How are laws made?

The process for making laws, or the legislative process, is similar for both the NSW and Australian systems

For a thorough explanation of how laws are made, visit the Parliament of NSW website or the Parliament of Australia website.

The Legal Information Access Centre (LIAC) has produced two videos on how laws are made in the Parliament and in the Courts.

© State Library of New South Wales 2013

© State Library of New South Wales 2013

 

The Making of an Act

A Bill is draft version of an Act of Parliament (a law) before it is made. Bills can be proposed new laws or proposed amendments to existing laws. Bills can be introduced into either house of Parliament by a Government Minister, or by a ‘private Member’ – any Member of the House other than the Prime Minister, the Speaker, a Minister or Parliamentary Secretary. This includes members of the opposition, independent MPs, and members of minor parties.

The legislative process offers a chance for the public to engage in law making. Bills are drafted and introduced as a response to party policies, pressure from the community, public servants, the media, advice from Parliamentary Committees or law reform commissions, or to clarify the law following the decision of a court or tribunal. You may wish to contact your local MP, the Minister or opposition spokesperson for the relevant portfolio, or an independent to discuss your ideas.

Bills are drafted by the Australian or NSW Office of Parliamentary Counsel under instruction from the government or private Member proposing the Bill. Members must give notice in Parliament of their intention to introduce a Bill so that it can be listed for the next sitting day.

The community can become indirectly involved in the introduction of Bills and the making of laws. If there is an issue that you feel needs to be addressed in the law, you can approach your local Member or an MP or Senator who is sympathetic to your cause with your idea for a new law or reform of an existing one. A good way to find out what issues are important to MPs and Senators is to look at the inaugural or first speeches in the Australian Senate or House of Representatives or the NSW Legislative Council and Legislative Assembly, depending on whether you are trying to influence national or State law. MPs often use their first speech to highlight the issues and causes that are important to them.

The community is also sometimes consulted on amendments to existing laws or the introduction of new laws. This is where you can have your say on what you like about the Government’s proposed changes, how you think the current law or framework is or isn’t working, and what you would like to see in a new law or framework. You can find opportunities to comment on both the Australian and NSW ‘Have Your Say’ websites.

 

Originating House

Bills are usually introduced into the Lower House. The first time that a Bill is introduced and read in Parliament is known as the ‘first reading’. After the first reading, the Bill is published on the Parliament of Australia and Parliament of NSW websites, along with an explanatory memorandum.

The Member who introduced the Bill then moves that the Bill be read a second time, and makes a ‘second reading speech’, which is a speech explaining the intended purpose of the Bill. The second reading speech is also published on the Parliament of Australia and Parliament of NSW website.

Following the second reading speech, discussion about the Bill is usually adjourned so that all Members of Parliament are able to read the Bill and prepare for debate. The second reading debate is a discussion in Parliament about the Bill, where MPs are able to express their reasons for supporting or opposing the Bill. Once the second reading debate has finished, MPs vote on whether the Bill should be read a second time. If the House agrees, the Bill is read a second time. If not, the Bill is defeated and will not be read again.

If any amendment is proposed, the Bill is considered in detail in the House that it was introduced in (the originating House). This includes going through the Bill and considering it in detail. Changes can be made by omitting, substituting, or adding words. Each change is voted on by Parliament.

Sometimes the Parliament will ask a committee made up of MPs to conduct an inquiry and present a report on the Bill. These committees can make recommendations, but cannot make changes to the Bill.

Once changes have been decided upon, there is a motion that the Bill be read a third time. If the House agrees, the Bill will be read a third time and will then be submitted to the other House (usually the Upper House).

 

Other House

The other House will then go through the same process (first reading, second reading and debate, consideration of amendments, and then third reading). If the Bill passes through the other House, it will be returned to the originating House.

The other House can make amendments to the Bill. If this is the case, the amendments need to be considered by the originating House. If the originating House does not agree with the changes it will try to negotiate with the other House until a compromise has been reached.

 

Disagreement between Houses

If the Houses cannot agree, the Bill will be set aside and will not become law, unless the originating House wishes to pursue the Bill. At the Australian Parliament level an unresolved disagreement may lead to the dissolution of both Houses by the Governor-General and elections for each House. This is also rare. In NSW the Lower House can submit the Bill to the public for a referendum – a yes or no vote. This is also very rare.

 

Assent and proclamation

Once a Bill has passed both Houses of Parliament, or is supported by a referendum, it will be sent to the Governor-General (Australian) or Governor (NSW) for assent. The Attorney-General will advise the Governor-General or Governor whether or not the Bill is valid under the Constitution. The Bill will then be signed into law by the Governor-General or Governor at a meeting of the Executive Council.

An Act comes into force 28 days after it is assented to, or more usually, on a day to be proclaimed by the Governor-General or Governor.

 

Legislative Instruments

A Bill is draft version of an Act of Parliament (a law) before it is made. Bills can be proposed new laws or proposed amendments to existing laws. Bills can be introduced into either house of Parliament by a Government Minister, or by a ‘private Member’ – any Member of the House other than the Prime Minister, the Speaker, a Minister or Parliamentary Secretary. This includes members of the opposition, independent MPs, and members of minor parties.

The legislative process offers a chance for the public to engage in law making. Bills are drafted and introduced as a response to party policies, pressure from the community, public servants, the media, advice from Parliamentary Committees or law reform commissions, or to clarify the law following the decision of a court or tribunal. You may wish to contact your local MP, the Minister or opposition spokesperson for the relevant portfolio, or an independent to discuss your ideas.

Bills are drafted by the Australian or NSW Office of Parliamentary Counsel under instruction from the government or private Member proposing the Bill. Members must give notice in Parliament of their intention to introduce a Bill so that it can be listed for the next sitting day.

The community can become indirectly involved in the introduction of Bills and the making of laws. If there is an issue that you feel needs to be addressed in the law, you can approach your local Member or an MP or Senator who is sympathetic to your cause with your idea for a new law or reform of an existing one. A good way to find out what issues are important to MPs and Senators is to look at the inaugural or first speeches in the Australian Senate or House of Representatives or the NSW Legislative Council and Legislative Assembly, depending on whether you are trying to influence national or State law. MPs often use their first speech to highlight the issues and causes that are important to them.

The community is also sometimes consulted on amendments to existing laws or the introduction of new laws. This is where you can have your say on what you like about the Government’s proposed changes, how you think the current law or framework is or isn’t working, and what you would like to see in a new law or framework. You can find opportunities to comment on both the Australian and NSW ‘Have Your Say’ websites.

 

Originating House

Bills are usually introduced into the Lower House. The first time that a Bill is introduced and read in Parliament is known as the ‘first reading’. After the first reading, the Bill is published on the Parliament of Australia and Parliament of NSW websites, along with an explanatory memorandum.

The Member who introduced the Bill then moves that the Bill be read a second time, and makes a ‘second reading speech’, which is a speech explaining the intended purpose of the Bill. The second reading speech is also published on the Parliament of Australia and Parliament of NSW website.

Following the second reading speech, discussion about the Bill is usually adjourned so that all Members of Parliament are able to read the Bill and prepare for debate. The second reading debate is a discussion in Parliament about the Bill, where MPs are able to express their reasons for supporting or opposing the Bill. Once the second reading debate has finished, MPs vote on whether the Bill should be read a second time. If the House agrees, the Bill is read a second time. If not, the Bill is defeated and will not be read again.

If any amendment is proposed, the Bill is considered in detail in the House that it was introduced in (the originating House). This includes going through the Bill and considering it in detail. Changes can be made by omitting, substituting, or adding words. Each change is voted on by Parliament.

Sometimes the Parliament will ask a committee made up of MPs to conduct an inquiry and present a report on the Bill. These committees can make recommendations, but cannot make changes to the Bill.

Once changes have been decided upon, there is a motion that the Bill be read a third time. If the House agrees, the Bill will be read a third time and will then be submitted to the other House (usually the Upper House).

 

Other House

The other House will then go through the same process (first reading, second reading and debate, consideration of amendments, and then third reading). If the Bill passes through the other House, it will be returned to the originating House.

The other House can make amendments to the Bill. If this is the case, the amendments need to be considered by the originating House. If the originating House does not agree with the changes it will try to negotiate with the other House until a compromise has been reached.

 

Disagreement between Houses

If the Houses cannot agree, the Bill will be set aside and will not become law, unless the originating House wishes to pursue the Bill. At the Australian Parliament level an unresolved disagreement may lead to the dissolution of both Houses by the Governor-General and elections for each House. This is also rare. In NSW the Lower House can submit the Bill to the public for a referendum – a yes or no vote. This is also very rare.

 

Assent and proclamation

Once a Bill has passed both Houses of Parliament, or is supported by a referendum, it will be sent to the Governor-General (Australian) or Governor (NSW) for assent. The Attorney-General will advise the Governor-General or Governor whether or not the Bill is valid under the Constitution. The Bill will then be signed into law by the Governor-General or Governor at a meeting of the Executive Council.

An Act comes into force 28 days after it is assented to, or more usually, on a day to be proclaimed by the Governor-General or Governor.

 

What is the difference between an Act, a Regulation and a policy?

Acts are the highest form of legislation. Regulations are a form of delegated legislation, and sit below Acts. See Legislative instruments for more information about delegated legislation.

Policies are not laws, but they are designed to guide decision-makers in their application of the law. Policies are made by Ministers or Government Departments. The public are often given an opportunity to comment on draft policies and plans. For more information and for opportunities to have your say on government policy, see the relevant topic area.

 

Reviewing Laws

National legislation usually specifies particular review requirements within each Act. New legislation in NSW is usually reviewed after five years. A review is carried out to determine whether the policy objectives of an Act remain valid and whether the means of addressing these objectives are appropriate.

How a review is conducted may vary depending on the department administering the Act, as well as the wording of the Act's review provisions. Some reviews are conducted internally by Departments, and other reviews may use targeted stakeholder consultation only. It is always a good idea to check with the relevant Department whether there will be specific public participation opportunities.

The review may present an opportunity for you to comment on the way that the particular Act is working. Public submissions and public hearings may inform or influence amendments to the Act.

If you are interested in making a submission you should begin collecting information in accordance with the review's terms of reference as early as possible. EDO NSW may be able to assist you in terms of how you go about doing this.

EDO NSW often writes submissions on key legislation, as do key conservation groups such as the Nature Conservation Council of NSW and the Total Environment Centre. You should consider contacting EDO NSW or these groups to find out what they are planning to do, or if they have done previous submissions on a topic that might assist your own submission writing. All of EDO NSW’s submissions are available on our website.

 

This project has been assisted by the New South Wales Government through its Environmental Trust.

 

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