Bill: A proposed law to be considered by parliament
Delegated legislation: Law making powers given by parliament to subordinate bodies.
Legislation: An act of Parliament or piece of delegated legislation
Legislative process: The process used by parliament to pass laws
Parliamentary counsel: A public servant responsible for drafting legislation at the request of a member of parliament (usually a minister)
Private members bill: A proposed law introduced by a member of parliament without cabinet approval
Proclamation: Sometimes an act of parliament does not come into force until a date fixed by the crown, when the date is determined, an official announcement referred to as a proclamation is made.
Royal assent: The final stage in the approval of a Bill, after a bill has been passed by both houses it must be approved by the crown.
A government Bill is a Bill that has been approved by Cabinet. These Bills are introduced either as a result of government policy or after recommendations put forward by government departments. (A Bill concerned with government policy is sometimes referred to as a public Bill).
Government Bills include financial Bills. These Bills are anything relating to government spending. They must always start in the lower house and any changes to the Bill, must be made in the lower house. Examples of financial bills are the Budget (which endorse government spending), Supply, Works and Services etc
Private Members’ Bills
Any member of parliament can introduce a Bill without Cabinet support. A Bill may be introduced by a member of the opposition or by a government backbencher. These Bills are known as private members’ Bills. These are; however, largely unsuccessful as members of parliament will often vote according to party policy. Therefore, a Bill introduced by the opposition will usually be defeated.
Sometimes it is necessary to pass a Bill that affects only a small proportion of the community. These are known as private Bills and are usually passed without opposition. E.g the Uniting Church Act affects only a small portion of the Australian community.
Drafting is a process of framing the words of a proposed law in the form of a Bill. The parliamentary counsel (also known as the parliamentary draftsperson) is a public servant and lawyer who is responsible for drafting legislation.
Time constraints – sometimes the parliamentary counsel’s department faces a heavy workload during any sitting of parliament. Sometimes, they are also required to work quickly. Consequently, laws can be poorly drafted.
Legal terms – sometimes words given specific meanings by the law may differ in their meaning from everyday usage. A parliamentary counsel needs to be aware of the legal meaning of different terms. Consider the use of the words, robbery and burglary; these are used as if they mean the same thing; however, the Crimes Act 1958 makes a distinction between these two forms of stealing.
Possible interpretations – Counsel needs to be aware of how the courts might interpret words and terms. The way in which courts interpret terms can impact on the range of circumstances to which the law applies. The case of Director of Public Prosecutions v. Toni Williams considered the term, ‘a police station or any other place’ (see p77 of Making and Breaking the Law).
Clear advice – Parliamentary counsel relies on the advice given by the relevant minister. However, the minster may not be aware of the range of situations to which the Bill may apply. Such poor communication may result in loopholes or omissions. Parliamentary counsel may be an expert in drafting legislation, but not necessarily in the area to which the legislation may apply.
Future circumstances – Counsel also attempts to draft legislation that will anticipate future circumstances. To achieve this, legislation is drawn in general terms. The problem with this…