Getting Legislation Drafted and Enacted

Getting Legislation Drafted and Enacted - KSL Library...

This preview shows page 1 - 17 out of 17 pages.

Image of page 1

Subscribe to view the full document.

Image of page 2
Image of page 3

Subscribe to view the full document.

Image of page 4
Image of page 5

Subscribe to view the full document.

Image of page 6
Image of page 7

Subscribe to view the full document.

Image of page 8
Image of page 9

Subscribe to view the full document.

Image of page 10
Image of page 11

Subscribe to view the full document.

Image of page 12
Image of page 13

Subscribe to view the full document.

Image of page 14
Image of page 15

Subscribe to view the full document.

Image of page 16
Image of page 17

Unformatted text preview: KSL Library Getting Legislation Drafted and Enacted Guidelines and Procedures \ \ This document explains the process by which legislation gets drafted and enacted and sets out the roles and responsibilities that parliamentary counsel and officers of departments and organisations have in this process. Further inquiries about these matters can be directed to: Parliamentary Counsel’s Office Government of Western Australia Level 11, 141 St. George’s Terrace Perth Western Australia 6000 P O Box F317 Perth Western Australia 6001 Telephone: (08) 9264 1444 Fax: (08) 9321 2410 Issue date: 6 May 2009 KSL Library Getting legislation drafied and enacted Abbreviations used in this document— DOTAG Department of the Attorney General DPC Department of the Premier and Cabinet DTF Department of Treasury and Finance EERC Economic and Expenditure Reform Committee (of Cabinet) LSCC Legislation Standing Committee of Cabinet PCO Parliamentary Counsel’s Office PSC Public Sector Commission SLP State Law Publisher Parliamentary Counsel’s Office (WA) KSL Library ~ Getting legislation drafied and enacted A. Acts of Parliament See Appendix A to this section for a flow diagram outlining the process for the drafting and enacting of government Bills. 1. The need for legislation Arises from-— 0 election platform or new policy of the Government 0 uniform legislation 0 public service administrative needs 0 legal advice or court case. 2. Formulation of Government’s legislative programme At the start of each year short descriptions of proposed legislation are— . prepared by departments and organisations under the control of a Minister 0 collated by that Minister's office 0 sent to the Executive Officer, Parliamentary Services Branch, DPC. Cabinet, on the advice of the LSCC, decides which legislative proposals will be included in the Government’s legislative programme for that year and assigns priority ratings to them. 3. Developing a proposal for legislation This involves-— - considering whether the proposed legislation is necessary bearing in mind the purpose of legislation is to— o regulate the affairs, rights and liabilities of people 0 impose duties on people 0 give people powers they do not already have 0 consulting with interested people or bodies 0 researching the legislation of other places - seeking legal advice where appropriate - considering the financial and resource implications and, if need be, consulting DTF and referring the matter to the EERC (see Appendix C) o if the proposed legislation will create a statutory body, consulting the PSC and, if need be, DTF o considering accountability issues and, if need be, consulting the PSC and DTF - deciding whether the proposed legislation will or may restrict competition and if so conducting a review of the proposal in accordance with the Competition Policy Agreement as required by the Premier's Circular 2005/13 (27 Oct 2005) 1 o if a legislative proposal involves an extension or reduction of the jurisdiction of the Supreme Court, District Court, Magistrates Court, Children’s Court or State Administrative Tribunal, the proposal must be referred to— 1 See .wa. gov.au/PSMD/Govemance/PremiersCirculars and . Parliamentary Counsel’s Office (WA) Page 3 of 18 KSL Library Getting legislation drafted and enacted Executive Director, Court and Tribunal Services, Department of the Attorney General, Level 17, 26 St Georges Terrace Perth. (Tel: 9425 7400) so that it can be considered and approved by DOTAG and the relevant court or tribunal. If the proposal involves a legislative scheme of any complexity, the approval must be obtained before drafting takes place. Note that this requirement does not apply to legislation that does no more than: - create a new offence or alter or remove an existing offence; or - retain existing jurisdiction in the course of enacting provisions in substitution for existing provisions. Cabinet should not be asked to approve unnecessary legislation. In particular proposed legislation should not— provide for a matter if the matter can be done administratively provide for a matter if the matter can be done under an executive (or prerogative) power possessed by a Minister (to do so might displace or restrict the executive power) set out the functions of a Minister unless there is a sound reason to do so. 4. Proposal put to Cabinet by Minister responsible The Cabinet submission (or minute) for approval for legislation to be drafted—— explains in general terms— - the background to the proposed legislation - why the proposed legislation is needed o the intended effect of the proposed legislation explains any urgency for the legislation seeks Cabinet's approval for the necessary Bill or Bills to be prepared by Parliamentary Counsel unless there are exceptional circumstances, is accompanied by drafting instructions for the proposed legislation (see Appendix B and 5 below) should not seek approval to print and introduce the legislation except in special cases (eg. government agreement Bills) or in exceptionally urgent circumstances. 5. Drafting instructions for the proposed legislation Drafting instructions— are prepared or overseen by a person (the instructing officer), a very senior officer of the department concerned, who is totally conversant with the legislative proposal and its background and who is able to make or readily obtain decisions on policy should not be finalised until appropriate consultations have been conducted with persons and bodies likely to be affected by the proposal (inside and outside the Government) explain in specific terms and in detail the matters to be dealt with by the proposed legislation. DOs— Parliamentary Counsel’s Office (WA) do use ordinary plain narrative English to explain in detail what is wanted do refer to other WA legislation, or legislation from other places, if it may assist in the drafting Page 4 of 18 KSL Library Parliamentary Counsel’s Office (WA) - Getting legislation drafted and enacted 0 do deal with the effects of the proposed legislation on— 0 existing WA legislation (e.g. consequential amendments) 0 existing situations (e.g. need for transitional or saving provisions) o in a case where the proposed legislation will or may restrict competition, do say if a review has been done in accordance with the Competition Policy Agreement as required by the Premier's Circular 2005/13 (27 Oct 2005) 2. DON’Ts— 0 don’t repeat the material in the Cabinet submission 0 don’t set out drafting instructions in the form of a lay draft of legislative provisions or otherwise attempt to draft the legislation wanted 0 don’t write preliminary or incomplete instructions hoping to complete them orally 0 don't include copies of WA legislation (PCO has it). Cabinet approves the drafting of the proposed legislation If Cabinet approves the submission, Cabinet sends a copy of Cabinet's decision and the associated submission (which may include drafting instructions) to PCO. After Cabinet has approved the drafting of legislation, drafting of it will usually not proceed unless— o the legislation has a priority rating (see 7 below); and o PCO has been sent a formal request to draft the legislation by the department responsible for the legislation (see 8 below). The proposed legislation must have a priority rating A priority rating for legislation may have already been assigned by Cabinet when setting the legislative programme (see 2 above) or, in rare cases, when it approves drafting of the legislation. But in most cases legislation will not have a priority rating at the time Cabinet approves drafting. If there is no current priority rating, the Minister responsible must send the Cabinet decision sheet and submission and drafting instructions to the Executive Officer, Parliamentary Services Branch, DPC, with a request that the LSCC give the legislation a priority rating (see Appendix B). FCC to be requested to draft PCO must be sent (by post or fax, not by email) a formal request to draft the necessary legislation by the department concerned in order to commence drafting. This applies in every case and should be done immediately: there is no need to wait for a priority rating to be given (see 6 above). The formal request must— . refer to the date of Cabinet's approval to draft (no need to include a copy as PCO is sent them by Cabinet) 0 include the name, address ,telephone and fax numbers and email address of the instructing officer - attach— . drafting instructions (see 5 above) even if they accompanied the Cabinet submission See and flwa.gov.au/cms/uploadedFiles/NCP_Guidelines_Legislation_Review.pdfi Page 5 of 18 KSL Library Getting legislation drafted and enacted 10. 11. Parliamentary Counsel’s Office (WA) 0 background material that will assist the drafter to understand the subject matter involved - any legal opinion that may assist - attach or, if it is available on the internet, refer to— . legislation from other places if it is to be used as a model 0 any decision of a court that may assist be sent or delivered to——- Parliamentary Counsel, Parliamentary Counsel’s Office, 11th Floor, 141 St George’s Terrace, Perth, WA, 6000 [P 0 Box F317, Perth, WA, 6001] Tel: 9264 1444 Fax: 9321 2410. On receiving the formal request, PCO will notify the instructing officer by email of the name of the drafter(s) who will do the drafting. The proposed legislation is drafted by PCO Drafts of the proposed legislation are produced for comment until it is acceptable to the instructing officer and the drafter is satisfied that it is suitable to be introduced to Parliament as a Bill. How quickly proposed legislation is drafted depends on— o the priority rating assigned to it by the LSCC - how well thought out and written the drafting instructions are 0 how conversant the instructing officer is with the subject matter - how quickly the officer answers questions by the drafter and comments on drafts produced for comment 0 how complex the subject matter is and how long the proposed legislation needs to be 0 how much work with the same or a higher priority PCO has. Role of the instructing officer in the drafting process It is the job of an instructing officer— - to respond promptly to requests for clarification or further information made by the drafter - to carefully and methodically examine and check each draft in detail to see that it accurately reflects the drafting instructions and to see that it will work in practice 0 to constructively criticise each draft 0 if additional or revised instructions are required by the drafter, to give them in writing. Draft Bill put to Cabinet for approval to print by responsible Minister When drafting is completed, the Minister submits the final draft to Cabinet for approval to print the Bill and introduce it into Parliament. It is the instructing officer's job to prepare the Minister’s Cabinet submission seeking that approval. The submission— - refers to Cabinet's approval for the legislation to be drafted and attaches a copy of the drafted Bill 0 identifies any material changes to the proposal for legislation that have occurred since Cabinet gave its approval to draft the legislation Page 6 of 18 KSL Library Getting legislation drafted and enacted 12. 13. 14. 15. 16. 17. Parliamentary Counsel’s Office (WA) - seeks Cabinet’s approval to print and introduce the Bill into Parliament. Cabinet approves the Bill’s printing and introduction and notifies PCO Instructing officer may have to brief Government and Opposition MPs Printing the Bill PCO— - arranges for the Bill to be printed by the SLP o prepares and sends to the relevant Minister a notice of motion to introduce the Bill to the Parliament - arranges for a Governor’s message to be obtained under the Constitution Acts Amendment Act 1899 s 46(8) if that is appropriate. The instructing officer must notify PCO immediately if there is any reason why printing of the Bill should be delayed. The department responsible for a Bill pays for printing it. The SLP sends the instructing officer an invoice for the cost. Introduction and passage through Parliament The instructing officer— 0 prepares the second reading speech for the relevant Ministers - prepares an explanatory memorandum for the Bill as required by the Standing Orders of the Legislative Assembly explaining the background to and the reasons for each clause of the Bill and, if necessary, the relationship of a clause to other clauses in the Bill 0 attends Parliament to assist the relevant Ministers when the Bill is being considered by the Parliament. The drafter, if requested to do so— . attends Parliament to assist the relevant Ministers with legal matters when the Bill is being considered by the Parliament 0 drafts any amendments in committee to the Bill that may be required by the relevant Ministers. The Bill must pass through the first, second and third reading stages of each House of Parliament and may have to be considered by a committee of a House. Assent If both Houses of Parliament pass the Bill, copies of the Bill incorporating all amendments that were made to it by the Houses are prepared by the Clerk of the Parliaments and forwarded through PCO and DPC to the Governor for assent. Executive Council is not involved in the assent procedure. When assented to, a Bill becomes an Act of Parliament. Printing and publication of the Act The SLP prints and sells copies of an Act once it has been assented to. As soon as practicable after an Act is assented to, a copy of it is put on and can be downloaded from the SLP website ( ). Page 7 of 18 KSL Library Getting legislation drafted and enacted 18. 19. 20. 21. Parliamentary Counsel’s Office (WA) Commencement of an Act When an Act comes into operation depends on what it says— 0 if the Act is silent about commencement, it will operate 28 days after assent - otherwise the Act might say that it comes into operation— a on the day after the date of assent a on a stated date before assent (i.e. retrospectively— this is rare) 0 on proclamation - a combination of the above. If an Act is to come into operation on proclamation it is often because matters have to be attended to before the Act can come into operation, e.g.—— - subsidiary legislation (regulations etc.) may have to be drafted and made - administrative structures may have to be set up - people may have to be appointed to statutory positions. Proclamation A proclamation for the commencement of an Act—— 0 is a document drafted by PCO on written instructions from the relevant department that have been approved by the Minister responsible for the Act 0 must be signed by the Minister and sent to Executive Council with a draft Executive Council minute (drafted by PCO) 0 is made by the Governor with the advice and consent of Executive Council - states when an Act or some of it comes into operation a must be published in the Government Gazette before it has effect (the instructing officer arranges this). Publication of amended versions of Acts If an Act amends another Act, the SLP website ( ) will show the other Act as amended as soon as practicable after it is amended. Reprints of Acts Reprints of Acts are published from time to time under the Reprints Act 1984. The current versions of all Acts (and some past versions) can be viewed on and downloaded from the SLP website ( ). Page 8 of 18 KSL Library Getting legislation drafted and enacted ‘. ‘ Appendix A—Process for drafting and enacting government Bills . mam“ "nommm 5m mawmmwmwmmum * pmpandm » mm“. WNW of {wind 910de may We! ask: LSCC to: a WWWWW I 1 x mm m PCG. wedge: the _ m“ m - Bwkgromd mid —Conthdotaisoi0 cmmmummwan prooonwlilfltedtmdsmwmw emgauwcmmmmmmm LSCC Wmcmmwmwmom V .. ““3" ' " ' A ‘mswweamm’w‘ Wmmwovdmuflmodmh m (/4 P00 unmang Agency «spamming: a Cabinet cumulus «m Bil (__ "1W abdomidmdi’fi nwwmmmupmmamzw meswwwomiond Wm that D mega“ ' mean and )“GOVMMI'S «unofficial Balsam be mama inLC SLP pm: Bill and and: to PM»! “\ ~ Wammsailmd copies ll. WW6 =-‘: P Em woo”: 131.2114 Wait : ' rm“ ----- -- Mmmwwfidwwsamm' ear-side!“ in m a In com“, mmumw BfipumbgLAmdLC E Mm: mm if 11th i, , CdPWSLPwW «mmmfldmm (061cc SLPm:wmtoCoéP.uho m Mama {(3 pf ’ c .1 P: osmium PM . W“ , 5" 1- awrcu‘onsmmmsu; co: mum We!“ on c 3 up a c: Wuamwmum Db: 01 Monica nae-:mcm um‘az’afigm“mm l0: Mum 0mm mum“ mlefiMAuably , .t , , ,, g) m “M” W“ t . Madman. xfiummifiwmw m: ' mmmm We «WWW m 99;); p..me cm, W. othu musmwwms no: WWngonc zawdwum.wm sutuun comm “Msmkmwmmw EOWS OCCUKS W Parliamentary Counsel’s Office (WA) Page 9 of 18 KSL Library Getting legislation drafted and enacted Appendix B—Legislation Standing Committee of Cabinet (LSCC) Terms of reference Drafting priorities— > To set drafting priorities for Bills approved for drafting by Cabinet and as a consequence determine the timing of their introduction into Parliament. Adequacy of instructions— > Determine if drafting instructions are adequate and accurately reflect the intent of Cabinet Minutes and Decisions. Conflicts— > Resolve any conflicts that may exist before seeking Cabinet approval to print Bills. Legislative timetables— > Establish timetables to assist the Leader of the House in the Legislative Assembly and Leader of the Government in the Legislative Council in managing the flow of legislation between the Houses of Parliament. Advice to Cabinet— > Provide Cabinet with summaries of LSCC decisions for endorsement. Operation Membership— > Leader of the House in the Legislative Assembly (Chair). > Leader of the Government in the Legislative Council. > Attorney General. > Deputy Leader of the Parliamentary National Party of Australia (WA). Other attendees— Also in attendance at LSCC meetings are — > Parliamentary Counsel. > senior representative from the Office of the Premier. > Manager, Cabinet and Parliamentary Services Branch DPC. > Other ministerial officers on an “as required” basis. Matters referred to LSCC— > All Cabinet submissions for approval to draft legislation following Cabinet’s initial approval to draft the Bill. > Any other matter referred to LSCC by Cabinet. > Other matters which are considered by the Chair to be of sufficient importance to warrant the Committee’s attention. Operation— > Bills approved for drafting by Cabinet will be listed for consideration by the LSCC for its next meeting. > Using the Cabinet Minute, Cabinet Decision and drafting instructions as a guide, the LSCC will allocate a drafting priority and schedule the proposed Bill into the legislative program. > Using the following priority coding system assists in this regard— PRIORITY DESCRIPTION CODE Assigned by the Premier for urgent Bills to be given priority above all others. AA Bill to be introduced in the Autumn Sittings of Parliament and be passed before the end of the Autumn Sittins. Parliamentary Counsel’s Office (WA) Page 10 of 18 KSL Library Getting legislation drafted and enacted AB Bill to be introduced in the Autumn Sittings of Parliament and be passed before the end of the Spring Sittings in the same year. Bill to be introduced in the Spring Sittings of Parliament and be passed before the end of the Spring Sittings. Bill to be introduced in the Spring Sittings of Parliament but not necessarily passed before the end of the Spring Sittings in the same year. A10 Bill to be introduced in the 2010 Autumn Sittings of Parliament. Bill to be introduced in the 2011 Spring Sittings of Parliament. Special long term projects for introduction in future years which require drafting in the current year. To be restricted to very large exercises. BB BX > It should be noted however, that it is unlikely that the LSCC will allocate a drafting priority to a Bill if the instructing agency for that Bill has not initiated contact and provided Parliamentary Counsel’s Office (PCO) with detailed drafting instructions. > During the course of preparing a Bill, PCO may request further drafting instructions from the instructing agency...
View Full Document

  • Spring '16
  • Law

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern