Before any new legislation is introduced to Parliament by the government, it must be approved by Cabinet. Regulations must be approved by Cabinet and then made by the Governor.
There are a number of steps in the Cabinet process for developing legislation:
- Firstly, seek approval to draft new or amended legislation (Bills are drafted by Parliamentary Counsel).
- Secondly, seek approval to introduce a Bill into Parliament.
- Lastly, once a Bill is passed by Parliament and has becomes an Act and assented to by the Governor, the final step is to commence the Act and, if it is new legislation (rather than an amendment to existing legislation), commit the Act to a Minister.
There are specific requirements for these processes.
When an Act commences on the date of assent or a commencement date is specified, no further action is required to bring it into operation. But if the Act states that it will come into operation on a day to be fixed by proclamation, a submission to Cabinet is required.
If the Act is new (rather than an amendment an existing Act) a Cabinet submission is required to initiate a proclamation committing the administration of the Act to a Minister. The committal and commencement of an Act can be contained in one submission.
Specific wording is required for submissions dealing with commencement or committal.
Commencement of an Act
The body of the submission must address the following matters:
- when both Houses of Parliament passed the Bill
- when the Act was assented to by the Governor
- the main purposes of the Act and its likely impact on the community
- whether parts of the Act have already been brought into operation and when this occurred
- the reasons for bringing only certain provisions into operation
Committal of an Act to a Minister
Only principal Acts (not amending Acts) are committed to Ministers. If administration of the Act is being changed, the reasons for that change should be clearly explained in the submission.
The recommendation section of the submission must include reference to:
- His Excellency the Governor in Executive Council issuing the proclamation
- the full title and year of the Act that is to be committed
- the Ministerial portfolio to which the Act is to be committed
- the Administrative Arrangements Act 1994.
Regulations are made by the Governor in Executive Council following Cabinet approval. All regulations are published in the Government Gazette on the same day as the Executive Council meeting at which they are made. Once made, they are laid before both Houses of Parliament within six sitting days and are considered by the Legislative Review Committee.
Regulations can be developed in one of two ways: most matters can follow a one-step process (that is a single Cabinet approval), but those which are contentious, represent a change in government policy, or will have an impact on a number of different ministerial portfolios require a two-step process (consideration by Cabinet at two points). The appropriate process can be determined through consultation with Parliamentary Counsel and Cabinet Office.
The minister asks Parliamentary Counsel to prepare draft regulations using the drafting instructions template.
Once the regulations are settled by Parliamentary Counsel, the minister seeks Cabinet approval of the draft regulations and recommends that the Governor make them in Executive Council.
Use the one-step process checklist to guide your submission.
The two-step process must be used for complex issues, issues that represent a change in government policy or issues that will affect two or more ministerial portfolios.
A Cabinet submission is prepared seeking Cabinet's approval to draft the regulations. Drafting instructions must be included as an attachment, using the drafting instructions template.
Following Cabinet approval, Parliamentary Counsel drafts the regulations.
Cabinet approval is then sought to recommend that the Governor make the regulations in Executive Council.
Use the two-step process checklist to guide your submission.
Documentation to be provided to Executive Council staff
In addition to ministerial offices lodging the Cabinet submission, the following documents must be submitted in hardcopy to Cabinet Office (to accompany the second submission if following the two step process):
- two sets of each regulation
- Certificate of Validity for each set of regulations (prepared by the Office of the Parliamentary Counsel)
- Certificate of Early Commencement (if applicable) for each set of regulations (prepared by the Office of the Parliamentary Counsel)
- 14 copies of the Legislative Review Committee report.
Report to the Legislative Review Committee
The report to the Legislative Review Committee should contain all information required for the committee to consider the regulations, including:
- policy considerations which resulted in the development of the regulatory or deregulatory proposal
- a summary of any administrative, legal or other arrangements established under the proposed regulations
- appropriate information on the financial impact of the proposal (if available)
- an outline of the consultation including who was consulted, when they were consulted and their views
- the reasons for issue of a Certificate of Early Commencement (if applicable).
Where a proposed regulation will vary a government fee or charge, the basis of the variation should be stated in the report. Contact details of an agency officer should also be included.
If a report does not comply with the requirements set out above, the committee will recommend disallowance of the relevant regulations.
More information can be found in PC034 Procedures in relation to the referral of subordinate legislation to the Legislative Review Committee.
When do regulations commence?
If regulations do not specify a commencement date, they will come into operation four months after the day they are made.
If the regulations must come into operation early, a commencement date can be specified. In this instance, a Certificate of Early Commencement, prepared by Parliamentary Counsel, is required.