06 May 2008
Key Points:
With a new government comes a new raft of policies. With a new Parliament comes a new legislative program. Our tips will ease the transition from policy to legislation and make sure that the new law is not only easy to administer, but is as clear as it can be to those who are affected by it.
The drafting of legislation is the penultimate step in the process, before policy becomes law. Of course, the Parliament still has its work to do! However, the drafting process need not be seen as just one more obstacle to overcome in turning policy into law. It should be used to sharpen the expression of policy. Here are seven tips to make it so:
1. At the outset, determine if legislation is actually required
Careful consideration should be given as to whether legislation is actually needed. It might be that administrative action would be sufficient. The latter course is certainly less time consuming.
The executive power could be considered for non-coercive, punitive, intrusive, or non-taxation purposes. Under the Constitution, however, an appropriation of money must be supported by an Act of Parliament, and an Act should only be amended by a subsequent Act.
Clearly, only legislation administered by a particular department can be amended by that department. If proposed legislation contains amendments to legislation of another department, that department’s agreement must be sought to those amendments.
2. If legislation is required, identify what sort of legislation it should be
Whether policy should be embodied in primary legislation (an Act), or in subordinate legislation (typically Regulations), is a question that presents no easy answer.
Clearly, appropriations of money; significant new policies, impositions of obligations to undertake significant acts and of significant criminal penalties, and provisions imposing taxes or levies should all be embodied in an Act of Parliament. A more complete list appears in PM&C’s Legislation Handbook.
Conversely, matters that fill out the detail of primary legislation, or that are liable to frequent change, may more appropriately appear in subordinate legislation. For example, the content of forms required to access rights conferred under an Act are almost inevitably left to the Regulations.
Although not a recent publication, the Administrative Review Council’s Report No. 35, Rule Making by Commonwealth Agencies, continues to provide the most useful guidance as to which matters should be dealt with in an Act and which can properly be delegated to a subordinate law-maker.
In all cases, the general scope of proposed subordinate legislation must be clear before the Act under which it is made can be drafted. All subordinate legislation needs a sufficiently wide power for it to be made, or at least an authorising provision, to be included in its primary legislation.
3. Consult with those who may have an interest in the legislation
There are formal requirements for consultation, both within and outside of government, in the development of legislation. Further, Senate committee review of primary legislation before the Parliament may also involve community consultation.
To ensure workable legislation, and the best chance of its easy accommodation by those affected by it, it is often advisable to undertake early consultation, on the general principles that will underpin future legislation.
Occasionally, consultation should be undertaken at the time that policy is being developed. This is particularly the case where the activities of a specific part of the community (say, a particular industry) are to be regulated.
Otherwise, a regulatory impact statement is required to be prepared in consultation with the Office of Best Practice Regulation. A consultation statement must be incorporated into that statement where consultation has been undertaken with those affected by proposed legislation. The OBPR’s Best Practice Regulation Handbook is of assistance in preparing that statement.
4. Think about the implications of the legislation, and account for them
Often amending legislation will not only have an impact on the particular legislation that is being amended, but on other legislation as well. Because of the limited human resources of legislative drafting offices, it will generally fall to the instructing department to identify and instruct on the content of consequential amendments.
It follows that, before drafting commences, a complete understanding of any impacts on any other legislation should be developed and accounted for.
5. Prepare drafting instructions that focus on outcomes, not processes
There is no set format for drafting instructions. Ideally, they should cover the what, why and when of the legislation. That is: what has to be done; why it has to be done; and, when it has to be done by.
The process of translating policy into legislation should always be left to the drafter. If a drafter is presented with an attempt at legislative language, instead of drafting instructions, they will not know why the particular language of the draft has been used; nor will they have the background information necessary to do their work.
In any case, a legislative drafter will inevitably not respond well to any lay draft put before them - and that is not an ideal way to kick off the instructor-drafter relationship!
6. Deal effectively with the legislative drafter
Notionally, an officer instructing on legislation is a client of the legislative drafter - whether the Office of Parliamentary Council (for Acts) or the Office of Legislative Drafting and Publishing (for Regulations) - however, the relationship is more complex than that.
The drafter can provide real value in the process of turning policy into law, particularly by assisting in refining drafting instructions and in defining legal issues arising from the policy. In turn, they will be assisted by clear drafting instructions and timely and meaningful responses to the inevitable series of drafts of the legislation.
What is always important to ensure is that the legislative scheme that is to be used is appropriate to the policy, not simply an adaptation of one that has been used by the drafter in the past. The best result can be ensured by testing the scheme that is produced to ensure its outcomes are consistent with what is intended by the policy.
7. Don’t rely on explanatory materials to make up for any deficiencies in legislation
Finally, it is important to resist the temptation, when faced with deadlines for the drafting of legislation, to leave too much to the explanatory materials sitting behind the legislation, particularly the explanatory memorandum.
Obviously, what appears in explanatory material is no substitute for the legislative effect, particularly of an Act of Parliament.
Clearly, the intended meaning of an Act can be clarified, and its intended effect explained, in an explanatory memorandum.
The High Court has warned however that extrinsic material "amount to no more than an expression of opinion of what the relevant legislation means" (Hunter Resources Limited v Melville (1988) 164 CLR 234). Consequently, what must be said in legislation should not be left for the explanatory materials.
While following these tips will not mean that there is less effort required in turning policy into law, they should make the work involved in producing legislation easier and hopefully more productive.
For further information, please contact Philip Harrison.
