Legislation is made by the passage of a Bill through Parliament, but before any new legislation is introduced to Parliament by the government, it must be approved by Cabinet. Regulations must be approved by Cabinet and then made by the Governor.
There are three steps in the Cabinet process for developing legislation:
- Firstly, seeking approval to draft new or amended legislation (Bills are drafted by Parliamentary Counsel).
- Secondly, seeking approval to introduce a Bill into Parliament.
- Lastly, once a Bill is passed by Parliament, it becomes an Act and is assented to by the Governor. The final step is to commence the Act and, if it is new legislation (rather than an amendment to existing legislation), commit the Act to a Minister.
There are specific requirements for these processes.
Submissions seeking approval to draft new legislation or to amend existing legislation must include drafting instructions for Parliamentary Counsel, as well as any other documentation Parliamentary Counsel might need to draft the Bill.
Submissions should also refer to any regulations that may required to support the operation of legislation. These can be developed at a later time.
Where a Bill has been drafted in accordance with Cabinet’s instructions, Cabinet Subcommittee can approve its introduction to Parliament. These submissions must be accompanied by:
- a copy of the Bill settled by Parliamentary Counsel
- the second reading speech
- the explanation of clauses.
Where a Bill departs substantially from Cabinet’s instructions, it must be presented to Cabinet, and the submission must include an explanation of the changes.
When an Act commences on the date of assent or a commencement date is specified, no further action is required to bring it into operation. If the Act states that it will come into operation on a day to be fixed by proclamation, a submission to Cabinet Subcommittee is required.
If the Act is new, rather than an amendment an existing Act, a Cabinet Subcommittee submission is required to initiate a proclamation committing the administration of the Act to a Minister. The committal and commencement of an Act can be contained in one submission.
Specific wording is required for submissions dealing with commencement or committal.
Commencement of an Act
The body of the submission must address the following matters:
- when both Houses of Parliament passed the Bill
- when the Act was assented to by the Governor
- the main purposes of the Act and its likely impact on the community
- whether parts of the Act have already been brought into operation and when this occurred
- the reasons for bringing only certain provisions into operation
Committal of an Act to a Minister
Only principal Acts (not amending Acts) are committed to Ministers. If administration of the Act is being changed, the reasons for that change should be clearly explained in the submission.
The recommendation section of the submission must include reference to:
- His Excellency the Governor in Executive Council issuing the proclamation
- the full title and year of the Act that is to be committed
- the Ministerial portfolio to which the Act is to be committed
- the Administrative Arrangements Act 1994.
Process for drafting and making regulations
You can amend existing regulations or create new regulations. Where regulations are required to support a new Act, these can generally only be drafted and made once the principal legislation has been enacted. Cabinet should have already been advised of the intention to do this and of any conditions guiding the development of new regulations.
Regulations can be presented in one of two ways: most matters can follow a one-step process, but those which are contentious, represent a change in government policy, or will have an impact on a number of different ministerial portfolios require a two-step process. The correct process can be determined through consultation with the Minister’s office, Parliamentary Counsel and Cabinet Office.
How are regulations made?
Regulations are made by the Governor in Executive Council. This usually occurs at the Executive Council meeting following Cabinet approval. All regulations are published in the Government Gazette on the same day as the Executive Council meeting at which they are made.
Regulations must be laid before both Houses of Parliament within six sitting days of being made and will then considered by the Legislative Review Committee.
Regulations can be disallowed by the Legislative Review Committee.
When do regulations commence?
If regulations do not specify a commencement date, they will come into operation four months after the day they are made.
If it is necessary for the regulations to come into operation early, a commencement date can be specified in the regulations. In this instance, a Certificate of Early Commencement is required.
Ministers may ask Parliamentary Counsel to prepare draft regulations. Agencies should use the drafting instructions template to provide instruction. Once the regulations are settled, a Cabinet submission must be prepared to seek approval for the draft regulations and to recommend that the Governor make them.
Use this checklist to guide your submission.
A Cabinet submission must be prepared seeking Cabinet's approval to draft the regulations. Drafting instructions must be included as an attachment and should be provided in the drafting instructions template.
Regulations will then be drafted on Cabinet’s instructions.
Approval to recommend that the Governor make the regulations can then be sought from Cabinet Subcommittee. If the regulations vary significantly from the instructions previously approved by Cabinet, approval to recommend that the Governor make the regulations needs to be sought from full Cabinet.
Use this checklist to guide your submission.
In addition to ministerial offices lodging their submissions electronically via ECO, the following documents must be submitted in hardcopy to Cabinet Office:
- two sets of each regulation
- Certificate of Validity for each set of regulations (prepared by the Office of the Parliamentary Counsel)
- Certificate of Early Commencement (if applicable) for each set of regulations (prepared by the Office of the Parliamentary Counsel)
- 14 copies of the Legislative Review Committee report.
The report to the Legislative Review Committee should contain all information required for the regulation to be allowed including:
- policy considerations which resulted in the development of the regulatory or deregulatory proposal
- a summary of any administrative, legal or other arrangements established under the proposed regulations
- appropriate information on the financial impact of the proposal (if available)
- an outline of the consultation including who was consulted, when they were consulted and their views
- the reasons for issue of a Certificate of Early Commencement (if applicable).
Where a proposed regulation will vary a government fee or charge, the basis of the variation should be stated in the report. Contact details of an agency officer should also be included.
If a report does not comply with the requirements set out above, the committee will recommend disallowance of the relevant regulations.
More information can be found in PC034 Procedures in relation to the referral of subordinate legislation to the Legislative Review committee.