1.1 This toolkit
1.1.1 Purpose of this toolkit
A policy is a decision by government to use its resources, and take actions, to meet some objective, and typically to solve a problem. When developing policy, there are a range of ‘solutions’ which policy officers might pursue, one of which is law reform.
To a large extent, law reform should be considered a last resort in policy development. Law reform can be a long and difficult process and can have unintended outcomes. It can create a burden on those in the community who have to comply with it, and a lot of effort and resources need to be placed not only on the content of the law, but how the law will be implemented and enforced once it is operational. Access to justice can also be inhibited by adding to the size and complexity of the statute book. Policy, when implemented through legislation, can also become inflexible because further changes will require new legislation. Lastly, there are significant costs associated with creating legislation, including the costs of: preparing the legislation (i.e. drafting, consulting and reviewing); the Parliamentary process; publication; and, compliance (i.e. administration, implementation and enforcement).
Noting the above, it still may be that legislation is the most appropriate way to implement a new policy or solve a particular problem. If the decision to undertake law reform has been made, there are a range of other considerations that arise when turning that policy decision into law.
This toolkit walks policy officers through the general policy development process, provides guidance on specific issues to consider when turning policy into law and sets out a range of practical matters that should be considered during the reform process. This toolkit also provides policy officers with guidance on how to provide drafting instructions and work with a legislative drafter to develop legislation.
The diagram on the next page provides an overview of this toolkit and highlights that this is not a simple step by step process. Instead, there is a wide range of thinking and preparation that needs to be done ahead of working with a legislative drafter to prepare legislation.
1.1.2 How to use this toolkit
As the previous diagram illustrates, this toolkit walks policy officers through the policy development process, provides guidance on factors to consider when addressing frequently encounted law reform issues and discusses a range of practical matters which need to be considered to plan and manage the law reform process. Once all this thinking has been done, officers can proceed to work with the legislative drafter.
Not all parts of this toolkit will be relevant for every law reform. It is simply a guide to prompt you to think about various matters to ensure your reform can be achieved as efficiently and effectively as possible. There are flowcharts and checklists throughout the guide to help you navigate through, but you should feel free to move back and forth through the document as best suits you and your context.
1.1.3 What this toolkit does not include
This toolkit does not address the law making process, that is, the process of political consideration of the legislation. While an example of this process is provided in topic 1.2.3, this procedure varies widely between countries. You should take the time to ensure that you understand how this occurs in your country.
This toolkit also does not address the actual drafting of legislation. Also, while detailed guidance is provided around how to work with legislative drafters, including on preparing drafting instructions, the exact process for providing drafting instructions differs between countries. It is important to check if your country has any resources on how drafting instructions should be provided (for example, the Cook Islands guide to preparing instructions for the drafting of legislation).
1.2 Before you start law reform – key concepts
Before undertaking law reform it is important that you have a clear understanding of the legislative hierarchy, the different types of legislation and their key characteristics. Experienced policy officers, or those who have studied law, will already know this and can skip to Topic 2. For others, topic 1.2 is critical to understanding this before starting any law reform process.
|Checklist before moving on from this topic|
|I understand the legislative hierarchy in my country||1.2.1|
|I understand what an Act, a bill and a legislative instrument are and the relationship between each of these||1.2.2 - 1.2.4|
|I am familiar with the key features of legislation||1.2.5|
1.2.1 Legislative Hierarchy
To understand the law reform process and develop drafting instructions you must first understand the legislative hierarchy and the different types of laws that exist in your country.
A Constitution is the supreme law of a country, to which all other laws are subject. In most Pacific Island countries, the Constitution is a written document adopted and identified as the Constitution. In other countries the Constitution is comprised of a mixture of statutory provisions in different Acts, rules set out in the common law and Constitutional conventions. Further information on Constitutions and how a proposed reform interacts with the Constitution is provided in topic 3.1. Further information on Acts and subordinate legislation is provided in topics 1.2.2 – 1.2.4.
1.2.2 An Act
An Act is a written law that has been approved by Parliament and officially enacted. An Act might be a new piece of legislation (for example, the Crimes Act 2016 (Nauru)) or an amendment to an existing piece of legislation (for example, the Criminal Procedure (Amendment) Act 2016 (Nauru)). Some Acts may even be a combination of both of these by establishing a new legislative scheme while at the same time making amendments to existing laws to allow the new scheme to operate.
Legislation is ‘enacted’ in different ways depending upon your country’s processes. In some countries it will be endorsed by the monarch, in others by the Governor-General or President. It may then need to be gazetted. A gazette is an official government publication that notifies the public of the actions and decisions of government. The Act may, however, commence (that is, start to have effect) at a later date (see topic 4.3).
1.2.3 A Bill
At any time before an Act is enacted (for example, while still being debated in Parliament or before receiving Royal Assent or other final approval) it is called a bill.
A bill does not become an Act until it has been agreed to by the Parliament and enacted. A bill is essentially a draft Act.
In Australia, the process of a bill becoming an Act is as follows, noting that most Pacific Island countries’ Parliaments or Congress have similar processes:
During these stages, the ‘reading’ of the bill does not generally refer to literally reading the bill aloud. The first reading is the bill’s introduction to Parliament and generally involves reading the long title of the bill. The second reading usually involves an explanation of the bill and can include a debate over the principles, or even each clause, of the bill. There is then a delay between the second and third readings to allow time for review. Review may involve the referral of the bill to a Parliamentary committee for further scrutiny. The committee may invite submissions and hold public hearings before making recommendations to Parliament (if needed). The bill is then read for a third time, which is when it is voted on.
1.2.4 Subordinate legislation
Subordinate legislation is also referred to as legislative instruments, delegated legislation or subsidiary legislation. These are still laws but are made under the authority of an Act rather than through the approval of Parliament. In other words, they sit under (and are subordinate to) the Act.
For example, the Police Powers and Duties Regulations 2012 (Tuvalu) is made under section 177 of the Police Powers and Duties Act 2009 (Tuvalu) as set out on the cover page of the Regulations:
The Act under which the instrument is made (the ‘empowering Act’) must provide a power for subordinate legislation to be made under it and set out who has the power to make such subordinate legislation. The wording of the empowering provision will determine the type of instrument that can be made. The empowering Act may also include restrictions or guidance on what may be in the subordinate legislation.
For example, sections 41 and 42 of the Family Protection Act 2014 (Tonga) provides:
41. Power to makes rules
The Lord Chief Justice may from time to time make rules providing for and in relation to procedures to be followed in domestic violence cases and –
- forms and the use of forms as necessary for the purposes of this Act;
- applications for protection orders made by telephone and other similar facilities.
42. Power to make regulations
The minister may make regulations not inconsistent with this Act for all matters required or necessary to give effect to this Act.
When making subordinate legislation you must take care to ensure what you are proposing to do is permitted by the empowering Act. If there is any doubt, you can seek legal advice from your internal legal area, legal adviser or Attorney-General’s Department/Department of Justice/Crown law office.
There are many kinds of subordinate legislation, examples include:
- Financial Supervisory Commission (Remuneration and Allowances) Order 2006 (Cook Islands), made under the Financial Supervisory Commission Act 2003
- Magistrate’s Court (Civil) Rules 2007 (Tonga), made under the Magistrate’s Court Act
- Police Powers and Duties Forms Approval 2012 (Tuvalu) made under the Police Powers and Duties Act 2009
- Family Assistance (Immunisation and Vaccination) (Education) Determination 2018 (Australia) made under the A New Tax System (Family Assistance) Act 1999.
As regulations and other subordinate legislation do not undergo as much scrutiny as Acts, significant matters and issues of great public interest should only be in primary legislation. Regulations generally contain the detail surrounding the significant principles set out in an Act, as well as matters that are likely to change frequently, for example, forms and fees.
Further discussion to help you decide whether a proposed reform should be included in an Act or subordinate legislation is at topic 4.2.1.
1.2.5 Key features of legislation
Acts, bills and legislative instruments usually have similar features:
- a cover page:
The long title describes the contents of the Act or bill and summarises its general purpose.
The short title is the name used to refer to that Act or bill.
- often (though not always) a table of contents
- the text of the Act/Instrument grouped in a certain way (depending on the length and the convention of a country as to how legislation is numbered):
- Definitions that apply to the whole piece of legislation are generally provided for either in an interpretation section at the front of the piece of legislation or at the end in a dictionary
- Notes can appear throughout legislation in smaller text underneath the section to which they relate. Notes explain connections between provisions, but do not create substantive law themselves. For example, section 20 of the Crimes Act 2016 (Nauru) provides –
20. Reckless indifference to consent
- A person is ‘recklessly indifferent’ to consent of another person if:
- the other person’s consent is required in relation to an act; and
- 1 of the following applies:
- the person is aware of the possibility that the other person might not consent to the act but decides to act regardless of that possibility;
- the person is aware of the possibility that the other person might not consent to the act but fails to take reasonable steps to ascertain whether the other person does in fact consent to the act;
- the person does not give any thought as to whether or not the other person consents to the act.
Note for subsection
Consent is defined in section 9.
- amending schedules – that is, schedules that set out the amendments to be made to other legislation, which are called consequential amendments (discussed in more detail in topic 4.4)
- non-amending schedules – that is, information that relates to an earlier section of the Act/bill/Instrument. For example, section 30 of the Business Names Act 2014 (Solomon Islands) provides –
- An “appealable decision” is a decision specified in the Schedule.
- An “affected person”, for an appealable decision, is a person specified in the Schedule opposite the decision.
The Schedule to this Act then sets out –
appealable decisions and affected persons
|appealable decisions||affected person|
|Registration of business name to an entity (section 14(1)(a))||an entity in relation to whom there is a real risk of substantial detriment because of the registration of the name|
|refusal to register business name to entity (Section 14(1)(b))||the entity|
|removal of business name from Register (section 24)||the entity|
|restoration of business name to Register (section 25)||an entity in relation to whom a real risk of substantial detriment because of the restoration|
|refusal to restore business name to Register (section 25)||the applicant for restoration|