Legislation Handbook and guidance material

Executive Summary

The Legislation Handbook (the handbook) provides comprehensive guidance on the requirements of the legislation process—from policy approval and drafting through to passage in the Parliament.

This is the first revision of the handbook since 2000. It incorporates a number of changes in legislative and administrative practice over recent years. The clarity and usefulness of the handbook has been improved—for example, mandatory requirements have been made clearer, with consistent language such as ‘must’ and ‘required to’. In preparing this updated edition, the Department of the Prime Minister and Cabinet (PM&C) has consulted the Attorney‑General’s Department, the Office of Parliamentary Counsel, the Treasury, the House of Representatives and Senate Table Offices and other relevant agencies.

In view of the complexity of the legislation process, the handbook must be comprehensive to ensure that all aspects of the process are explained. The handbook also reflects the long lead time needed to see a legislative bid to fruition, and details the various parties that are involved in ensuring a successful outcome.

This handbook is intended to comply with parliamentary procedural requirements as set out in standing orders for the House of Representatives and the Senate. It has been designed so that each chapter can stand alone or, if read in its entirety, guide the reader, step-by-step, through the legislation process.

Chapter 1 provides an introduction to the legislation process and asks departments to consider the threshold question—is legislation required? This introductory chapter also examines primary and subordinate legislation and provides examples of matters to be implemented only through Acts of Parliament. The need for consultation is also emphasised and the chapter sets out the key players in the legislation process.

Once it is determined that legislation is required, Chapter 2 provides guidance on getting a bill on the legislation programme so that departments are able to access drafting resources. The Parliamentary Business Committee of Cabinet determines the Government’s legislation programme in advance of a sitting period and accords a drafting priority to each bill.

All legislation must have full policy approval before it is introduced into the Parliament. Chapter 3 sets out the appropriate levels of policy approval (i.e. Cabinet, Prime Minister, Minister, First Parliamentary Counsel) and outlines the process for obtaining policy approval.

Chapter 4 provides options on the types of bills that are available to implement a proposal. Chapter 5 and Chapter 6 guide departments on the preparation of drafting instructions and the drafting process and outline the responsibilities of the instructor and the drafter. Departments may need to consult widely during the drafting process to ensure that all relevant matters are considered and, where necessary, formal written agreement is provided by relevant ministers.

Once drafting of the bill has commenced, departments are encouraged to focus on the presentation of the support material. Chapter 7 sets out the requirements for the explanatory memorandum and the second reading speech. These companion documents assist members of the Parliament, officials and the public to understand the objectives and detailed operation of the clauses of the bill. In light of concerns raised—particularly by Senate committees—about the general standard of explanatory memoranda, it is important that departments ensure that these documents are of a high quality in the interests of improving the transparency of the legislation process, the quality of legislation and the ability of people to read and understand the laws passed by the Parliament.

Before legislation is introduced in the Parliament, it must be approved by the minister nominated by the Prime Minister as part of the legislation approval process (LAP). The LAP ensures that policy approval has been obtained, that the legislation is consistent with policy approval and that all relevant ministers have been consulted. Chapter 8 describes this process, commencing with the lodgement of papers with the Legislation Section in PM&C.

Amendments arise when the Government decides to amend a bill before the Parliament. Government amendments require all the same approvals as a bill. This process is summarised in Chapter 9, including the requirements for supplementary support material.

Chapter 10 provides further information on the party clearance mechanism. Governments require that all government bills and amendments are subject to internal party clearance.

The next three chapters describe the parliamentary process in more detail—from the introduction of a bill (Chapter 11) through to its subsequent consideration by the House of Representatives (Chapter 12) and the Senate (Chapter 13). For a bill to become law, it must be passed in the same form by each house and assented to by the Governor-General. Broadly speaking, the process in both houses for passing a bill is the same and involves the following steps:

• giving notice of intention to present a bill;
• presentation of the bill and first reading;
• second reading—the minister tables the explanatory memorandum and moves that the bill be read a second time and either reads or incorporates the second reading speech;
• resumption of second reading debate and consideration of a bill in detail (in the House) or by the committee of the whole (in the Senate);
• in the Senate, report of the committee of the whole and adoption of that report; and
• third reading, i.e. passage by that house.

Chapters 12 and 13 also provide background on the referral of a bill to a House, Senate or joint committee. A committee has no power to amend a bill referred to it, but it may recommend amendments or that the House or the Senate agree to a bill without amendments. Bills are also examined by the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights, pursuant to their terms of reference.

Once a bill has been passed by both houses, the final stage in the legislation process is for the bill to be presented to the Governor-General for the Queen’s assent (known as Royal Assent). The Governor-General may assent to the bill in the Queen’s name, withhold assent or reserve the proposed law for the Queen’s pleasure. This process is described in further detail in Chapter 14.

While the handbook is the principal guide to developing legislation, it is important that guidance is sought in matters that remain unclear or when additional advice is required. Therefore, agencies are asked to consult their Legislation Liaison Officers, the Legislation Section of PM&C, the Parliamentary Liaison Officers, the Office of Parliamentary Counsel and officers of the Table Offices, as required, in accordance with the directions in this handbook.

List of Appendixes to the Legislation Handbook

Guides to the legislation processes

• Guide to the legislation process
• Guide to parliamentary amendments
• Guide to legislation program variations