3.1 As a general principal, a policy should have all necessary approvals in place before drafting instructions are issued.³ This is to ensure that drafting resources are being used as efficiently as possible. Where drafters are asked to draft a bill for a policy that is subject to change, this may result in duplicated effort for both drafters and instructing departments. As a bill articulates policy, the policy in question should be well understood by the instructing department before drafting instructions are issued and the drafting commences.

Levels of approval

3.2 Every measure included in a bill must have policy approval at the appropriate level, 
as follows:

3.3 For measures with minor policy significance, the agreement of other ministers will be necessary when the measures affect their portfolio interests. It is expected that other ministers’ agreements be obtained before the Prime Minister’s approval is sought (see paragraph 3.15).

3.4 Policy approvals lapse with a change of government. Policy approval will need to be sought at the appropriate level (as noted above) on the commencement of a new government.

The beginning of the policy approval process

3.5 As soon as a department becomes aware of a need for action that may involve legislation, it must:

1. begin work on settling policy details, consulting other departments and agencies as necessary;
2. confirm that legislation is necessary to achieve the policy objectives;
3. where appropriate, discuss with OPC how to avoid unduly complex legislation and whether there might be alternative approaches which would permit simpler legislation (see also paragraphs 5.16 to 5.17); and
4. consult the OIA at an early stage to determine if an IA is required (see paragraphs 2.12 to 2.13).

3.6 If legislation is required, the minister must seek policy approval for measures in the proposed bill. Seeking policy approval will involve preparing a Cabinet submission or a letter requesting the Prime Minister’s approval (in accordance with paragraph 3.2).

1. Where an IA has been prepared as part of the policy development process it is to be included in the submission or with the letter and must:
   1. include an assessment of the costs and benefits of alternative means of addressing the policy objective (see paragraphs 2.12 to 2.13); and
   2. be tabled as part of the explanatory memorandum (see paragraphs 7.15 to 7.16).
2. In most cases, it is necessary for further policy approvals (generally minor in nature) to be sought during the drafting process as policy issues arise as drafting proceeds. It is the responsibility of the instructing officer to identify, during the course of the drafting of a bill, whether all the measures in the bill have policy approval. Copies of letters seeking and giving the Prime Minister’s approval, and other ministers’ agreement, to measures with minor policy significance must be provided to OPC. OPC provides advice to the Legislation Minister on the authorities for the bill, and will advise the instructing officer whether further policy approval is required.
3. The Legislation Minister will not approve a bill for introduction into the Parliament unless there is clear authority for all matters contained in the bill.

Cabinet approval

3.7 The Cabinet will consider significant policy proposals involving legislation, including any proposal which:

1. represents a significant or strategically important policy initiative or commitment;
2. involves new expenditure or will have a significant impact on revenue;
3. is sensitive or controversial (whether from the perspective of the Parliament, interest groups or Commonwealth–state relations); or
4. has significant implications for other portfolios or is not agreed to by all interested portfolios (see also the Cabinet Handbook).

3.8 If the instructing officer is in doubt about whether Cabinet consideration will be required, they may consult the relevant policy area in PM&C.

3.9 Some points to note regarding Cabinet consideration of matters requiring legislation are listed below. The Cabinet Handbook gives detailed instructions about Cabinet procedures and the preparation of Cabinet documents.

1. Explain need for legislation. Any Cabinet submission or memorandum recommending a proposal requiring legislation must indicate whether there is any way to implement the relevant policy without legislation and, if there is, why the legislative proposal is to be preferred. Consideration of this issue is to occur early so that the draft circulated for coordination comments may include a considered statement on the need for legislation.
2. Provide a legislation certificate. A submission or memorandum proposing legislation is to include advice from the Attorney‑General’s Department stating whether the Australian Government Solicitor (AGS) considers that legislation is necessary.
3. Ensure constitutional risk has been assessed. All legislation proposals are to indicate the constitutional basis of the legislation and that any constitutional risks have been identified and assessed. Instructors must seek guidance from the relevant area in AGD or AGS when preparing a constitutional risk assessment.
4. Prepare an IA, where one is required, consistent with the IA guidance for any new regulation.
5. Ensure that all measures requiring Cabinet authority are spelled out clearly. The wording of Cabinet minutes is often based on the wording of the recommendations contained in Cabinet submissions. Care is to be taken when drafting Cabinet submission recommendations to ensure that they are not excessively detailed, do not use technical terms with unduly narrow meanings, and are expressed in a way that can accommodate developments during the drafting process. On the other hand, if the Cabinet minute is expressed in terms that are too general, the authority for particular matters may be unclear. In such a situation, the minister may need to write to the Prime Minister seeking clarification of the minute, or approval if authority for a matter is lacking. Even when Cabinet authority has been obtained, it is also often necessary to secure the Prime Minister’s approval in clarifying minor matters or to cover changes in policy arising during the drafting process.
6. Do not seek the Cabinet’s endorsement of the legislative approach, form or wording of proposed legislation. A submission or memorandum is to focus on the policy to be implemented but not prescribe the way in which policy details are to be legislated. It will be the role of the drafter, in consultation with the instructing officer, to advise on the exact form and wording of the legislation as it is being drafted.
7. Do not attach drafting instructions or draft legislation to a Cabinet submission or memorandum unless the Cabinet or a Cabinet committee specifically requires the instructions. If possible, preliminary instructions are to be circulated to departments and authorities consulted in the preparation of the submission or memorandum to help them understand the nature of the proposal. Drafting will normally only commence following Cabinet consideration.
8. Do not ask the Cabinet to give priority to the legislation or fix a date for its introduction. The PBC decides which bills to include on the legislation program and assigns a drafting priority to each of them; any timing imperatives must be raised in the bids ministers submit for consideration by the PBC (see Chapter 2). Cabinet submissions or memoranda are not to pre-empt the role of the PBC by seeking from the Cabinet any specific priority for proposed legislation.
9. Allow sufficient time for drafting and passage of legislation by the Parliament if asking the Cabinet to endorse a date of effect. In proposing dates of effect, regard must be had to the policy that bills are generally introduced in one sitting period for debate in the next sitting period, and to the fact that the dynamics of parliamentary proceedings allow no certainty about timing, unless passage has been negotiated with all independent or non‑government members or senators. Any proposal for a retrospective date of effect, especially a proposal adversely affecting rights or imposing liabilities, must be justified in the submission. (Any such legislative measures would be subject to scrutiny by the Senate Standing Committee for the Scrutiny of Bills—see paragraphs 5.20 and 7.27 to 7.29.) If necessary, sufficient time will need to be allowed for the draft bill to be exposed, for comments to be reviewed and instructions issued, and for OPC to draft changes to the exposure draft.
10. Consultation. Departments must undertake their consultations with departments or areas of departments mentioned in OPC’s Drafting Direction No. 4.2 (see reference at paragraph 1.5).
11. Release of an exposure draft. If a minister wishes to release an exposure draft of the bill prior to introduction, the minister can seek the Cabinet’s agreement. Separate to the Cabinet process, ministers can also seek the Prime Minister’s agreement to release exposure draft legislation. The requirements regarding public announcement of legislation in advance of introduction are set out at paragraphs 3.28 to 3.31.

Minor policy approval

How and when to seek minor policy approval

3.10 If a minister believes that a proposal involving legislation does not warrant consideration by the Cabinet, they must write seeking the Prime Minister’s policy approval. The minister must also write to the Prime Minister if it is proposed to vary the implementation of a Cabinet minute in a manner which does not warrant reconsideration by the Cabinet.

3.11 Amendments which are consistent with the intention of existing policy (e.g. correcting a technical defect to ensure that legislation operates as intended) can be approved by the responsible minister (see paragraph 3.25). Amendments of a minor technical nature (e.g. correcting typographical errors) can be approved by the First Parliamentary Counsel (see paragraph 3.26).

3.12 When seeking minor policy approval from the Prime Minister, the minister’s letter must:

1. explain need for legislation. Advice on whether there is any way to implement the relevant policy without legislation and, if there is, why the legislative proposal is to be preferred.
2. include an IA. Any legislation proposal which has a regulatory impact on businesses, community organisations or individuals, unless the impact is of a minor or machinery nature and does not substantially alter existing arrangements, must be accompanied by an IA (see paragraphs 2.12 to 2.13).
3. ensure that all measures requiring the Prime Minister’s authority are spelled out clearly. Focus on the policy to be implemented but do not prescribe the way in which policy details are to be legislated. It will be the role of OPC, in consultation with the instructing officer, to advise on the exact form and wording of the legislation as it is being drafted.
4. be mindful that the Prime Minister does not normally give priority to the legislation or fix a date for its introduction. The PBC decides which bills to include on the legislation program and assigns a drafting priority to each of them; any timing imperatives are to be raised in the bids ministers submit for consideration by the PBC (see Chapter 2 Developing the Legislation Program).
5. detail the consultation undertaken. Departments must undertake consultations in accordance with OPC’s Drafting Direction No. 4.2.

3.13 If not previously sought, minor policy approval can be sought at the time the minister submits a bid to have the legislation included on the program. If it becomes apparent during the drafting of a bill that further approval is required for minor policy matters, the minister will need to write to the Prime Minister as soon as possible (see paragraph 3.10). Replies to requests for minor policy approval are signed by the Prime Minister, or the Legislation Minister on behalf of the Prime Minister.

3.14 Departments must consult OPC on the terms of draft letters to the Prime Minister seeking minor policy approval to ensure that policy approvals match the draft provisions of a bill and that nothing is overlooked.

Agreement of other ministers

3.15 Minor policy matters, not requiring Cabinet consideration, which affect other ministers’ portfolio legislation or interests require the agreement of the responsible ministers, preferably in writing prior to requesting the Prime Minister’s approval. 

Consultation seeking agreement on policy aspects

3.16 It may be necessary for the minister’s department to consult other departments and agencies, in line with the consultation requirements outlined at paragraphs 1.5 to 1.10.

3.17 The preferred approach is for the letter to the Prime Minister seeking policy approval to include advice on the consultation that has taken place and whether or not agreement has been reached.

3.18 This enables the Prime Minister or the Legislation Minister to take account of all relevant views when considering the request for minor policy approval. The absence of this advice could delay the response to the request for minor policy approval. However, approval may be given subject to the written agreement of other ministers, but again this could delay the finalisation of the legislation.

3.19 If there is disagreement between ministers regarding a proposal, or if for any other reason the proposal warrants collective consideration, the Prime Minister may require the matter to be submitted to the Cabinet.

Approval of the text of amendments by other ministers

3.20 Where a bill amends legislation that is the responsibility of another minister as a consequence of a policy decision, the department which administers the legislation must be consulted on the text of the proposed amendments. The onus is on the administering department to determine whether the minister must approve the text of the relevant amendment(s) or if departmental approval is sufficient. In either case, approval must be in writing before the bill can be introduced in the Parliament. OPC can provide advice to departments on amendments for which ministerial agreement is desirable.

Information to be included in requests for minor policy approval

3.21 The following list is designed to assist departments in preparing minor policy request letters to the Prime Minister from their ministers. Each letter must provide a clear and self‑contained description of the proposal and must be appropriately classified if it contains sensitive or confidential material. An example letter can be found at Appendix E2 to this Handbook. Points to be covered in the letter (if applicable) include the following:

1. the background to the proposal—including any previous Cabinet consideration and the relevant Cabinet minute number(s);
2. the nature of the proposal, including:
   1. the objective;
   2. the title of any Act(s) to be amended;
   3. the legislative measures proposed; and
   4. justification for any proposed retrospective dates of effect and an explanation of any adverse impact;
3. the reason why the minister regards Cabinet consideration as unnecessary;
4. the outcome of any consultation with other ministers or agencies;
5. the OIA’s advice as to the IA requirements (where an IA is required, it can be attached);
6. the Treasurer’s approval for any proposed exceptions to the Competition and Consumer Act 2010 or to the Competition Code;
7. any timing considerations, including deadlines for passage;
8. the way in which the proposal is to be effected—for example, inclusion in the XYZ Bill already on the approved legislation program; addition of a new bill to the program; inclusion of a bill on the program for the next sitting period, noting that:
   1. a request for a variation to the program may be required and if so must accompany the request for minor policy approval (see paragraphs 2.23 to 2.34);
   2. if inclusion of the proposal in a portfolio bill is envisaged, OPC must be consulted before the letter is sent; and
9. the name and telephone number of a departmental contact officer and of the responsible Senior Executive Service officer.

3.22 Before finalising the letter from a minister to the Prime Minister, departments may consider expediting approval by giving advance notice to the Legislation Section and discussing the proposal with the relevant policy area in PM&C. These steps are essential if minor policy approval is being sought urgently. Sufficient time also needs to be allowed for consultation.

3.23 Departments are requested to send to the Legislation Section an advance copy of the minister’s letter to the Prime Minister requesting minor policy approval. A copy of the signed letter is to be provided to the Legislation Section as soon as possible. The Legislation Section cannot submit a proposed reply for signature until it has received a copy of the letter signed by the minister.

Expiry of policy authority

3.24 Once a bill is introduced, the policy authority for the measures in the bill is generally regarded as having expired (also referred to as ‘spent authority’). Further policy approval is required for any later changes to the bill, whether through government amendments or revision before reintroduction, even if those later changes would have been covered by the original authority. (See also OPC’s Instructor Guidance Note on prioritisation and policy authority for Bills). The only exceptions are changes or amendments to:

1. correct drafting or other errors that, if not addressed, would mean the bill as introduced would not implement the approved policy; and
2. add provisions implementing policy covered in the original policy authority but not addressed in the original bill.

Ministerial approval of minor technical amendments

3.25If the proposal is consistent with the intention of the existing policy and is essentially a technical or drafting amendment to remedy errors or defects in existing legislation, the minister is able to approve the proposed legislation changes without seeking approval from the Cabinet or the Prime Minister. OPC must be consulted about whether the proposal constitutes a technical or minor policy matter. Evidence of the minister’s specific approval of the technical amendments must be provided to the drafter.

First Parliamentary Counsel approval

3.26The PBC has agreed that the First Parliamentary Counsel can approve technical amendments of the kind that would be suitable for inclusion in a Statute Law Revision Bill. This would include corrections of typographical errors such as incorrect spelling, incorrect numbering of paragraphs, incorrect references to sections or titles of other Acts and updating (including modernisation of style). The First Parliamentary Counsel can approve the repeal of spent provisions when the repeal is accompanied by amendments which render the provisions ‘spent’, or if recent amendments were made and the need to repeal the spent provision was overlooked at the time.

Approval of independent or non-government amendments

3.27 Ministers must seek the Prime Minister’s agreement to accept proposed independent or non‑government amendments as the amendments alter the Government’s agreed policy position as reflected in the bill (unlike government amendments, these amendments do not go through the legislation approval process). Ministers should make independent or non-government members or senators aware of this requirement when discussing proposed amendments to bills. Amendments, both government and independent or non‑government, may be moved on the floor of the chamber during debate, and urgent policy authority will be required. Departments must contact the Legislation Section in the first instance. In exceptional circumstances, ministers may need to deal directly with the Prime Minister, and other ministers, as appropriate and as time permits. In this circumstance, it is important that departments keep the Legislation Section informed of developments.

Announcement of legislation in advance of introduction

3.28 The practice of announcing an intention to introduce legislation to operate with effect from the date of the announcement is to be adopted only where there is some special justification. Media releases announcing legislation that is to operate with immediate effect are to:

1. indicate the essential features of the proposed legislation;
2. commit the Government to introduction of the legislation as soon as possible, consistent with the Government’s legislation priorities; and
3. be approved by the Cabinet (as attachment to the relevant submission) or by the Prime Minister and other ministers concerned.

3.29 Once a media release announcing amendments to the taxation law has been issued, Resolutions Expressing Opinions of the Senate No. 44 requires introduction of the bill within six months of the announcement of the measure.

3.30 The essential features of the legislation must not be announced until the policy development process is well advanced and policy approval has been obtained in the event the Government wishes to refine the proposed legislative scheme.

3.31 The introduction of legislation should only be announced with the approval of the Cabinet or the Prime Minister. Any announcement of forthcoming legislation must not specify when that legislation will be introduced. Media releases or Ministerial statements are only to indicate that a bill will be introduced as soon as possible, consistent with the Government’s legislation priorities.

Footnotes

3. There will be exceptions to this general principle. For example, Cabinet may agree that the Government will consult on an exposure draft, with policy to be refined after consultation, or if is necessary or desirable to consult on multiple drafting options reflecting different policy positions.Return to footnote 3↩