MAKING LAWS

House of Representatives Factsheet No. 7

Revised June 1996


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 Factsheet 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. Factsheet No. 6 — Opportunities for Private Members discusses this topic in more detail and explains the differences that do exist.

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 1996', and hands three signed copies 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

Bills may be referred to the Main Committee for their second reading and 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.

(Factsheet 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 first reading, 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 hear 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, and to proposals to make changes to the Constitution—constitution alteration bills.

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 affixed 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 intituled . . . [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.

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 (1986–1995) an average of 178 bills received assent each year, ranging from 121 in 1993 to 264 in 1992. These figures compare with an average of 203 bills introduced into the House of Representatives during the same period, ranging from 176 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 note

The 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, 2nd edn. A.G.P.S., Canberra, 1989. pp 368–466.

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: 25 June 1996