This topic covers a number of practical matters that a policy officer must consider in order to effectively manage the law reform process. It is important not only to think about where your reform will best sit within the existing legislative framework, but also about when your reform will be required to operate. You will also need to consider how the reform should be implemented and how you will be able to evaluate whether it has successfully ‘solved’ the original policy problem.
4.1 Approval processes
Each country’s approach for commencing legislative reform differs, however, the appropriate policy approvals must be sought and gained before time is spent on amendments that the relevant minister or Cabinet may not agree with.
You should check what approval is necessary and the process for obtaining this as early as possible. Obtaining policy approval will also assist in determining the priority of the legislative reform within the government’s broader agenda.
4.2 Will your proposed reform require primary or subordinate legislation?
When legislating, a key practical question is whether the subject matter being legislated is better suited to an Act or to a subordinate instrument, such as regulations. An additional question is whether new legislation is required or if existing legislation can be amended.
The following flowchart provides an overview of this thinking and further detail is provided in the following sections:
4.2.1 Act v regulation
The decision whether the reform should be achieved through an Act or through regulations may need to be resolved in consultation with your drafter. It is important to understand this distinction for the purposes of instructing and ensuring any legislative proposals are within the authority of the existing legislative framework.
While there is no definitive list of what should be contained in Acts as compared to subordinate legislation, the following is a list of issues that would generally only be dealt with by primary legislation:
- appropriations of money;
- significant questions of policy including significant new policy or fundamental changes to existing policy;
- rules which have a significant impact on human rights and personal liberties;
- provisions imposing obligations on individuals or organisations to undertake certain activities (e.g. to provide information or submit documentation, noting that the detail of the information or documentation required may be included in subordinate legislation) or desist from activities (e.g. to prohibit an activity and impose penalties or sanctions for engaging in an activity);
- provisions creating offences or civil penalties which impose significant penalties;
- provisions imposing administrative penalties for regulatory offences (administrative penalties are imposed automatically by force of law instead of being imposed by a court);
- provisions imposing taxes or levies;
- provisions imposing high or substantial fees and charges;
- provisions authorising the borrowing of funds;
- procedural matters that go to the essence of the legislative scheme;
- provisions creating statutory entities (noting that some details of the operations of a statutory entity would be appropriately dealt with in subordinate legislation); and
- amendments to Acts of Parliament.
As regulations and other subordinate instruments do not undergo as much scrutiny as Acts, significant matters and issues of great public interest should only be in Acts. 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.
Remember that subordinate legislation can only deal with the subject matter allowed under the empowering provision of the Act (see above in topic 1.2.4 – Subordinate legislation).
4.2.2 New legislation v amending legislation
A key preliminary issue is whether new legislation is required or if the policy change can be achieved through amending existing legislation. If legislation already exists on the subject matter, then it may be more appropriate to amend that legislation rather than introduce a new Act.
For example, a country may want new legislation to deal with an emerging issue, such as cybercrime. The benefits of this are that all issues relating to cybercrime can be located in one piece of legislation, which can be helpful for familiarising and training law enforcement. This approach also allows a government to highlight a particular issue to the public, by announcing the introduction of a standalone piece of legislation that addresses a public concern. However, this can also mean that broader issues, such as criminal offences and police powers, can be spread across multiple, subject-specific Acts. This can then make criminal offences and relevant police powers harder to find.
You may be tempted to ‘clean up’ the statute book by repealing and replacing existing legislation. This may be especially tempting if a number of previous amendments have occurred without being compiled into a single version of the Act. However, this can open previously settled issues up for debate and create more complications in the legislative process.
When undertaking legislative amendments you should also check whether there have been previous amendments made to the Act or instrument. Any amendments must be read into the Act so that you can be sure you are amending the right version.
4.3 When and how will your law commence?
You will need to decide when the draft legislation, once enacted, is to commence. There may be specific conventions around how legislation is to commence in your country, so this should be considered and followed. Additionally, there can be default commencements which may apply if a specific commencement provision is not given. Instructors should be aware of this and provide instructions as to whether the default commencement is appropriate or not.
Some common mechanisms for commencements include:
- commencing on a specific date;
- commencing on Royal Assent, or when certified by the Speaker of the Parliament;
- commencing on a future date to be decided – for example, commencing on a date to be proclaimed by the minister; or
- commencing on gazettal (see topic 1.2.2 for further information on gazettes)
Other more complicated commencement provisions may involve a contingent commencement. For example, an Act may be stated to commence on the commencement of another piece of relevant legislation. Alternatively, there may be a staggered commencement, where different parts of the legislation commence at different times. See some examples below of the variety of commencement provisions:
In deciding the most appropriate commencement, you should consider what time frame you require to ensure that the legislation can be appropriately implemented on commencement.
Questions to consider when working out an appropriate commencement date include:
- Do regulations need to be prepared to commence with the Act?
- What practical steps need to be taken before the public service will be ready to operationalise the law?
- What will be the practical effect of this legislation on the community?
- Is there is sufficient time for the community to learn about the law, and develop ways to comply with it?
Talk to your legislative drafter early about the anticipated commencement provisions and remember to include an explanation about the reasoning for commencement in the explanatory information (see topic 5.5 – Explanatory material).
4.4 What impact will your law reform have on existing legislation?
4.4.1 Consequential amendments
It is important to start thinking early in the reform process about what impact your law reform will have on existing legislation. When your new legislation interacts with existing legislation, it may be necessary to change the existing legislation. Such changes are referred to as ‘consequential amendments’.
For example, when Nauru introduced the Crimes Act 2016, all other pieces of legislation which referred to the old Criminal Code 1899 needed to be updated via a consequential amendment. These amendments are located in Schedule 2 to the Crimes Act 2016, such as:
PART 9 — FISHERIES ACT 1997
67 Sections 22(8), 23(3) and 24(5)
Section 24 (Mistake of Fact) of the Criminal Code 1899 is
Sections 44 and 45 of the Crimes Act 2016 are
4.4.2 Transitioning from an existing legislative scheme
Where a legislative reform creates a change from an existing legislative arrangement to a new one, a specific provision to deal with the changeover period may be required. This kind of transitional provision explains how the existing scheme should be treated when the new scheme comes into force.
For example, a legislative scheme might exist where people who would like to operate small businesses must apply for a small business permit for which they must meet a variety of criteria. If a legislative reform was introduced to change that criteria, then a number of issues would arise that the new legislation would need to address. These issues include:
- Should a permit granted under the old scheme continue to have effect once the new permit scheme begins?
- If a person had applied for a small business permit under the existing legislation, what should happen to their application when the new legislation is enacted? Should they have to apply again?
- If there were any regulations or other subordinate instruments relating to the existing permit scheme, do these continue as if they were made under the new scheme?
It is also possible to ‘save’ an existing rule, right, privilege, obligation or liability by preserving such a provision (either wholly or partially) from being repealed or ceasing to have effect because of new legislation.
An example of a simple transitional provision can be seen in section 151 of the Police Powers and Duties Act 2008 (Kiribati), which allows for offence proceedings which had been started under the previous police legislation to continue as though the new legislation did not exist:
151. Proceeding for offences
A proceeding for an offence, that was started under the Police Ordinance, and was pending at the commencement of this section, may be continued as if this Act had not been enacted.
Another example can be seen in the Planted Forest Act 2015 (Vanuatu):
30. Transitional provisions
- On the commencement of this Act, a person who is granted a forestry right in respect of an accredited timber plantation under the Forestry Rights Registration and Timber Harvest Guarantee Act [CAP 265], is taken to have been granted forestry rights in respect of his or her timber plantation under this Act.
- To avoid doubt, on the commencement of this Act, a timber plantation referred to under subsection (1) is to be known as a planted forest.
4.5 How will your reform be implemented?
Law reform alone cannot solve policy problems. The new law will need to be implemented and enforced in order to have any effect on the policy problem. Implementation can have implications for financial, human and other resources.
Before commencing any law reform it is critical that you develop a clear plan for how the reform will be carried out. You should identify any implementation challenges, resources, timeframes, roles and responsibilities very early on, possibly even before recommending this option to your minister. This is even more critical when the reform is connected to other regulations, policies or projects being undertaken to address the policy problem.
Some specific considerations include:
- Have those responsible for applying the new law been identified and their roles and responsibilities clearly defined? For example, there is no point in creating a law that allows for complaints to be made about government decisions if there is no one responsible for receiving and responding to those complaints.
- What resources will be required to implement the new law? For example, will new institutions need to be created? How will these be staffed?
- How will those responsible be held accountable for implementing the legislation?
- Are there reporting procedures in place?
- Have stakeholders been adequately informed and included in the process?
- Have threats and risks been identified and mitigated against?
- Has it been decided how success will be judged and evaluated?
Implementation plans can assist to guide implementation by creating a shared understanding of who is responsible for what actions. An example of a simple implementation plan is set out below.
Policy Implementation Plan
|Sexual Harassment Policy (what)||ACTIONS (How)||RESPONSIBLE (Who)||TIMEFRAME (When)||BUDGET (Cost)||BUDGET SOURCE (Cost)||STATUS|
|Complaints procedure||What actions must be completed to implement this policy?||Who is responsible for the|
|When must the action be completed by?||How much will it cost to implement the action?||Where will the funding come from?||Is the action not started, in progress or complete?|
|Draft guidelines for selection of contact officer e.g. must have counselling qualification or list of current services to refer complainants to||Policy team||June||$10,000||National budget||Complete|
|Select appropriate contact officer||HR||June||Complete|
|Train contact officer on correct handling of cases||Training Department||July||Complete|
|Train staff on policy||Training Department||July||$20,000||AFP||In progress|
|Conduct follow-up review to measure effectiveness||Director of Prosecutions||December and ongoing||$30,000 per year||National budget||Not started|
4.6 How will you monitor and measure success?
It is important to build monitoring and evaluation into policy development. These steps will help you assess whether the outcome sought from your policy has been achieved. For example, if the policy problem being addressed was underage drinking and the policy option pursued was to increase penalties for this offence in the Crimes Act, then monitoring and evaluation would help you determine if the levels of underage drinking have actually declined as a result of the law reform undertaken.
‘Monitoring’ is essentially a management process to periodically report against planned targets. The gathering of this evidence over time will help evaluation. It helps to have what is called ‘baseline data’ – relevant information on how things were before the policy was implemented.
Once this evidence has been gathered, ‘evaluation’ can be undertaken to make judgments about the effectiveness of the policy action/option, and can help decisions be made on whether to expand, modify or stop the policy.
Evaluation is usually focussed on how effective, efficient and appropriate the policy response to the issue being addressed is (or was). It is also a key mechanism for gathering evidence to inform future policy making.
The design of any policy should include a system for evaluating the effectiveness of the policy.
4.7 Checklist before moving on
Once you have worked your way through all the chapters above, you will be in a great position to work as effectively as possible with a legislative drafter. However, before moving on to the next chapter, be sure you are comfortable with the below checklist:
|Checklist before moving on from this topic|
|I am comfortable that I have the necessary approval for proceeding to draft the proposed reform||4.1|
|I have considered whether my reform is better dealt with through either primary or subordinate legislation||4.2.1|
|I have considered if new legislation is necessary or whether my reform can be achieve through amending existing legislation||4.2.2|
|I have considered when and how the law should commence||4.3|
|I have considered what consequential amendments may need to be made as a result of my reform||4.4.1|
|I have considered whether transitional arrangements are necessary to introduce my reform||4.4.2|
|I have planned how to implement my reform||4.5|
|I have considered how to monitor and evaluate the success of my reform||4.6|