII and was only resolved in the early part of the reign of King George V.
The government of the day had been having significant difficulty in passing what was referred to as the “People’s budget”. Discussions had been held with the King Edward VII about creating more peers to allow the Government to have the legislation pass the House of Lords, but the King died in May 1910, before the matter was resolved.
However, the issue raised its ugly head again within months, that same year, very early in the reign of King George V.
Again, the issue of inflating the number of peers in the House of Lords to facilitate passing of the legislation was discussed upon high.
In December that year there was a further election and it had become known that King George V was prepared to increase the number of peers if the government’s budget was not passed . Following the December 1910 election the House of Lords, then aware of the prepare of the King to increase the number of peers, passed the money bill. This led to the UK Parliament Act 1911 which effectively and with little reservation, the power of the House of Lords in respect of money bills.
That is something of the constitutional history as to why the New South Wales Parliament and the Australian Commonwealth Parliament both have particular provisions dealing with money bills.
Due to the significance of money/appropriation Commonwealth Bills and the relevant legislation money Bills MUST be introduced in the House of Representatives and the Senate is restricted to either passing or rejecting them – no amending. The importance of money Bills has also required that the law adapt and provide for such Bills.
At State Level money bills are only to be dealt with in the Lower House and further in the Federal Parliament -there are provisions relating to a joint sitting seeking resolution of any issues preventing the passing of money bills. Let us not forget the pandemonium that erupted and the 1975 dismissal which ensued.
– Notice of intention : usually prior setting day
– First Reading Minutes: reads title and outlines intent. Clerk read stat bills and the second reading speech usually of few days delay
– Second Reading: Makes comments “read a second time” if not defeated and annotated in LAQ Committee LC and referral to call
Law reform Miscellaneous provisions legislation
Law Reform Miscellaneous Provisions Acts are a wonderful device under which the Parliament and Government of the day can, on a semi-annual basis do legislative housekeeping and tidying up to do with minor quirky issues which have arisen which, whilst in need of remediation, may not warrant the substantive Act of their own.
A quirky piece of history I picked up along the way, when working in Government, and always think of in the context of Law Reform Miscellaneous Provisions Acts, was how about 150 years ago, a then member of the Parliamentary Counsel team had an unhappy marriage.
It was in an era where a divorce required an Act of Parliament.
Needless to say, the particular officer at Parliamentary Counsel was not in a position to cause the Government of the day to pass legislation facilitating his divorce. However, resourceful he must have been, because he chose to add the reference to his divorce into the back of a much more substantive piece of legislation being passed, with presumably very little critical perusal by Members of Parliament.
The schedule style of legislation used for Law Reform Miscellaneous Provisions Acts details in each schedule legislation being amended and how they are to be amended.
Some Quirky Examples of Hiccups in the Process.
Of course, once legislation has passed the relevant Houses of Parliament, it does not become law unless and until it is given Royal Assent by the Governor or Governor General. Normally the legislation itself will detail what the commencement date will be. That is not infrequently tied to actual Royal Assent or a proclamation date determined by Government and approved by the Governor.
The systems which apply for the passing of legislation and Royal assent were generally created over long periods of time in which it was commonly clear that one party or the other had a majority in the parliaments.
That is no longer so much the norm.
I take the opportunity to mention a situation in which I was involved with the issue of the proclamation of commencement..
Many years ago the State Government of New South Wales sold the Government Cleaning Service. At the time of the sale, the staff of the Cleaning Service were necessarily concerned for their futures and were very efficient in making representations to Parliamentarians of all political persuasions.
That led to the introduction and passing in 1993 of the Government Cleaning Service Retention Bill in, as I recall the New South Wales Upper House and given the then state of the Lower House there was some real concern as to the possibility that it would also be pushed through and passed in the Lower House where, for one reason or another, the Government of the day could not be sure of a majority to prevent passing of the Bill.
It literally reached a stage that I, as one of the then Assistant Crown Solicitors, had to begin considering whether and to what extent if the Bill managed to be passed by both Upper and Lower Houses of the Parliament, it could be open to the Government, which was then heavily involved in the sale of the Government Cleaning Service, to decline to put a passed Bill to the Executive Council/Governor for Royal Assent.
Thankfully, from my perspective at least, the issue was resolved politically within the Parliament and I did not have to advise on whether it was open to the Government to ignore the resolutions of both Upper and Lower Houses of Parliament on the point.
• Statutory Instruments
– Regulation | by law making power
– Drawn by Parliamentary Counsel
– Published in Gazelle
– Tabled before Parliament and 15 days in which a Member can move to disallow
Given the way Government works on the problems of navigating much legislation through the various houses of Parliament, many years ago the Parliaments and Governments adopted the idea of subsidiary legislation for lesser matters, commonly to do with the actual implementation and operational detail of laws and ideas, the broad policy framework for which were reflected in a substantive Act of Parliament.
Under our system of Parliamentary Democracy, Government comprises three parts – the Parliaments, the Executive and the Courts. That necessarily involves tension from time to time and can sometimes be seen when statutory instruments implemented by the Executive are commonly reviewed by or, more correctly, subject to disallowance by Parliament
This other player in the game is ‘subsidiary legislation’ referred to interchangeably as delegated legislation, subordinate legislation or legislative instruments. That is, laws made by the Executive without parliamentary enactment.
I hear your disapproving sighs, it is as you are all thinking a violation of the separation of powers and the Commonwealth’s entrenched principle that all laws should be made by the elected representatives of the PEOPLE.
However, the High Court in Baxter v Ah Way 1910 rationalised that “the legislature would be an ineffective instrument for making laws if it only dealt with the circumstances existing at the date of the measure. The aim of all legislatures is to project their minds as far as possible into the future, and to provide in terms as general as possible for all contingencies likely to arise in the application of the law. But it is not possible to provide specifically for all cases…” That is, while the Parliament deals directly with general principles, the Executive attends to matters of administration and detail.
Delegated legislation can be extremely complex:
I. Take the The Lord’s Prayer contains 56 words;
II. the Ten Commandments – 197 words;
III. the American Declaration of Independence – 304 words; but
IV. the European Community Directive on the import of caramel and caramel products comprises 26 911 words.
To help us all sleep at night, this system of subsidiary legislation has been developed with the ability of either Houses of Parliament to disallow such laws.
As the House of Representatives is effectively controlled by the Government, it has, according to our research, never (to date) raised a finger (metaphorically speaking) against the introduction of legislative instruments.
On the other hand, the Senate Scrutiny of Bills Committee plays a vital role in scrutinising each regulation and ordinance to ensure that they are in accordance with the principal act and that they do not trespass unduly on personal rights and liberties.
With the assistance of an independent legal adviser, negotiations are made with the responsible minister re: any necessary changes (as the Senate has no power to amend or disallow parts of an instrument, this is a significant step). However, if negotiations are viewed as unsuccessful (or unduly protracted), notice of a motion of disallowance is given in the Senate.
Once the legislative instrument is ‘tabled’, the Legislative Instruments Act 2003 provides under section 42(1) that within 15 days of sitting, the House can disallow/veto this instrument.
That is, once the legislative instrument is ‘tabled’, the Legislative Instruments Act 2003 provides under section 42(1) that within 15 days of sitting, the House (which the instrument has been introduced) can disallow/veto this instrument.
There is some debate as to whether it is necessary for an instrument to be ‘tabled’ before disallowance can be initiated – and an instance of a notice of motion to disallow being given, withdrawn and then revived four days after the instrument was officially tabled. Suffice to say, current authority on the issue requires any notice of disallowance be delayed until after the instrument has been tabled.
Some differences can be seen in the way that delegated legislation is handled in the six States. Like The Commonwealth, all States have Parliamentary Committees, however Queensland and South Australia are without independent legal advice (and I would imagine that there is some consensus here of the importance of independent legal advice, particularly with real issues of political bias).
Victoria and New South Wales have made it a requirement for an ‘impact statement’ to accompany any proposed instrument. Further, Victoria has made it a further requirement that a new regulation is announced in advance, and interested parties be consulted.
Similarly once laid down before parliament, there is a specified time frame (in the States normally 14 days (where the Cth is 15 days) to disallow an instrument. Significantly, none of the states (except Tasmania) prevents the government from merely re-enacting delegated legislation which has been disallowed.
Gregory Ross 9 June 2015
Eakin McCaffery Cox
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PO Box Q1196 QVB NSW 1230; DX 1069 Sydney
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