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Last updated: August 2008
Constitutional, legal and Government framework
Preparing legislation and legislative instruments
Legislation Handbook
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The Legislation Handbook provides information about the procedures involved in preparing Commonwealth legislation, especially the procedures coordinated by the Department of the Prime Minister and Cabinet (PM&C). The handbook is intended as a guide for public servants on processes for the development and passage of new or amending legislation.
Working with the Office of Parliamentary Counsel (OPC) - A Guide for Clients
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Working with OPC - A Guide for Clients provides guidance on developing drafting instructions and working on legislative projects in general.
A Guide to Regulation
skip further information boxA Guide to Regulation outlines regulatory best practice procedures and processes for making, reviewing or amending ‘regulation’. It has been endorsed by the Australian Government, and compliance with its requirements is mandatory for all Australian Government agencies making, reviewing or amending Australian Government regulation. Similar requirements, endorsed by the Council of Australian Governments (COAG), apply to all regulations considered and made by Ministerial Councils and national standard setting bodies.
- In this context, ‘regulation’ includes any laws or other Government ‘rules’ which influence the way people behave. It is not limited to Bills (primary legislation) or delegated legislation (such as regulations). It also includes ‘quasi-regulation’ (such as codes of conduct, advisory instruments or notes) where there is a reasonable expectation by Governments of compliance.
Subject to limited exceptions, the Government has decided that preparation of a Regulation Impact Statement (RIS) is mandatory for all reviews of existing regulation, proposed new or amended regulation and proposed treaties involving regulation which will directly affect business, have a significant indirect effect on business, or restrict competition.
The RIS is a document prepared by the agency/or agencies responsible for preparing advice on a regulatory proposal following consultation with affected parties and the Office of Regulation Review. It requires an identification of a problem, clear objectives for Government and a range of feasible options. The RIS should then provide an assessment of the costs, benefits, impacts and risks of each option, followed by a consultation statement and recommendation supporting the most effective and efficient option. The RIS process must be incorporated into the assessment process used by all areas of Government responsible for making, reviewing or amending regulation.
The Office of Regulation Review, as part of the Productivity Commission, is an independent body which advises agencies whether a RIS is required and provides advice to decision makers (such as Cabinet, Ministers and boards) on the adequacy of RISs. The Office of Regulation Review also reports each year, in its annual report, on the compliance of agencies, Ministerial Councils and national standard setting bodies with RIS requirements.
Preparation of a RIS is a critical feature of regulation making processes, primarily because preparing a RIS formalises and evidences the steps that should be taken in developing regulatory policy advice. Determining whether proposed regulation meets the dual goals of 'effectiveness' and 'efficiency' requires a structured cost-benefit approach to policy development.
On 12 October 2005, the Prime Minister and Treasurer issued a joint press release announcing that it has put in place arrangements that will involve a more rigorous use of cost-benefit analysis within government.
Legislative Instruments Act
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The Legislative Instruments Act 2003 establishes a comprehensive regime for the registration, tabling, scrutiny and sunsetting of Commonwealth legislative instruments. The Act came into effect on 1 January 2005 .
The definition of a legislative instrument is described in section 5 of the Act.
A legislative instrument is a written instrument of a legislative character made in the exercise of a power delegated by the Parliament. An instrument is taken to be legislative if it determines or alters the law, rather than applying it in a particular case, and has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right.
Section 6 declares certain instruments to be legislative, such as regulations, statutory rules, Ordinances of non-self-governing territories, disallowable instruments and proclamations.
Section 7 of the Act declares certain kinds of instruments not to be legislative instruments. In addition, Schedule 1 of the Legislative Instruments Regulations 2004 lists a number of commonly found instruments which are not legislative instruments, for example, instruments of appointment and delegations. Sections 7, 44 and 54 of the Act and various Schedules of the Regulations contain a range of exemptions from the whole or parts of the Act.
If the maker of an instrument is not certain whether the instrument is legislative or not, the Act allows the Attorney-General to determine the matter and issue a certificate (under section 10 of the Act).
Instruments which are not legislative may still be subject to disallowance. In order to be disallowable, such instruments must be specifically identified as disallowable non-legislative instruments for the purposes of section 46B of the Acts Interpretation Act 1901.
A legislative instrument made on or after 1 January 2005 is not enforceable unless the instrument is registered on the Federal Register of legislative instruments.
A legislative instrument made before 1 January 2005 must have been lodged for registration under section 29 of the Act to remain in force.
The requirements for registration are set out in Part 4, Division 2 and 3 of the Act.
The Act emphasises the importance of consultation by encouraging rule makers to consult experts and those likely to be affected by an instrument before it is made.
The explanatory statement for the instrument, which will be tabled in the Parliament and accessible on the register, must also contain a description of any consultation undertaken, or if not undertaken, an explanation for its absence.
Almost all registered legislative instruments will sunset after 10 years, on either a 1 April or a 1 October. Section 54 of the Act provides for limited exemptions. Exemptions may also be set out in other Commonwealth legislation.
The Attorney-General must, 18 months before the sunset date, table in Parliament lists of the instruments that are due to sunset. Either House of Parliament can, by resolution, exempt an instrument from sunsetting for a further 10-year period.
In most cases, the requirement to register a legislative instrument under the Legislative Instruments Act replaces any requirement under enabling legislation to notify or publish the instrument in the Gazette.
The Federal Register of Legislative Instruments is an electronic database, incorporated in the ComLaw website.
