Information for instructors
Prioritisation system for ExCo legislative instruments
Under the Legal Services Directions 2005 the drafting of legislative instruments made or approved by the Governor-General (ExCo legislative instruments) is tied to OPC. These instruments must therefore be drafted by OPC.
To better target OPC’s drafting services for these instruments to government and departmental needs, OPC has developed a prioritisation system for ExCo legislative instruments.
In addition to assisting OPC to meet government and departmental needs, a program for ExCo legislative instruments may also provide benefits to departments by ensuring that they have a more structured approach to the drafting of these legislative instruments. This will also support recent initiatives around improving Commonwealth law. It may also assist departments with broader change management processes related to legislative projects.
The prioritisation process will not affect OPC’s other drafting services such as the drafting of Court Rules or untied work. Agencies can still engage OPC for untied instruments on a fee-for-service basis.
Before each Parliamentary sittings period, the First Parliamentary Counsel will seek bids from departments for ExCo instruments to be drafted in the sittings period. For this purpose, the Autumn sittings period starts on 1 January, and the Winter and Spring sittings periods start as soon as Parliament rises at the end of the previous sittings period. The bids will be due 2 weeks after the deadline for Bills for the sittings period set by the Department of the Prime Minister and Cabinet. The template for the bids is available below. Please note that Commencement Proclamations are not required to be included in bids.
If the priority of an instrument or measure changes or an additional instrument or measure needs to be added to a department’s bid, a variation bid must be provided to OPC. The variation template is available below.
For further information on the prioritisation system, please contact the OPC instrument client adviser for your department. Bids and bid variations can be emailed to firstname.lastname@example.org.
The formats available for download are: PDF | RTF
Handbooks and guides
The Legislative Instruments Handbook
For information about legislative instruments generally, see the Legislative Instruments Handbook.
The Handbook provides information to help Commonwealth rule-makers and agencies manage their instruments efficiently, effectively and in accordance with relevant law. It covers topics that include the following:
- key concepts, including the Federal Register of Legislation and the meaning of rule-maker, legislative instrument and notifiable instrument;
- the drafting and interpretation of instruments;
- the procedures before and after making legislative instruments and notifiable instruments;
- explanatory statements;
- Parliamentary scrutiny of instruments;
- compilations of legislative instruments and notifiable instruments;
- sunsetting of legislative instruments.
Information for Federal Executive Council (ExCo) instruments
If your instrument is an instrument to be made by the Governor-General in Council, please refer to the Federal Executive Council Handbook published by the Department of Prime Minister and Cabinet for information on the making process. It is important to consider the timeframes for this process before starting a drafting project.
Frequently Asked Questions
What is OPC's drafting role?
OPC drafts Bills for introduction into Parliament and subordinate legislation, including instruments to be made by the Governor-General in Council (ExCo instruments). In general, this is done on instructions from government departments and agencies.
Further information about OPC is available on the About OPC page and the OPC's drafting services: a guide for Clients document on the OPC Documents page.
How can I get advice on drafting matters before I give drafting instructions to OPC?
Client advisers are senior drafters from whom client agencies can obtain quick off-the-cuff advice about drafting matters that arise, for instance, in the course of preparing a Cabinet submission or drafting instructions. Advice on programming issues for Bills should be sought from the First Parliamentary Counsel rather than the agency's client adviser.
How do I give written drafting instructions to OPC?
OPC's drafting services: a guide for clients document provides information on how to give drafting instructions to OPC and is available on the OPC Documents page.
Does OPC draft subordinate legislation?
In addition to Bills, OPC drafts subordinate legislation, including legislative, notifiable and other instruments.
What is a legislative instrument?
It is common for an Act to allow a person or body to make a law on matters of detail under that Act by legislative instrument.
The Legislation Act 2003 requires legislative instruments to be registered on the Federal Register of Legislation to be enforceable. Legislative instruments are also required to be tabled in Parliament and are normally disallowable, which means that either House of Parliament may stop their operation by a vote within a set period after they have been tabled. They have a variety of titles. Regulations are legislative instruments, and other types of instruments (including rules and orders) may be legislative instruments.
For further information, please see the Legislative Instruments Handbook.
Notifiable instruments are a category of instrument that was recommended by the 2008-09 Review of the Legislative Instruments Act 2003 for instruments that are likely to be of long-term public interest, but that are not of legislative character or required to undergo Parliamentary scrutiny through disallowance or sunsetting.
If your agency is publishing instruments in the Gazette or elsewhere, you may wish to consider getting them registered as a notifiable instrument instead - this will generally satisfy any statutory requirement for publication. Registration is also much cheaper than alternatives such as newspaper ads, and ensures long-term access to your instrument (unlike publication on agency websites, where URLs are often subject to change due to agency name changes and website redevelopment.
Note also there is no requirement to consult before making a notifiable instrument, or to provide an explanatory statement for such an instrument. However ,if there is any doubt about whether something is a notifiable instrument of a legislative instrument, you may wish to lodge and treat it as a legislative instrument - otherwise the instrument may not be enforceable.
How do I find out if a legislative or notifiable instrument has been made under an Act?
To find out if a legislative or notifiable instrument has been made under an Act, check the "enables" tab on the home page of the Act on the Federal Register of Legislation.
If you think the legislation was registered within the past 2 weeks,you can also check "What's New" on the Federal Register of Legislation.
Can OPC give information about how legislation operates?
OPC does not give information about the operation of particular legislation.
For any information, you should contact the department or agency that is responsible for the legislation.
How do I find out which Minister or department is responsible for an Act or subordinate legislation?
The Administrative Arrangements Order that is made by the Governor-General sets out which Ministers and departments are responsible for particular subject matters and particular Acts and subordinate legislation made under those Acts.
The Administrative Arrangements Order is set out in order of department and is available on the website of the Department of the Prime Minister and Cabinet.
How do I find out if legislation is being drafted?
For reasons of confidentiality, OPC is not able to advise you whether or not particular legislation or legislation on a particular subject matter is being drafted.
For any information about a particular Bill, you should contact the department that is responsible for the Bill. For any information about particular subordinate legislation, you should contact the agency concerned or the department that is responsible for the Act under which the instrument would be made.
The Department of the Prime Minister and Cabinet website keeps a list of Legislation Proposed for Introduction.
How do I find out whether an Act or a legislative or notifiable instrument has been amended?
This information can be obtained from the Federal Register of Legislation.
How do I find out what stage a Bill is at in Parliament?
To find out what stage a Bill is at in Parliament, you should check the Bills and Legislation section of the Parliament House website.
How do I find a copy of a Bill?
You can purchase a printed copy of a Bill using the Print on Demand function in the Federal Register of Legislation.
You can obtain an electronic copy of a Bill that is currently in Parliament from the Federal Register of Legislation or the Bills and Legislation section of the Parliament House website.
The Federal Register of Legislation website also has copies of some Bills that are no longer in Parliament.
How do I find a copy of an Act or a legislative or notifiable instrument?
You can purchase a printed copy of an Act or a legislative or notifiable instrument by using the Print on Demand function in the Federal Register of Legislation.
The Federal Register of Legislation has Acts, legislative instruments and notifiable instruments in the form in which they were enacted or made and compilations showing Acts and instruments as amended and in force from time-to-time. All Register content is available for purchase in printed form.
Links to Legislation from States, Territories and New Zealand and overseas legislation are also available from the Federal Register of Legislation.
How do I find a copy of a Gazette?
Since 1 October 2012, the Commonwealth Government Notices Gazette (including Specials and Periodics) have been published by OPC. The electronic versions of these Gazettes can be found on the Federal Register of Legislation.
Gazettes published by the Attorney-General's Department between 1 July 2002 and 30 September 2012 are also available on the Federal Register of Legislation. They can also be viewed at the National Library or a State Library.
Copies of Gazettes published before 1 July 2002 are not available electronically. To view copies of the printed Gazettes, please contact the National Library or a State Library.
How do I find an Explanatory Memorandum for a Bill or an Explanatory Statement for a legislative instrument?
You can purchase a printed copy of an Explanatory Memorandum for a Bill or an Explantory Statement for a legislative instrument using the Print on Demand function on the Federal Register of Legislation.
You can obtain an electronic copy of an Explanatory Memoranda for a Bill that is currently in Parliament from the Federal Register of Legislation or the Bills and Legislation section of the Parliament House website.
The Federal Register of Legislation also has copies of Explanatory Memorandums for some Bills that are no longer in Parliament.
The Federal Register of Legislation also has a complete set of Explanatory Memoranda in hard copy. Copies that are not available through the Federal Register of Legislation can be provided on request (a fee applies).
How do I order further copies of Bills?
If you are a government agency and anticipate a need for further copies of a Bill, OPC will arrange for them to be printed as a “run-on” to the OPC print run. Further copies can be ordered by contacting the drafter for your Bill. The copies will be charged to the requesting agency at the run-on price. These copies must be ordered at least one week before the Bill is to be introduced. Please advise the drafter of the number of copies required.
How do I find out when an Act or a legislative instrument or notifiable commenced?
The Federal Register of Legislation provides information about the commencement of Acts, legislative instruments and notifiable instruments.
Alternatively, if you have a copy of the Act, you can find out when it commences by looking at the commencement provision. This is usually section 2.
Sometimes the whole Act commences at the same time. Sometimes different parts commence at different times.
The most common commencement times for Acts are:
- at Royal Assent (i.e. signing by the Governor-General); or
- at a specified date; or
- on a day to be fixed by Proclamation; or
- immediately before or after the commencement of another provision in that Act or another Act.
If there is no commencement specified (and the Act does not alter the Constitution), the Act will commence 28 days after it receives the Royal Assent (see section 3A of the Acts Interpretation Act 1901).
A legislative instrument will usually have a commencement provision that states when the instrument commences. This is usually section 2. Most legislative instruments commence at a single time.
The most common commencement times are:
- on the day after registration (i.e. registration on the Federal Register of Legislation); or
- at a specified date; or
- on the commencement of a provision of an Act.
If there is no commencement specified, a legislative instrument commences on the day after it is registered.
What is the process for a Bill to get Royal Assent?
Once a Bill has been passed by the Parliament, copies of the Bill bearing a certificate from the Speaker of the House of Representatives or the President of the Senate are given to the Governor-General by the House of introduction.
OPC prepares a certificate for the Attorney-General's signature recommending that Assent be given. When the certificate is signed by the Attorney-General it is sent to the Governor-General.
The Governor-General gives the Royal Assent to the Bill by signing 2 copies of the Bill.
In rare cases, the Bill is assented to by the Queen.
How long does it take a Bill to receive the Royal Assent?
The exact time that it takes for a Bill to receive the Royal Assent after it is passed by Parliament varies. However, it is usually between 7 and 10 working days.
How can I find out when a Bill is going to receive the Royal Assent?
The Royal Assent is given by the Governor-General after he or she receives the necessary documentation from the Attorney-General and the Parliament. Therefore, we are not able to tell you exactly when a Bill will receive the Royal Assent.
How can I find out when the commencement of an Act is going to be proclaimed?
Proclamations fixing commencement dates for Acts, or sections of Acts, are drafted by OPC on instructions from the responsible department, and made by the Governor-General in Council. Proclamations are notifiable instruments and are published on the Federal Register of Legislation when they have been made.
For reasons of confidentiality, OPC is not able to advise you whether or not a particular Proclamation is being drafted.