Week 2 – Process of creating legislation
This weeks readings have been very interesting, in as far as learning a little bit about how legislation is drafted, and the process of how it goes from a Bill to an Act. This ties in well with the other course I am studying this term, LAWS11057, which has been talking about the history of the legal system, and the structure of the Australian legal system, and is about to move into the sources of law in Australia.
In Australian, the constitution is the font of all legislative power – it dictates the separation of powers – namely the role and powers of the Parliament, the Executive Government, and the Judicature. Federal power is limited to the areas listed in s51 of the Constitution, and residual power goes to the States.
There are two main drafting styles used when creating legislation – which Lisbeth Campbell descriptively refers to as being ‘fussy’ and ‘fuzzy’ . The ‘fuzzy’ style is traditionally used in civil law, and is clear & easy to understand, and more accessible to the general public, but give judges broad discretion in how to interpret it, and can result in varying interpretations, resulting in inconsistent case outcomes. The ‘fussy’ style is traditionally used in common law as it is precise, comprehensive, specific and detailed, and judicial discretion is contained, but it results is large amounts of law – making it more inaccessible, and is difficult to comprehend as it has more complicated and elaborate provisions. So it is clear that neither style is the ‘best’, and some compromise is needed. Hence the move towards Plain English drafting of legislature.
Plain English drafting has come about due to the dislike in the reading and hence knowledge of law by the general population, and even of those whose profession it is is to work with it – lawyers. It favours a simple and straightforward style, direct and familiar language, removal of unnecessary words and avoidance of long and complicated sentences. These changes make the resulting laws more comprehensible, and accessible, but does have the issue of how to deal with perceived changes to laws due to the changes in wording – but the Acts Interpretation Act 1901 does have provision for this, by instructing that just because the wording has changed, the meaning of the laws should no be interpreted differently. New laws are naturally written in Plain English right from the onset, and courts will most likely adapt and develop new conventions over time as to how they interpret these laws.
Finally, as part of the discussion on draft conventions, political dimensions and parliamentary proceedings, the process of drafting a bill, to it becoming an Act, and thus a enforceable piece of legislation was examined. Unsurprisingly, draft bills have a standard form – such as a Long title, the words ‘Parliament enacts’, and a standard set of words and phrases used in bills. There is explanatory material to supplement the bill, as it must be in the exact form it will be passed in – no side notes or comments! When in a bi-cameral system , the bill must pass both houses of parliament (a unicameral system only has one house, so Bills will usually pass if the party that puts it forward has majority). It will be read three times – the first time to simply introduce or ‘table’ the bill. On the second reading, it is debated – this is when the opinion of the government and the public is with regards to the proposed legislation is made known. On the third reading, the bill is voted upon. It is then sent to the other house if passes, where the process is repeated. If the bill passes both houses, and is settled, it is presented to the Governor General by the Attorney-General for assent, at which point it becomes an Act. Throughout this whole process, there may be changes and amendments to the legislation before it reaches its final form that is acceptable to all parties concerned.
In the unicameral system, since there is only one house of parliament, there are concerns that legislation can be passed without suitable input from the public. Due the nature of a representative democracy, although parliament is ultimately accountable to its citizens, the day to day running of government does not directly involve the public in the decision-making process. Because stages such as review by an appropriate committee are not mandatory, the viewpoints and concerns of the general public and other relevant parties are not considered. A recent piece of legislation which illustrates this point is the Vicious Lawless Association Disestablishment Act 2013, and due to the lack of debate and community consultation, this legislation is now in jeopardy of being ruled invalid by the High Court on the grounds that it is unconstitutional.