Understanding how laws are made place each step of the process in the right order

Sources of law

Laws of the ACT are drawn from two main sources: laws made by the Legislative Assembly (legislation and legislative instruments made under legislation); and the common law based on decisions handed down by the courts.

Section 23 of the Self-Government Act (Cwlth) gives the Legislative Assembly the power to make laws for ‘the peace, order and good government of the Territory’. Bills that are passed by the Assembly become acts, which are the primary form of law in the ACT.

Some acts allow the government, through its directorates and agencies, to make other kinds of law known as legislative instruments. Legislative instruments are sometimes referred to as delegated legislation or ‘subordinate law’.

Before self-government, ordinances made by the Governor-General under the Seat of Government (Administration) Act 1910 (Cwlth) were the main form of legislation made for the ACT. Most of the ordinances in force at self-government have been converted into acts.

Common law is based on the decisions of judges, originally from England, stretching back over 800 years. Rulings by judges have allowed a vast number of legal precedents to be established so that if a court ruled that the law would be applied to certain facts and those facts occurred again, the same ruling should apply. This provides a greater degree of certainty and consistency for how the law applies.

Bills passed by the Legislative Assembly, may change or abolish some aspects of common law.

More information on the sources of ACT law can be found on the ACT Legislation Register website.

Bills

A bill is a proposed law and is, more often than not, presented to the Assembly by ministers. Bills presented by non-executive members are known as private members’ bills.

In order for a bill to become an act, a majority of members in the Assembly must vote for it to pass.

Legislation register

Bills of the ACT are not given royal assent (as Commonwealth legislation is by the Governor-General or state legislation is by a state governor). The Clerk of the Assembly certifies a copy of the bill as passed, and the Speaker asks the Parliamentary Counsel to notify the act on the ACT Legislation Register.

Once an act is notified it becomes law.

The ACT Legislation Register is available online.

Subordinate legislation

Subordinate legislation is a law that is not made by a direct vote of the Assembly, but by other entities—often ministers or public servants—to which the Assembly has delegated its law-making power. Disallowable instruments, notifiable instruments, and regulations are types of subordinate or delegated legislation.

Legislative scrutiny

The Assembly’s Standing Committee on Justice and Community Safety performs a legislative scrutiny role (in addition to examining matters relating to law and order). All bills and subordinate legislation must be examined by the committee to ensure that they do not trespass on personal rights and liberties, and that they comply with the Human Rights Act 2004.

Disallowance of ACT laws

Until 2011, the Governor-General had the power to disallow or recommend amendments to acts that had been passed by the Legislative Assembly.

This has happened only once in the history of self-government. On 13 June 2006, acting on the advice of the then Attorney-General, the then Governor-General disallowed the Civil Unions Act 2006, which had previously been enacted by the Legislative Assembly as a law of the ACT.

In 2011, the Commonwealth Parliament passed the Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Act 2011, which had the effect of removing the Governor-General’s power to overturn or amend ACT laws.

On 22 October 2013, the Legislative Assembly passed the Marriage Equality (Same Sex) Bill 2013. The resulting legislation allowed same-sex marriage ceremonies to take place in the ACT from 7 December 2013. The federal government lodged a claim in the High Court of Australia to challenge the legal and constitutional validity of the act. On 12 December, the High Court decided against the ACT, ruling that only the federal parliament has the power to legislate for same-sex marriage. This act has not been expressly repealed by the Legislative Assembly. It is implied to be repealed because the High Court determined it to have no effect.

ACT legislative process: from a Bill to and Act

Bill development

• A new law is required to deal with an issue
• Ideas for laws come from a variety of sources that can include party policy, election promises, public opinion, public service and inter-governmental agreements
• When an idea for a bill has been agreed to the bill is drafted by the Parliamentary Counsel's Office

Parliamentary process

Stage 1: Presentation

• Bill is programmed for presentation in the Assembly
• Bill is presented by the Minister or Member, along with supporting papers, who moves "That this bill be agreed to in principle"
• Debate on the bill is adjourned until a later sitting day
• The bill is examined by the Standing Committee on Justice and Community Safety (Legislative Scrutiny Role) which examines each bill to make sure it is compatible with the Human Rights Act 2004

Stage 2: Agreement in Principle

• Debate on the Bill resumes
• Assembly Members debate the general principles of the bill, all Members can contribute to the debate
• The Minister or Member who presented the bill closes the debate
• The question "That this bill be agreed to in  principle" is put to a vote of the Members of the Assembly
• To pass this stage the bill needs to have the support of the majority of Members, in the Ninth Assembly this is 13 votes out of 25
• If the bill is agreed to it proceeds to the next stage
• If the bill does not get a majority of 13 votes it does not progress any further and will not become a law

Stage 3: Detail stage

• The detail stage can be skipped if there are no changes required to the bill and there is agreement by Members of the Assembly
• When a Bill is considered in detail this includes each clause, schedule and the title
• Amendments are moved and debated during the detail stage

Stage 4: Agreement

• This is the final question "That the bill be agreed to" or if the bill has been changed during the detail stage, "That the bill, as amended, be agreed to"
• There is no debate during this stage, the bill must pass with a majority support of the Assembly

After a bill is passed by the Assembly

Notification

• The Act is prepared and certified by the Clerk as a true copy as passed by the Legislative Assembly
• The Speaker sends it to the Parliamentary Counsel's Office requesting that it be notified on the ACT Legislation Register
• Once the Act appears on the ACT Legislation Register it becomes a law

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Any member of Congress – either from the Senate or the House or Representatives – who has an idea for a law can draft a bill. These ideas come from the Congress members themselves or from everyday citizens and advocacy groups. The primary Congress member supporting the bill is called the "sponsor". The other members who support the bill are called "co-sponsors".

Step 2: The bill is introduced

Once the bill is drafted, it must be introduced. If a Representative is the sponsor, the bill is introduced in the House. If a Senator is the sponsor, the bill is introduced in the Senate. Once a bill is introduced, it can be found on Congress.gov, which is the official government website that tracks federal legislation.

Step 3: The bill goes to committee

As soon as a bill is introduced, it is referred to a committee. Both the House and Senate have various committees composed of groups of Congress members who are particularly interested in different topics such as health or international affairs. When a bill is in the hands of the committee, it is carefully examined and its chances of passage by the entire Congress are determined. The committee may even choose to hold hearings to better understand the implications of the bill. Hearings allow the views of the executive branch, experts, other public officials and supporters, and opponents of the legislation to be put on the record. If the committee does not act on a bill, the bill is considered to be "dead".

Step 4: Subcommittee review of the bill

Subcommittees are organized under committees and have further specialization on a certain topic. Often, committees refer bills to a subcommittee for study and their own hearings. The subcommittee may make changes to the bill and must vote to refer a bill back to the full committee.

Step 5: Committee mark up of the bill

When the hearings and subcommittee review are completed, the committee will meet to "mark up" the bill. They make changes and amendments prior to recommending the bill to the "floor". If a committee votes not to report legislation to the full chamber of Congress, the bill dies. If the committee votes in favor of the bill, it is reported to the floor. This procedure is called "ordering a bill reported".

Step 6: Voting by the full chamber on the bill

Once the bill reaches the floor, there is additional debate and members of the full chamber vote to approve any amendments. The bill is then passed or defeated by the members voting.

Step 7: Referral of the bill to the other chamber

When the House or Senate passes a bill, it is referred to the other chamber, where it usually follows the same route through committees and finally to the floor. This chamber may approve the bill as received, reject it, ignore it or change it. Congress may form a conference committee to resolve or reconcile the differences between the House and Senate versions of a bill. If the conference committee is unable to reach an agreement, the bill dies. If an agreement is reached, the committee members prepare a conference report with recommendations for the final bill. Both the House and Senate must vote to approve the conference report.

Step 8: The bill goes to the president

After both the House and Senate have approved a bill in identical form, the bill is sent to the President. If the President approves of the legislation, it is signed and becomes law. If the President takes no action for ten days while Congress is in session, the bill automatically becomes law. If the President opposes the bill, they may veto the bill. In addition, if no action is taken for 10 days and Congress has already adjourned, there is a "pocket veto" .

Step 9: Overriding a veto

If the President vetoes a bill, Congress may attempt to override the veto. If both the Senate and the House pass the bill by a two-thirds majority, the President's veto is overruled, and the bill becomes a law.

Many terms above are adapted from Congress.gov. See the full list of legislative terms.