Legislative lexicon
This is our list of terms used as tools of trade by legislative drafters. See also our Governance lexicon and our Universities lexicon.
Amending Act: An Act that amends another Act. Once the amendment occurs, the amending Act is “spent” and its work cannot be undone. Amending Acts sit on the statute book as empty shells unless cleaned up by legislative housekeeping.
Amending Regulations: Regulations that amend other Regulations. As with amending Acts, amending Regulations are “spent” once their work is done.
Bill: A draft Act, as introduced into Parliament for consideration. There is no equivalent term for draft secondary legislation, despite the detailed procedural requirements which have been imposed in recent years for the making of regulations.
Court rules: A form of subordinate legislation, made under authority of a court act. Despite the impression conveyed by the name, court rules are an illustration of the interdependence between courts and executive government – when it comes to legislation, the courts don’t rule, the government does.
Declaratory Act or provision: An Act or provision which “declares” the state of the law. This is frequently said to be done for the “avoidance of doubt”.
Delegated legislation: Legislation made under power “delegated” to the executive government by the legislature (by means of an Act). The terms “secondary legislation” and “subordinate legislation” are also used.
Delegation: The assignment of power to another person by means of an “instrument of delegation”, from a delegator to a delegate. An exercise of delegated power, done by a delegate, has the same effect as if done by the delegator.
Enabling legislation: The meaning might seem obvious - legislation which enables something to occur. However, the term is also used to mean consituting legislation, or, more precisely (section 8 of the Public Governance, Performance and Accountability Act 2013 (Cth)):
enabling legislation means for a Commonwealth entity that is established by or under an Act or legislative instrument means that Act or legislative instrument.
Factum: The factual circumstances in which legislation operates. A road sign is a factum in the operation of laws controlling road user behaviour. [see Forsyth v Deputy Commissioner of Taxation [2007] HCA 8 at [34]].
Guidelines: Documents which set out criteria for decision making. See also Policies and DL Newsletter #8 of February 2015.
Hierarchy: The relationship between laws which gives legislation validity: primary legislation derives validity from constitutional law (above it in the hierarchy) and confers validity on secondary legislation (below it in the hierarchy).
Interpretation legislation: Acts which provide rules about interpretation of legislation, such as the meaning of expressions, the operation of delegation provisions and the calculation of time. Interpretation legislation is often supplemented by legislation dealing with the process for making laws. In some places (Indonesia is an example) the two are combined.
Legislation cycle
The cycle of developing, drafting, making, implementing and reviewing legislation. After reviewing comes ... developing.
The speed of the cycle can be very slow indeed, if the age of some Australian legislation is a guide. For subordinate legislation (regulations and rules) the process is accelerated in jurisdictions where a “sunset” (automatic revocation) occurs after a fixed period. Confronted by an approaching sunset, the sectoral agency must either develop new legislation or, after the sunset, do without. The third way, to defer the sunset, is a technique sometimes applied as a short-term expedient.
Legislation hierarchy: The legislation hierarchy helps to resolve inconsistencies between provisions located in different types of laws. An Act is above regulations in the hierarchy (although it is not unheard of for regulations to amend Acts!), so it prevails over regulations. If there is an inconsistency, the law which is higher in the hierarchy is operative, and to that extent the lower law is inoperative.
There are typically two levels of law within a legislative cluster – an Act and the regulations made under it. University legislation is an example of sectoral legislation in which there are three types of legislation (the Act and two forms of subordinate legislation under it). As in any legislative cluster, the Act prevails over the subordinate legislation. As between different subordinate legislation within the cluster, typically one form of subordinate legislation prevails over the other in the event of inconsistency, creating a three level hierarchy.
Legislative competence: The ability, conferred by constitutional law, to make legislation. A parliament has legislative competence (subject to limitations) to make primary legislation.
Legislative cluster: Two or more items of legislation which are linked, whether or not they form part of a legislative scheme. An Act and the secondary legislation made under it form a legislative cluster.
Legislative housekeeping: The activity of keeping legislation well organised, that is, accessible and free of clutter. Legislative housekeeping is a justification for the maintenance of specialised drafting offices (“parliamentary counsel”) in Commonwealth countries.
Legislative instrument: A concept created under recent Australian legislation. It covers (subject to various qualifications) a written instrument that is “of a legislative character” and is made in the exercise of a power delegated by Parliament. In Victoria, when similar legislation was under consideration, concern was expressed that it may extend to “cemetery trust instruments” (see our commentary in our Newsletter No. 6 of January 2011).
Legislative program: A listing of proposals for new legislation. The listing is typically prepared by the executive government, and identifies the government’s priority law reform proposals. Sectoral agencies may find that they cannot progress their proposals unless they have sufficient priority in the legislative program.
Objectives: (also referred to as objects). Many Acts include a succinct statement of the objectives of an Act. The Crown Land Management Act 2016 (NSW) lists its “objects,” which include “to provide for the consistent, efficient, fair and transparent management of Crown land for the benefit of the people of New South Wales.” (section 1.3(d)). An Act is inanimate and cannot have objectives (or objects). A provision such as this is a shorthand way of stating the objectives (or “objects”) of Parliament in enacting the Act.
Operative provision: A provision which alters status or imposes obligation. The term is sometimes used in (disparaging) contrast to a provision which sets out objectives or principle.
Policies: Instruments which which set out criteria for decision making. The term is term is often used in university administration (see DL Newsletter #8 of February 2015). See also Guidelines.
Procedures: Instruments which set out standard management processes, intended to produce consistency of process. The term is often used in university administration (see DL Newsletter #8 of February 2015).
Process legislation: Legislation which mandates processes for making, reviewing or repealing/revoking legislation – legislative housekeeping.
Purpose: The term is used in several ways. It can be synonymous with objectives (see above), it can be applied to persons or entities, and it can be used more generally. Example: under section 26 of the Public Governance, Performance and Accountability Act 2013 (Cth) a government official must perform the duties of office “honestly, in good faith and for a proper purpose.”
Regulation creep: (i) The process of incrementally increasing the reach of legislation by applying it to circumstances other than those used to initially justify its enactment. (ii) A term of affection for a legislation officer.
Regulations: A form of secondary legislation.
Regulatory impact analysis: Analysis of the costs and benefits of a regulatory proposal. The analysis is set out in a document sometimes called a regulatory impact statement.
Retrospective effect: A ground for review of subordinate legislation in Victoria – “without clear authority in the enabling act or statutory rule, has retrospective effect ...”. See our Newsletter #6 of January 2011.
Rules: A form of secondary legislation, for example court rules.
Secondary legislation: Legislation which is made under authority of an Act. The term “delegated legislation” – that is, legislation made under power “delegated” by the legislature – is also used.
Sectoral agency: The government agency which administers legislation – in Indonesia, the instansi. The agency is part of the executive government, but it also proposes primary legislation and proposes (and often drafts) secondary legislation. It is not strictly the law maker, but law-making relies on it.
Sectoral legislation: Legislation which deals with an area (sector) of government activity.
Significant (economic or social burden): The trigger for a requirement, in Victoria, for a regulatory impact statement to be prepared – that is, an RIS is required if the subordinate legislation will impose a significant economic or social burden. Apparently this means something different to an “appreciable” economic or social burden: see our Newsletter #6 of January 2011.
Socialisation: The process of preparing the public for the imminent implementation of new legislation. This is not to be confused with public participation in the development of legislation. In Indonesia, socialisasi.
Stakeholder: A person who has a greater interest in an issue than do members of the public generally. This is not to be confused with having a strong opinion.
Statute: Usually a synonym for an Act – primary legislation made by Parliament. Under university Acts, universities are given power to make “university statutes”, which are secondary legislation.
Statute book: The statutes which are in force in a jurisdiction, a collection of which is typically maintained by a central government agency such as the parliamentary counsel's office.
Statute law revision: Cleaning up of the statute book (removal of obsolete provisions, correction of references, correction of obvious errors), often by means of a Statute Law Revision Act. A form of legislative housekeeping.
Subordinate legislation: Legislation made under authority of an Act. The terms delegated legislation and secondary legislation are also used.
“Toothpaste tube” effect: The removal of regulatory requirements from secondary legislation caused by the regulatory impact analysis process – they are squeezed out when the cost of retention for the sectoral agency is too high. They might disappear, or they might re-emerge elsewhere.
Transitional provision: A provision which deals with the change-over from existing legal circumstances to the legal circumstances as they will be under new legislation. Many transitional issues are dealt with interpretation legislation, lessening the need for transitional provisions in each Act.