Legislation consists of Acts (also called Statutes) and subordinate (or delegated) legislation. In Australia, the power to make legislation is divided between the Commonwealth and the States. The approach taken to find and update legislation differs slightly between each state and the Commonwealth. This lesson will concentrate on Commonwealth legislation, as immigration and emigration are Commonwealth legislative powers as set out in the Australian Constitution (see s 51(xxvii) Australian Constitution).
This topic aims to give you an overview of legislation. Many of the elements discussed here will be dealt with in greater depth in subsequent topics in this online lesson.
Passage of a Bill
Most Bills are introduced in the lower House of Parliament, which is the House in which the government is formed, and where most Ministers sit.
A Bill passes through several stages in Parliament before it becomes law (when it is called an Act or Statute). These stages are:
- 1st reading
This stage is a formal one where only the title of the Bill is read. There is little or no debate, and a date is set for the second reading.
- 2nd reading
The Minister responsible for the Bill introduces it and explains its purpose. This is known as the second reading speech. The broad principles of the Bill are then debated, sometimes over several days.
- Committee Stage
This stage involves a detailed examination of the Bill, clause by clause, either by the whole House, or by a standing or select committee of a few members. The Bill may be amended during this stage, and is voted on clause by clause.
- 3rd reading
This stage is largely a formality. The Bill is then sent to the Upper House, where the procedure outlined above is repeated.
For more detail on the process of passing legislation in federal Parliament see: Parliament of Australia - Infosheet 7 - Making laws.
You can track the progress of a current Bill through parliament by going to the Parliament of Australia website, locating the particular Bill you are interested in and selecting Track.
Bills
A Bill is a draft of a law which Parliament proposes to enact.
Proposals for new legislation may come from a variety of sources, including Cabinet, a Government Department, a Law Reform Commission or a Royal Commission. Once a decision has been made to proceed with legislation, the parliamentary draftsperson is instructed to prepare a Bill.
Format: The first page of a Bill generally gives some or all of the following information:
- The year of the parliamentary session;
- The Parliament and its House (i.e. House of Representatives or Senate);
- The date of the first reading;
- The Minister or name of the Member introducing the Bill;
- The title.
The text of a Bill is set out in much the same way as an Act.
- The provisions of a Bill are numbered and called clauses;
- Clauses may be further divided into sub-clauses and paragraphs.
See the example below for the Australian Border Force Bill 2015 (Cth), which has now been enacted as the Australian Border Force Act 2015 (Cth).
Sourcing Bills
Commonwealth Bills and Explanatory Memoranda are available online from the Federal Register of Legislation from 1996 onwards, and from the Australian Parliament for the current Parliamentary session.
Bills Digests produced by the Australian Parliamentary Research Service provide useful background information on Commonwealth Bills.
Bills & Legislation is a site which includes listings of bills currently before the Commonwealth Parliament, and the full text of current bills and explanatory memoranda, in addition to a selection of older bills.
Explanatory Memoranda
Most Commonwealth Bills are accompanied by explanatory memoranda, which explain, clause by clause, the content and purpose of the Bill.
The Australian Border Force Bill 2015 (Cth) was accompanied by an explanatory memorandum. The example below shows the Explanatory Memorandum, Australian Border Force Bill 2015, 1-2.
Parliamentary Debates (Hansard)
The debates surrounding a Bill, including the second reading speech, are published in Hansard, or Parliamentary Debates.
Commonwealth Hansard (in print) is located in the Law Library, South Wing Level 3 of the South Street Campus Library, at GR 328.9402 A938.
The Commonwealth Parliamentary Debates are also available from the Parliament of Australia website, from Federation (1901) onwards.
Proclamation of Acts
Once a Bill has been passed by both Houses of Parliament, it must be presented to the representative of the Crown to receive royal assent.
For the Commonwealth this is the Governor General.
Once it has been signed the Bill is deemed "assented to" and it is then an Act or Statute.
The date of assent is printed on the Act and a notice of the date is published in the appropriate Government Gazette: Commonwealth of Australia Gazettes.
The Act, however, does not become part of the law of the land until it comes into effect or is proclaimed to commence.
Commonwealth Acts will take effect 28 days after the date of their royal assent (Acts Interpretation Act 1901 (Cth) s 5(1)).
If an Act is to commence on a date other than 28 days after royal assent, it will be stated in the section of the Act with the marginal note Commencement (usually section 2).
Section 2 of the Act is usually the place to check for commencement details, unless the Act itself states otherwise.
In some cases, this may be on a date to be proclaimed, in which case the date will be published in the appropriate Government Gazette.
Below you can see section 2 of the Australian Border Force Act 2015 (Cth) - Commencement
Proclamation Date
Where an Act has been reprinted, or published on the Federal Register of Legislation as a Compilation, the assent and commencement details for the principal Act and all subsequent amending Acts are given in the notes section at the end of the reprint.
Proclamations with commencement information are made in the Commonwealth of Australia Gazettes: Government Notices (from 2012).
Acts
Acts are individually published in pamphlet form once they have received Royal Assent, and are numbered sequentially for the year.
These numbers are referred to as the sessional details and are written in the form, No. XX of XXXX. For example, No. 40 of 2015.
Acts are available from the Federal Register of Legislation.
At the end of each year they are re-issued in annual bound volumes.
Any amendments to the principal, or original, Act are published as part of the pamphlet sequence as well as online.
When an amendment has been made to a Commonwealth Act, a new consolidation is made available online.
Format
Acts are set out in a similar manner to Bills.
The clauses of a Bill become sections of an Act.
Sections may be further divided into subsections and paragraphs.
An Act will generally have the following information:
- The sessional details (number and year) of the Act, for example Act No. 203 of 1997;
- The long title of the Act, short title and commencement details as you can see in the example below.
Section Titles
The Table of Contents of each Act lists the titles of each section.
The Contents of an Act is located at the beginning of the Act prior to the sections themselves:
Scroll through the contents list in the Migration Act 1958 (Cth) to locate s 46A.
This shows you that the title of s 46A is 'Visa Application by unauthorised maritime arrivals' and that it is located on page 72 of this version of the Migration Act 1958 (Cth). A quick look at page 72 will confirm this.
Delegated (Subordinate) Legislation
Parliament may delegate authority to other bodies (for example Government Departments) to draw up rules governing the administration of an Act.
These laws are collectively known as subordinate or delegated legislation.
Delegated legislation includes legislative instruments, statutory rules, regulations, ordinances, by-laws and rules.
The authority to make subordinate legislation is conferred by an Act of Parliament, known as the enabling Act.
The enabling Act frequently stipulates the way the subordinate legislation is to be made.
Commonwealth legislative instruments can be found online. Commonwealth subordinate legislation.
Legislative Instruments were called Statutory Rules until 2004, then as Select Legislative Instruments (SLI) until 2016.
The Federal Register of Legislative Instruments (FRLI) is a part of the Federal Register of Legislation.
This includes a category of material made by government bodies including proclamations, orders, notices, determinations and other material.
For the definition of legislative instruments see the Legislation Act 2003 (Cth) s 8 which defines legislative instruments.
Note: The Select Legislative Instrument (SLI) numbered series has ceased printing and as a result the practice of allocating SLI numbers to instruments has been discontinued from January 2016.