Making laws
House of Representatives Infosheet
No. 7Revised April 1998 About half of the total sitting time of
the House is spent considering bills, that is, proposed laws. These range from
comparatively minor proposals of an administrative nature to comprehensive initiatives
of major social, economic or industrial significance. This Infosheet describes
how government bills are considered and passed by the House. However, all Members
of the House, as well as Ministers, are entitled to propose legislation. Procedures
for private Members' bills are, in the key elements, the same as those for government
bills. Infosheet No. 6 — Opportunities for Private
Members discusses this topic in more detail and explains the differences
that do exist. Page menu : The Federal Parliament's legislative
powers | Preparation of a bill | Passage
of a bill through the House—the normal routine | Giving
notice | Presenting a bill to the House—first reading
| Second reading debate | Consideration
in detail | Third reading | Alternative
procedures | Bills debated together | Urgent
bills, the guillotine | Reference to a committee
| Special types of bill | Bills introduced
from the Senate | Proceedings after leaving the House
| Transmission to Senate | Senate
proceedings | Disagreement between the two Houses
| Assent | When a law comes into effect
| Some statistics | Delegated legislation
| An historical note | Suggestions
for further reading
The Federal Parliament's
legislative powers A new Commonwealth law can only be made, or an existing
one changed or removed, by or under the authority of the Federal Parliament, that
is, by or in accordance with an Act of Parliament. Under Australia's Constitution
the federal Parliament can make laws on certain matters only. These include: international
and inter State trade; foreign affairs; defence; immigration; taxation; banking;
insurance; marriage and divorce; currency and weights and measures; post and telecommunications;
and invalid and old age pensions. The Australian States retain legislative powers
over many areas. In some respects the legislative powers of the two Houses
are not equal. In matters relating to the collection or expenditure of public
money the Constitution gives a pre-eminent role to the House of Representatives—the
House of Government. Appropriation bills and bills imposing taxation cannot originate
in the Senate. The Senate may not amend bills imposing taxation and certain appropriation
bills, or amend any bill so as to increase any 'proposed charge or burden on the
people'.
Preparation of a bill A bill, which is a formal
document prepared in the form of a draft Act, is no more than a proposal for a
law or a change to the law. A bill becomes an Act—a law—only after it
has been passed in identical form by both Houses of the Parliament and has been
assented to by the Governor-General. The original ideas for government legislation
come from various sources. They may result from party policy, perhaps announced
during an election campaign, from suggestions by Members and Senators or from
interest groups in the community. Many proposals, especially those of a routine
nature which may be thought of as matters of administrative necessity, originate
in government departments. In whichever way a proposal originates it is considered
by Cabinet or the Prime Minister and, if agreed to, the Minister responsible has
his or her department arrange preparation of a bill. Bills are drafted by the
Office of Parliamentary Counsel in accordance with detailed instructions issued
by departments. Draft bills are usually examined by government party committees.
The Parliamentary Business Committee of Cabinet determines the program of bills
to be introduced for each parliamentary sitting period.
Passage of a bill through the House—the normal
routine During its consideration by the House a bill passes through successive
stages, at which proposals are made (motions moved) in relation to the bill's
progress or content, speeches may be made for and against such proposals (debate)
and the proposals are voted on (decisions of the House).
Giving notice In the usual course of events
a Minister wishing to introduce a bill gives written notice (advance warning)
of his or her intention to the Clerk of the House, who arranges for the bill to
be listed on the Notice Paper (the House's agenda of business) for the next sitting
day. The notice follows a standard format: I give notice of
my intention to present, at the next sitting, a Bill for an Act to . . . [remainder
of bill's long title]. The 'long title' is the bill's
full title and sets out in brief terms the purpose or scope of the bill. Notice
is not necessary for appropriation and supply bills or bills dealing with taxation.
Presenting a bill to the House—first reading
At the appropriate time of the day's proceedings, the House comes to
the government business set down for the day. The Clerk calls on the first item
of business by announcing 'Notice No. 1' and reading the short title of the bill,
whereupon a Minister rises and says 'I present the . . . . . . . Bill 1998', and
hands a signed copy of the bill to the Clerk. The bill is then read a first time
by the Clerk standing and reading out the long title of the bill. Copies of the
bill, which until this time have been treated as confidential by parliamentary
staff, are then distributed to Members. The Minister moves the second reading
by saying: 'I move that the Bill be now read a second time'. He or she then proceeds
to give the second reading speech explaining, for example, the purpose, general
principles and effect of the bill. At the end of his or her speech the Minister
presents to the House an explanatory memorandum, a document which explains the
reasons for the bill and outlines its provisions. Debate on the bill is then adjourned
and set down as an item of business for a future sitting. The purpose of this
pause in proceedings is to give Members time to study the bill and its effects
before speaking and voting on it, and to provide the opportunity for public discussion
and reaction. The second reading speech (along with the explanatory memorandum)
plays an important role in the legislative process and may be taken into account
by the courts in any interpretation of an Act.
Second reading debate Although listed on the
Notice Paper 'for the next sitting', the second reading debate does not usually
commence for several sitting days, and sometimes much later, depending on the
Government's legislative program. On the resumption of the debate an opposition
Member (usually the 'shadow minister') delivers the main opposition speech in
response. Government and opposition Members then usually speak in turn. The total
time for the debate is not restricted by the standing orders, but in practice
the number of speakers on each side is usually negotiated between the Government
and Opposition and any independent Members. The second reading debate is normally
the most substantial debate that takes place on a bill. Its purpose is to consider
the principles of the bill. Debate may cover, for example, reasons why the bill
should be supported or opposed, the necessity for its proposals or alternative
means of achieving the same objectives. At the end of the debate a vote is
taken on the question 'That this bill be now read a second time'. If this is agreed
to, the Clerk stands and reads out the long title of the bill. By its decision
at this stage the House has agreed to the bill in principle.
Consideration in detail The purpose
of this stage is to consider the text of the bill in detail, clause by clause,
and to enable changes to it to be proposed. Proceedings are less formal than they
are for the second reading debate and procedures can be more flexible. For example,
Members may speak an unlimited number of times to each question before the Chair.
Clauses are taken in their numerical order but, if no Member objects, a number
of clauses may be taken together, the question put from the Chair being 'That
the clause (or clauses) be agreed to'. On occasion Members may be happy to consider
the bill as a whole and in this case the question is simply 'That the bill be
agreed to'. The form of an amendment may be by omitting, omitting and substituting,
inserting or adding words or particular elements. When an amendment has been moved,
the question from the Chair is usually in the form 'That the amendment be agreed
to', although more complicated procedures may be necessary. When the House has
voted to accept an amendment the Chair puts the question 'That the clause/clauses/bill
as amended be agreed to'. The consideration in detail stage of a bill may
be by-passed. If the Chair understands that Members may not desire to examine
the bill in detail, he or she asks whether they wish to proceed directly to the
third reading and, if no Member objects, this is done. Detailed debate is considered
unnecessary for many bills which are in a technical or drafting sense very limited
in scope or when, in the case of appropriation and taxation bills, certain amendments
moved by a private Member would be out of order.
Third reading This stage is usually a formality.
Although the standing orders provide for the third reading to take place on the
next day of sitting, in practice the House allows the Minister to move the motion
'That this bill be read a third time' immediately. Debate at this stage is relatively
rare and is restricted to the contents of the bill, that is, the matters contained
in the clauses and schedules of the bill. When the motion has been agreed to,
the Clerk again reads out the long title of the bill. This signifies that the
bill has finally passed the House.
Alternative procedures Bills considered
by the Main Committee Following the Minister's second reading speech in the
House, a bill may be referred to the Main Committee for the remainder of the second
reading and the consideration in detail stages. The Main Committee is a committee
established to be an alternative to the plenary for the consideration of a restricted
range of business. All Members of the House are members of the Committee which
meets while the House is sitting—its primary function is to make it possible
for two streams of legislation to be debated at the same time. Only bills on which
there is potential for agreement to be reached are referred to the Main Committee,
following consultation between the Government and the Opposition. The Main
Committee's procedures are substantially the same as they are in the House. The
Committee can amend the bill just as the House can and the same rules of debate
apply. However, the Main Committee operates by agreement—divisions cannot
take place—and matters on which the Committee cannot agree are referred back
to the House for decision there. Before their third reading, bills which have
been considered in the Main Committee go through an additional stage—the
report stage—when the House considers and votes on the bill as reported back
to it. Debate is restricted to matters the Main Committee could not agree on.
(Infosheet No. 16 — The Main Committee
gives more details of the Main Committee.)
Bills debated together When there are two
or more related bills before the House, if no Member objects, a 'cognate' second
reading debate may take place, during which the bills are debated together. On
the conclusion of the debate separate questions are put as required on each of
the bills.
Urgent bills, the guillotine If for some reason
the Government wishes to hasten a bill's progress, a Minister can declare it an
'urgent bill'. The question 'That the bill be considered an urgent bill' is then
put by the Chair and must be decided without debate. When a declaration of urgency
has been agreed to by the House, the Minister proceeds to move a motion specifying
the times to be allotted for the various remaining stages of the bill. If these
details are agreed to, when the time fixed for a stage has been reached, the debate
is interrupted immediately and the questions necessary to dispose of that stage
are put.
Reference to a committee It is possible,
following the Minister's second reading speech, for a bill to be referred for
an advisory report to a standing committee which specialises in the subject area
of the bill. The committee can hear witnesses and gather evidence relating to
the bill and can recommend action to the House, although it cannot amend the bill
itself.
Special types of bill Additional or slightly
different procedures apply to financial legislation—appropriation and supply
bills and taxation bills (see Infosheet No. 10 — The
Budget and financial legislation), and to proposals to make changes to
the Constitution—constitution alteration bills (see Infosheet
No. 13 — The Constitution).
Bills introduced from the Senate The great majority
of government bills are initiated in the House of Representatives, because of
the constitutional restrictions on the nature of bills which can originate in
the Senate and because of the fact that most Ministers are Members of the House.
When a Senate bill has passed all stages in the Senate, it is transmitted
to the House under cover of a message and introduced to the House by the Speaker
reading the terms of the message to the House. Subsequent proceedings follow the
same processes as House bills.
Proceedings after leaving the House Transmission
to Senate After a bill has passed the House the Clerk signs a certificate
attached to the bill stating: THIS Bill originated in the House of
Representatives; and, having this day passed, is now ready for presentation to
the Senate for its concurrence. If it has been amended by the
House, the bill is reprinted at this stage. When the bill is ready, the Speaker
signs a document, known as a 'message', addressed to the President of the Senate
which reads: The House of Representatives transmits to the Senate
a Bill for an Act. . . [remainder of long title of bill], in which
it desires the concurrence of the Senate. The message and bill
are then delivered to the Senate by the Serjeant-at-Arms.
Senate proceedings The bill again goes
through three readings in the Senate. When the bill has passed the Senate, the
Senate then returns the bill to the House, either with or without amendments,
or with a request that the House make an amendment in cases where the Senate is
prevented by the Constitution from making an amendment itself. Senate amendments
and requests are considered by the House, and may be accepted or disagreed to.
Disagreement between the two Houses Where
there are disagreements, messages may pass between the two Houses to seek to reach
agreement as to the bill's final form. If the two Houses cannot agree, a bill
may be 'laid aside'. In circumstances provided for by the Constitution an unresolved
disagreement may lead to the dissolution of both Houses by the Governor-General
and elections for each House. (See Infosheet No. 18 —
Double dissolution.)
Assent When a bill has finally passed both
Houses in identical form and been checked and certified accordingly by the Clerk
of the House, it is presented to the Governor-General for assent. The words of
assent used by the Governor-General are: In the name of Her
Majesty, I assent to this Act. At this point the bill
becomes an Act of Parliament and part of the law of the land, although the validity
of the Act may be tested in court subsequently.
When a law comes into effect Acts do not necessarily
come into operation immediately on assent, although this is common. An Act may
specify a particular date, perhaps retrospective, or the day of a stipulated event,
or a date to be decided later by the Government and announced ('proclaimed') by
the Governor-General. If no commencement date is specified in an Act, it comes
into effect on the 28th day after it receives the Royal Assent.
Some statistics Over the last ten years
(1988–1997) an average of 175 bills received assent each year, ranging from
121 in 1993 to 264 in 1992. These figures compare with an average of 204 bills
introduced into the House of Representatives during the same period, ranging from
173 in 1995 to 282 in 1992.
Delegated legislation The Parliament may
delegate some of its legislative powers to the Executive Government, which may
make regulations, statutory rules, by-laws, orders, ordinances, instruments or
determinations according to the powers bestowed by an authorising Act of Parliament.
Laws made in this way are known as delegated or subordinate legislation. Delegated
legislation must be authorised by an Act, must be presented to both Houses of
the Parliament and can be disallowed (vetoed) by a motion agreed to by either
House. In some cases Acts provide that specific pieces of delegated legislation
made under their authority must be approved by both Houses before coming into
effect. All delegated legislation is closely scrutinised by the Senate Standing
Committee on Regulations and Ordinances.
An historical noteThe legislative processes
followed in the Commonwealth Parliament (and in the Australian States) are derived
from British practice dating back several centuries. The word 'bill' originally
meant the same as 'petition' and was in effect a request from the Parliament to
the King to take certain action or to state that the law was as the Parliament
thought it should be. These bills became statutes if and when the King agreed
to them. The term 'reading' for a stage in a bill's progress dates back to
the time when most people, including Members of Parliament, could not read. In
those days a bill had to be read out in full by the Clerk of the House on several
occasions so that Members would know what it was about. While we now have only
3 readings up to 8 have been recorded in the House of Commons.
Suggestions
for further reading House of Representatives Practice, 3rd
edn. A.G.P.S., Canberra, 1997. pp 349–456. House of Representatives Standing
Committee on Procedure About time: Bills, questions and working hours. Report
of the inquiry into reform of the House of Representatives. AGPS, Canberra,
1993. (Parliamentary Paper 194 of 1993) pp 4-18. House of Representatives
Standing Committee on Procedure Time for review: Bills, questions and working
hours. Report of the review of procedural changes operating since 21 February
1994. AGPS, Canberra, 1995. (Parliamentary Paper 108 of 1995) pp 3-19.
Department of the Prime Minister and Cabinet, Legislation Handbook.
AGPS, Canberra, 1988.
Last updated:
7 April 1998
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