Legislation Handbook

The purpose of this handbook and guidance material is to provide a description of the procedures involved in making Commonwealth Acts, especially the procedures coordinated by PM&C.

Chapter 1: Introduction

Purpose of the Handbook

1.1 This handbook describes the procedures involved in making a law. 

1.2 Law-making is a complex and often lengthy process and requires a number of steps to be completed either simultaneously or sequentially. This chapter provides a short overview of the key matters that departments are required to take into account when formulating legislative proposals. The following chapters outline the steps necessary to get an Act of Parliament onto the statute book.

When to develop legislation

1.3 Legislation will not always be necessary or desirable. In advising Ministers, Departments are encouraged to give careful consideration as to the best means of implementing or advancing government policy. Depending on the circumstances, this may be through primary or subordinate legislation but it may also be the case that administrative action is a more appropriate means of implementing or advancing a particular policy position.

1.4 The development of policy can be a long and complex process involving consultation with diverse and varied stakeholders. Generally speaking, the detail of a policy should be settled, its merits thoroughly assessed and all necessary approvals sought and obtained before legislation is drafted. This means that the drafting of legislation should generally not occur while a policy is in the early stages of development – rather, to the extent possible, drafting instructions should reflect the substance of an already fully developed policy1.

Consultation when developing legislation

1.5 Consultation on proposed legislation must occur with relevant parties within government (see Drafting Direction No. 4.2: Referral of drafts to agencies prepared by the Office of Parliamentary Counsel (OPC)) and, where appropriate, with independent experts and interested parties outside government (see limitations at paragraph 1.9). Consultation with OPC must also occur at an early stage to ensure that policy can be reflected in legislation.

1.6 The responsibility for undertaking consultation rests mainly with the minister and department sponsoring the legislation (referred to throughout the handbook as the department). In considering options for consultation, departments may wish to keep in mind the role that parliamentary committees play in the legislation process, and the widespread consultation that committee consideration may entail.

1.7 The timing and extent of consultation may vary and are matters for the judgement of the minister, or department, or consideration by the Cabinet. In some cases, it may be desirable for consultation to take place on general principles at the time policy issues are being developed (see paragraph 3.9 and paragraphs 3.16 to 3.17); in other cases, consultation on the draft legislation may be more appropriate (see paragraphs 6.11 to 6.14 regarding confidentiality and advance disclosure/exposure of draft bills).

1.8 There may be cases where the urgency attached to the legislation will prevent widespread consultation. As a minimum, consultation must occur in line with Drafting Direction 4.2: Referral of drafts to agencies prepared by OPC (see Attachment B to that Direction). In addition, where the proposed legislation will amend laws that are another minister’s responsibility, then the responsible minister’s portfolio must be consulted and written agreement obtained (see paragraph 6.8).

1.9 It would not normally be appropriate for consultation outside government to occur for proposed legislation:

  1. which would alter fees or benefits only in accordance with the Budget;
  2. which would contain only minor machinery provisions that would not fundamentally alter existing legislative arrangements; or
  3. for which consultation would give a person or organisation consulted an advantage over others not consulted.

1.10 Consultation will extend the lead time required for preparation of a bill for introduction. This must be taken into account for planning purposes to ensure that consultation does not unduly reduce the time allowed for drafting a bill.

Primary or subordinate legislation?

1.11 While it is not possible or desirable to provide a prescriptive list of matters suitable for inclusion in primary legislation and matters suitable for inclusion in subordinate legislation, the following are examples of matters generally implemented only through Acts of Parliament:

  1. appropriations of money;
  2. significant questions of policy including significant new policy or fundamental changes to existing policy;
  3. rules which have a significant impact on human rights and personal liberties;
  4. provisions imposing obligations on individuals or organisations to undertake certain activities (e.g. to provide information or submit documentation, noting that the detail of the information or documentation required may be included in subordinate legislation) or desist from activities (e.g. to prohibit an activity and impose penalties or sanctions for engaging in an activity);
  5. provisions creating offences or civil penalties which impose significant criminal penalties (imprisonment or fines equal to more than 50 penalty units for individuals or more than 250 penalty units for corporations)2;
  6. provisions imposing administrative penalties for regulatory offences (administrative penalties are imposed automatically by force of law instead of being imposed by a court);
  7. provisions imposing taxes or levies;
  8. provisions imposing high or substantial fees and charges;
  9. provisions authorising the borrowing of funds;
  10. procedural matters that go to the essence of the legislative scheme;
  11. provisions creating statutory entities (noting that some details of the operations of a statutory entity would be appropriately dealt with in subordinate legislation); and
  12. amendments to Acts of Parliament (noting that the continued inclusion of a measure in an Act needs to be examined against these criteria when an amendment is required).

1.12 However, the decision as to whether a particular matter could be included in primary or subordinate legislation may well be influenced by the nature of the subject matter and a variety of other factors. Departments are required to consult OPC about the appropriateness of including particular matters in primary or subordinate legislation. (See also paragraphs 5.66 to 5.67.)

1.13 The Senate Standing Committee for the Scrutiny of Bills, the Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Delegated Legislation each has a role in scrutinising legislation (see also the Parliament House – Committees website for further information on the work of these committees).

Who has responsibility for what legislation?

1.14 The Governor‑General, on the advice of the Prime Minister, makes an Administrative Arrangements Order (AAO) under section 61 of the Constitution to assign responsibilities to ministers (references to ministers throughout the handbook could include assistant ministers or parliamentary secretaries) and departments.

1.15 The AAO sets out the legislation administered by ministers who are appointed to administer a department, and the matters to be dealt with by each department. Where a portfolio has more than one minister, each of those ministers is formally able to administer the legislation associated with the department (see Acts Interpretation Act 1901, sections 19 and 19A).

1.16 In practice, each minister in a portfolio will have discrete areas of policy and legislative responsibility.

Bills affecting other ministers’ legislation or portfolio interests

1.17 Where the measures proposed in a bill may affect the responsibilities of another minister, or affect their portfolio interests, that minister must be consulted in writing and give agreement to the proposal unless this has already been agreed by the Cabinet. (See paragraphs 3.15 to 3.19 for further details on consultation.)

1.18 Where a bill would amend legislation that is the responsibility of another minister, the department which administers the legislation must be consulted on the text of the proposed amendments. Approval must be in writing before the bill can be introduced in the Parliament (see paragraph 6.8).

1.19 The Minister for Finance must be consulted on any bill containing a special appropriation or special account.

Reducing the complexity of legislation

1.20 Complex legislation can create uncertainties about the law and impose unnecessary burdens on businesses, community organisations and individuals. It can also restrict the ability of those affected by the law to understand their legal rights and obligations. Further information on plain language and reducing complexity is available on the AGD and OPC websites.

1.21 The following principles are to be applied by policy makers, instructing agencies and drafters when developing legislation:

  1. consider all implementation options—don’t legislate if you don’t have to;
  2. when developing policy, reducing complexity and unnecessary regulation is a core consideration;
  3. laws need be no more complex than is necessary to give effect to policy;
  4. those affected by the legislation are able to understand how the law applies to them; and
  5. continual assessment of the clarity of a proposed law is desirable—from policy development through to consideration by the Parliament (for Acts) or consideration by the rule‑maker (for legislative instruments).

Other resources

1.22 A range of other resource materials are available to assist departments when they are developing policies and legislative proposals—for example:

  1. Cabinet procedures are set out in the Cabinet Handbook;
  2. procedures for making subordinate legislation, such as regulations, are set out in the Federal Executive Council Handbook;
  3. an electronic database of all Commonwealth primary and subordinate legislation, as well as other ancillary documents and information, are available on the Federal Register of Legislation;
  4. all bills, subsequent prints of bills, their associated documents, and other bill‑related information can be found on bill homepages on the Parliament House website;
  5. Instructor Guidance Notes, Legislation Quick Reference Guide, Drafting Directions, the Instruments Handbook and other guidance materials prepared by the Office of Parliamentary Counsel are available on the OPC website;
  6. legislative design and scrutiny materials on criminal law, administrative law, privacy, human rights and other legal policy matters for which AGD is responsible are available on AGD’s website; and
  7. the Australian Government Guide to Policy Impact Analysis provides the context for regulations and guidance on Australian Government Impact Analysis.

Footnotes

  1. 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. ↩
  2. A penalty unit is defined in section 4AA of the Crimes Act 1914; at November 2024, a penalty unit was equivalent to $330. ↩