What is the role of the government in making and enforcing the law?

Contributed by Hannah Lee and current to March 2022

All levels of government in Australia have a role in making and enforcing the law.

Making the law in Commonwealth Parliament

The Australian Commonwealth Parliament makes laws by passing legislation. Legislation is created by Parliament transforming a bill into an Act. This transformation is called the 'legislative process'. It begins in the House of Representatives.

In the House of Representatives:

1. Giving notice

Any member intending to introduce a bill communicates this intention in writing to the Clerk of the House. The Clerk then lists the notice paper for the next sitting day.

2. First reading

The Clerk announces the bill and reads its short title. A bill is then introduced by the member, who gives the Clerk a signed copy of the bill and supporting documents. The Clerk then reads the long title of the bill. All members receive a copy of the bill and its supporting documents. The copy of the bill is also published on the Parliament House website (www.aph.gov.au/bills) for members of the public to view.

3. Second reading

The member who introduced the bill makes a speech to the House, supporting the bill and submits 'That this bill be now be read a second time'. Members then debate the principles of bill before voting on whether the bill will 'now be read a second time'. If most members agree with the introducing member, the House has agreed to the bill in principle. The bill then proceeds to the House Committees.

4. House Committees

The relevant House Committee makes a public enquiry into the bill and reports to the House of Representatives.

5. Consideration is detail

Members discuss the bill in detail and consider any proposed changes. Changes to specific sections are negotiated.

6. Third reading

The introducing member, in an address to the house, introduces the final vote by saying: 'that this bill be read for a third time'. Members then vote on the final version of the bill. If there is majority support for the bill, the Clerk reads the long title of the bill. At this point, the bill has been passed in the House of Representatives.

Getting the bill to the Senate

The Clerk certifies that the bill is what the House of Representatives has passed and delivers the bill to the Senate.

In the Senate:

7. First reading

The bill is introduced to the Senate.

8. Second reading

Members debate the general principles of the bill, before voting on whether the bill should proceed. If the vote is successful, the bill proceeds to the relevant Senate Committee.

9. Senate Committees

The Senate Committee makes a public enquiry into the bill and reports back to the Senate.

10. Committee as the whole

Senators discuss the bill in detail and negotiate any proposed changes.

11. Third reading

Senators vote on the final version of the bill. If there is majority support for the bill, the bill is passed in the Senate. The bill then proceeds to the Governor-General.

12. Royal Assent

The Governor-General signs the bill on behalf of Queen Elizabeth II. Royal Assent is required because the Australian continent was property of the British Crown. Today, Australia remains a member of the Commonwealth. This means that whilst our country has become politically independent of the United Kingdom, legally, our laws must first be approved by Queen Elizabeth II to be valid. This is because the Queen technically remains the Australian Head of State.

The Governor-General is Queen Elizabeth II’s representative in Australia. The Governor-General exercises the Queen’s powers, specifically, granting permission or ‘Royal Assent’ to everything which the Commonwealth Parliament enacts into law. The Governor-General, appointed by the Queen on the advice of the Prime Minister, generally serves for five years.

Once the bill is signed by the Governor-General, it becomes an Act of Parliament. The Act will become law once it has received Royal Assent. Alternatively, an Act will become law once it receives Royal Assent and its date of commencement passes. A date of commencement is a specified date on which the Act will become law. All Acts will specify a date of commencement. The date of commencement for most Acts is 'on the day on which this Act receives the Royal Assent'. Otherwise, the Act will become law 'on a day and at a time to be fixed by Proclamation'. This means that Parliament will determine when, after the Act receives Royal Assent, the Act becomes law. For example, the Australia Act 1986 (Cth) received Royal Assent on 4 December 1985 but became law on 3 March 1986.

Acts are described by a name, a date and which parliament made it. These details enable Acts to be located. For example, take the ‘Family Law Act 1975 (Cth)’.

• ‘Family Law Act’ is the Act’s name. The name suggests that this Act is about family law;
• ‘1975’ is the year the act was passed in Parliament;
• ‘Cth’ is an abbreviated version of ‘Commonwealth’. This means that the Act was made by the Commonwealth Parliament. The Act therefore only applies to Commonwealth jurisdiction.

In addition, the purpose of the Act is often stated in its Preamble, Long Title or an Objects and Aims section.

Each Act will also contain a Dictionary or Definitions section. Acts sometimes give legal meanings to ordinary words. For example, the ordinary meaning of ‘built-up area’ might mean an area, such as a footpath or road, which is built-up with asphalt. However, in an Act, ‘built-up area’ might be defined to mean an area within a certain distance of a city centre.

Some Acts are repealed (removed) or amended (changed) by Parliament. The ACT Legislation Register records whether ACT Acts are repealed or in force. The the Federal Register of Legislation records whether federal Acts are repealed or in force.

Parliaments sometimes delegate their legislative power to another authority such as a parliamentary Minister or a government agency . This is done because making, repealing or amending Acts of Parliament takes time and because some technical matters are more appropriately dealt with by the agency involved. The legislation created by the authority is known as ‘ subordinate legislation’.

Changes to subordinate legislation are published in government gazettes together with changes to Parliamentary Acts. A gazette is an official notification of government actions and decisions. Both the ACT and Federal Governments publish official gazettes. ACT Government gazettes are published every four months, whilst regular Federal Government gazettes are published weekly.

Making law in the ACT and the States

The ACT and State Parliaments have a different law-making process to the Commonwealth. This is because the Commonwealth Parliament makes laws for the entire country, whereas States and Territories only make laws for their own jurisdictions.

ACT

Until it was granted self-government, the ACT was administered by the Federal Government. Federal Parliament gave the ACT self-government by passing the Australian Capital Territory (Self-Government) Act 1988 (Cth). Section 8 of the Australian Capital Territory (Self Government Act) 1988 (Cth) requires the ACT to have a Legislative Assembly (instead of a parliament), which has the power to make 'laws for the peace, order and good government of the Territory'. The ACT legislative process is very similar to that of the Commonwealth Parliament. The key differences are that ACT Acts do not require Royal Assent and the ACT Legislative Assembly cannot pass Acts which contradict the Human Rights Act 2004 (ACT).

Section 122 of the Constitution allows the Federal Parliament to override any laws made by territory parliaments. This power has been used on a few occasions. For example, in 2006, the ACT Legislative Assembly passed a bill to allow two people, including same-sex couples, to enter into a civil union, or partnership, with the same legal rights under ACT law as marriage. The federal government opposed the Civil Unions Act 2006 on the grounds it undermined the unique status of marriage. At the time, the ACT Self-Government Act included a provision permitting the Governor-General to disallow, or overturn, a law passed by the ACT Legislative Assembly within six months of it coming into effect. On 13 June 2006, the Governor-General, acting on the advice of the Cabinet (the Prime Minister and top-level ministers), disallowed the Civil Unions Act 2006.

The States

State parliaments can make laws on almost anything, except the topics listed in section 51 of the Constitution.

The States maintain their own parliaments and are more independent of the Federal Government than Territory governments. The States also have their own constitutions, which can be changed with a vote in Parliament. Instead of a Governor-General, each state has a Governor, who provides Royal Assent to state government Acts.

Although State, Territory and Federal parliaments are largely independent of one another, no State or Territory parliament pass a law which is inconsistent with the Australian Constitution. If a State or Territory passes an inconsistent law the law is void to the extent of any inconsistency. The High Court is the deciding body for these types of cases. For example, in 2013 the High Court decided that the ACT same-sex marriage law was invalid because it was inconsistent with the federal Marriage Act 1961 (Cth).

Enforcing the law

Laws are enforced by the ‘executive branches’ of governments and by the Courts.

Federal executive agencies carry out a range of duties related to Federal Government responsibilities, ranging from maintaining the immigration system and organising elections. Executive agencies are led by Commonwealth Ministers, who are also parliamentarians. For example, Federal Department of Human Services is part of the executive branch of the Federal Government.

The ACT executive is responsible for community services such as rubbish collection, development approvals and libraries. The ACT has six government directorates. These directorates provide ACT residents with government services. They are:

Chief Minister, Treasury and Economic Development Directorate
Tel: 13 22 81 or (02) 6207 5111
Website: http://www.cmd.act.gov.au/

ACT Government Community Services Directorate
Tel: 13 3427
Email: csd@act.gov.au
Website: http://www.communityservices.act.gov.au/

The Environment, Planning and Sustainable Development Directorate
Tel: 13 22 81
Email: epsddcomms@act.gov.au
Website: http://www.environment.act.gov.au/

ACT Health Directorate
Tel: (02) 5124 4444
Email: healthmedia@act.gov.au
Website: http://www.health.act.gov.au/

Justice and Community Safety Directorate
Tel: 13 22 81
Email: JACSenquiries@act.gov.au
Website: http://www.justice.act.gov.au/

Transport Canberra and City Services
Tel: 13 22 81
Website: http://www.tccs.act.gov.au