Legislative process explained
LEGISLATIVE PROCESS EXPLAINED
What is a law?
A law is a rule or set of rules passed by the Parliament and assented to by the Governor. Laws made by the Parliament of NSW (also known as 'legislation') include Acts and statutory instruments.
The passage of legislation
Law making in NSW follows a similar pattern to that used in most other Australian States, the Australian Federal Parliament and the British Parliament, where there is a bicameral or two house Parliament. Under a bicameral system, bills (or proposed laws) pass through several stages in both of the Houses of Parliament, before being sent to the Governor for assent. Bills that have received assent are known as Acts.
Bills can be introduced into either House of Parliament, with the exception of money bills (see below) which must originate in the Legislative Assembly. Bills introduced by ministers are considered during the time allocated for government business. Bills introduced by private members are considered during the time allocated for general business.
Types of bills
The most common type of bills introduced into the Parliament of NSW are 'public bills', which deal with matters of general public interest. Public bills may be introduced by either a minister or parliamentary secretary on behalf of the government or by a private member(i.e. a non-minister).
There are two types of public bills: Government public bills and private members’ public bills.
A member may also introduce a 'private bill' (not to be confused with a private member's public bill) which deals only with specific private matters which affect a private person or body. This type is bill is rare in NSW, with the most recent example being the Tamworth Tourist Information Centre Act of 1992.
Cognate bills are bills which are related to each other in terms of subject matter and are presented to the Parliament as a package for simultaneous consideration.
Money bills are public bills which set a tax or propose the spending of money for a particular purpose. Money bills can only be introduced in the Legislative Assembly but after they have been introduced they follow the same passage through both Houses as other bills. However, provision exists under the Constitution Act for the Governor to give his or her assent where the Legislative Council does not agree to pass certain money bills (discussed further below).
Initiating a bill
Government public bills
Government bills stem from party policies, pressure from community groups, the media or public opinion, advice from government departments or even because of court decisions. When the Government decides that laws are needed, the minister concerned submits a proposal to the Cabinet (a meeting of all ministers) for approval.
A draft bill is prepared by the Parliamentary Counsel acting under instructions from the minister and the minister's department. This draft may go through several revisions before being finally prepared for introduction to the Parliament.
Copies of draft bills are not available on the Parliament's website. However, some exposure drafts may be accessed from the Parliamentary Counsel's website. Any questions concerning draft bills should be referred to the office of the minister responsible for the bill.
Private members' public bills
Private members can also initiate a bill in response to pressure from their constituents, community groups, the media or public opinion. A draft bill is prepared by Parliamentary Counsel, acting under instructions from the private member.
The parliamentary process
A summary of the stages in the passage of legislation is below. For greater detail of the legislative process in each House see Legislative Assembly Fact Sheet 8: Passage of Legislation and Chapter 12 of New South Wales Legislative Council Practice.
Notice of motion
Before a bill is introduced into either House a minister or private member must give notice of his or her intention to introduce the bill.
The full text of the notice, including the long title of the bill, is published in the Legislative Assembly Business Paper or the Legislative Council Notice Paper for the next sitting day.
Introduction and First Reading
At a subsequent sitting, unless standing orders are suspended, the Chair will call on the item of business and the minister/member will then move a motion to introduce the bill. The introduction is a formal stage at which the minister/member introducing the bill reads the long title of the bill.
In the Legislative Assembly the bill is taken to have been read a first time after it has been introduced and the minister/member then makes a speech outlining the principles of the bill ( the second reading speech).
In the Legislative Council the Clerk will read the short title of the bill after it has been introduced and this is referred to as the First Reading. The minister/member will then proceed with his or her second reading speech.
After the second reading speech, unless Standing Orders have been suspended to allow urgent consideration of the bill, debate is then adjourned for five clear/calendar days.
Second Reading Debate
During the second reading debate, members express their opinions about the principles of the bill. At the conclusion of the debate, a vote is taken on the question "that this bill be now read a second time" .
If the House disagrees, then the bill is defeated.
If the House agrees, and there are no amendments proposed to the bill, the bill moves directly to the third reading stage. If there are amendments proposed to the bill, the bill proceeds to either the consideration in detail stage (LA) or committee stage (LC).
Consideration in detail (Legislative Assembly) Committee of the Whole (Legislative Council)
If a member wishes to amend a bill, the House will consider the bill in detail (LA) or form itself into a "committee of the whole" to deal with the bill in detail (LC). During this stage the Presiding Officer leaves the Chair. In the LA the Speaker takes a seat next to the Clerks at the Table to preside over consideration of the bill in detail. In the LC, this role is performed by the Chair of Committees.
Once the bill has passed through the second reading, and where necessary the consideration in detail/committee of the whole stages, a question will be moved "that this bill be now read a third time" If agreed to, the bill has passed all stages and the bill is sent, with a message, to the other House for consideration.
Consideration by the other House
The Presiding Officer or Chair advises the House that a message has been received seeking concurrence with a bill. (This replaces the notice of motion stage in the House of origin.) The bill then proceeds through all remaining stages in the second House before being returned to the House of origin, either with the second House's agreement or with amendments for consideration by the House of origin.
Consideration of amendments by the House of origin
Bills that have been returned to the House of origin with amendments from the second House are considered in the consideration in detail stage (LA) or Committee of the Whole (LC). If the amendments are agreed to in the House of origin, the bill is sent to the Governor for assent. If, however, the amendments are not agreed to, both Houses exchange messages until agreement is reached or the bill is set aside.
Where agreement cannot be reached, and the House of origin does not wish to lay the bill aside, a conference and joint sitting of both Houses can be held to discuss the bill. If necessary, the Legislative Assembly can then submit the bill to the people of NSW by referendum, under section 5B of the Constitution Act 1902.
Under section 5A of the Constitution Act 1902, the Legislative Assembly may direct that any bill appropriating revenue for the ordinary annual services of the Government may be presented to the Governor for assent where that bill has been rejected, not passed or amended by the Legislative Council without the agreement of the Legislative Assembly.
Once a bill has passed both Houses (except for the exceptional circumstances under sections 5A and 5B outlined above), it is forwarded to the Governor for assent. The Governor receives an opinion from the Attorney-General as to the constitutionality of the bill. Once satisfied, the bill receives final approval at a meeting of the Executive Council and is signed by the Governor into law.
The bill is then allocated a number by the Parliament and the original signed copy is sent to the Registrar-General for safe keeping as an historical record of the State of NSW.
An Act comes into force 28 days after it is assented to, or on a day or days to be appointed by proclamation. A clause, stating whether the Act comes into force by assent or proclamation, usually appears at the beginning of each bill.
When an Act or clauses of an Act come into force by proclamation, this date is determined by the minister who, on behalf of the Governor, places an announcement in the Government Gazette shortly before the date of commencement. It should be noted that not all clauses of an Act will come into force at the same time.
The Government is required to lodge notification with the Parliament of all legislation remaining unproclaimed after 90 days.
Information about the commencement dates of Acts can be obtained from the "Notification-Gazette" section of the NSW Legislation website.
Statutory instruments are rules, regulations, by-laws, ordinances, rules of the court or proclamations made under certain Acts. Statutory instruments are published in the Government Gazette or on the NSW Legislation website and a notice providing details of the instrument and gazette number is then tabled in both Houses of Parliament. Statutory instruments are not debated in the Parliament unless a member of either House lodges a motion to disallow part or all of that rule or instrument within 15 sitting days of the tabling of the notice.