Commencement of legislation
While a bill becomes a law when assented to by the Governor-General, it does not necessarily come into operation, that is, have effect as a law, at that time.
Under section 5 of the Acts Interpretation Act 1901, a bill which has been assented to by the Governor-General comes into operation as a law on the 28th day after the Governor-General’s assent, unless the bill specifies another day. Most bills specify the day of assent as the day of commencement, but some specify a particular date. Many bills provide that all or some of their provisions are to commence on a day specified by the Governor-General in a proclamation. Such a provision allows the government to delay the operation of a statute until administrative arrangements or delegated legislation (see Chapter 15, Delegated Legislation) are in place to allow the statute to operate. While this kind of provision may be administratively convenient, it confers a great power on the executive government, and virtually allows the ministry to determine when, if ever, a law duly passed by the Parliament will have effect.
For this reason standing order 139(2) requires regular reports by government on unproclaimed legislation.
There was discussion in 1988 concerning the danger of abuse of this power, and cases of statutes never being proclaimed to come into operation or proclaimed after many years were noted. (See articles by Anne Lynch, ‘Proclamation of Acts — When ... How ... If?’, The House Magazine, 13 May 1987; ‘Legislation by Proclamation — Parliamentary Nightmare, Bureaucratic Dream’, Papers on Parliament No. 2, July 1988; ‘Legislation by Proclamation — revisited’, The House Magazine, 30 August 1989; ‘Management and Mousetraps’, The Parliamentarian, July 1994, pp 194-9 (joint authorship with David Creed).)
On 27 September 1988 the Senate made an order for the tabling of a list of provisions of laws not proclaimed, a statement of reasons for the failure to proclaim them and a timetable for their operation. The required document was presented on 24 November 1988 and was the subject of debate, senators expressing their concern over delays in proclaiming Acts and the reasons given for those delays. It was observed that legislation stated by ministers to be urgent at the time of its passage through the Senate was often not proclaimed for months or years after assent.
On 29 November 1988 the Senate passed a further resolution requiring such a list and statement to be laid before the Senate on or before 31 May and 30 November each year. The first such periodical return was presented on 12 April 1989, and the returns have been presented since that time. This requirement is now contained in standing order 139, which was amended in 1999 to require once-yearly reports only.
In response to the criticism of the misuse of the power to proclaim legislation, the government also adopted a type of commencement provision in bills whereby, if a statute whose commencement is to be specified by proclamation has not commenced within 6 or 12 months after assent, it commences automatically. Provisions allowing proclamations to be made at any time after assent are now not included in bills unless there is some special reason for doing so.
The Senate has amended bills to impose special conditions on their commencement. Amendments have provided that provisions were not to commence until the Senate so approved (13/6/1989, J.1869; 7/9/1989, J.2039), until regulations were approved by the Senate (12/12/1989, J.2358), and until a Senate committee reported (16/12/1992, J.3401), and that a bill was to commence within three years unless that period was extended by the Houses (10/10/1991, J.1554; 19/10/1994, J.2323).
Until 1983 the Houses were not formally notified of proclamations relating to the commencement of legislation. On 31 May of that year (J.157-8) a senator gave notice of motion for an address to the Governor‑General asking that the Houses be notified of such proclamations. The practice was then adopted of tabling the proclamations (6/12/1983, J.546; SD, 6/12/1983, pp 3288-9).
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