LEGISLATION – Who Makes it?

Hands up anyone who has ever had a burning desire to better understand what ‘legislation’ actually is and how it gets made?

On the assumption there is a sea of raised hands, I present to you a brief – I promise you, there is much, much more that can be said about legislation – Q and A about the topic and particularly, around regulations. Queensland’s community titles sector has heard a lot in recent months about changes to regulations, so it is good to know a little more about them.

Q: What is legislation anyway?

A: It’s the law, basically. Legislation is all of the rules, regulations and the like which define what we all do – and don’t do – on a daily basis.

Q: Who makes it?

A: Our politicians. The parliament. They are the ones with the power to make laws.

Q: So, if I want legislation changed, I just ask the government or the Commissioner’s Office and they do it, don’t they? That’s their job isn’t it?

A: The public service is not the Parliament. Public servants help draft legislation and then they implement it, but it is the Parliament which decides upon laws. Anyone can ask for legislation to be made or amended but that has to be balanced against other, different views and what is the priority for the government of the day.

Q: What’s the difference between an Act and a Regulation?

A: Great question! An Act is the primary legislation while the Regulation is the subordinate legislation. Think of the Act as setting out the broad concepts while the Regulation sets out the detail of how that will work. There are restrictions on what can go into a Regulation.

Q: Which one takes priority?

A: They work in tandem. Often you’ll need to read both, together, to get answers to your legislative question. There will be a section in an Act which will require you to then turn to the Regulation to get the detail. This is very much the case with body corporate legislation.

Q: How do you get a new or amended Act?

A: The government goes through a process of developing a policy position, consulting on that, drafting and redrafting how that policy position might look in practice, consulting on that and then eventually, what results is a Bill which gets presented to the Parliament. That Bill gets examined by a Parliamentary Committee and then gets voted on by the Parliament. If it passes, it then needs to be assented to by the Governor, who is the Queen’s representative in Queensland.

Q: So what about a Regulation then?

A: Same development process but with quite a bit more technicality and process. It doesn’t go to Parliament though – unless it’s pretty contentious – and still requires the Governor’s assent.

Another key feature of a Regulation is that it has an expiry date. Approaching expiry, the Regulation has to be reviewed and then remade – the technical term – if necessary.

Q: How long does it all take?

A: How long is a piece of string? Some things can happen very quickly. Legislation regarding COVID-19 happened in the space of a few days, because it’s an emergency. Other legislation can literally take years to come to fruition. Some legislation might get started and never actually come to fruition at all.

Q: When does a new amendment actually start?

A: It can start on assent, or as is often the case, it will start on proclamation. That essentially means that the amendments are approved and ready to go but the government decides they won’t come into effect or operation until a nominated date in the future. This gives the relevant government department time to implement all the changes which will result. For example, renumbering forms, changing website information or changing the way departments administer the legislation. This can be a substantial body of work depending on the changes.

Q: What about the Regulation Modules in Queensland? What’s happening there?

A: As the name suggests, the Regulation Modules are subordinate legislation. In their existing form they were due for expiry. The government has decided to implement the majority of recommendations from the Property Law Review into remade Regulation Modules.

Just before the COVID-19 pandemic it appeared that the new Regulation Modules were all but finalised. We would have anticipated a scenario in which the Modules might be remade with their commencement to occur later in 2020. As Commissioner, my view was that it would need at least six months from remake to commencement. That six months would be spent on getting everything ready for commencement. We will now have to wait and see if that is the case.

Other parts of the Property Law Review, for example scheme termination and by-laws, are issues to be addressed in a second phase as part of possible amendments to the Act. We don’t know when that might now occur.

This article was prepared by Chris Irons, Strata Adviser, Hynes Legal