Once the government has decided that legislative reform is necessary, you will need to engage a legislative drafter to draft the reform. Your country may have an office dedicated to legislative drafting or it may be that the lawyers in your Attorney-General’s office or Department of Justice do the drafting. Sometimes private drafters are engaged or donors may have legislative drafting skills. Whatever the arrangement, instructions will need to be prepared for the legislative drafter.
5.1 Drafting instructions
5.1.1 What are drafting instructions?
Drafting instructions provide the link between the policy and the legislation.
Drafting instructions are usually written and provide the legislative drafter with an explanation of:
- what needs to be done and why – what is the policy that needs to be put into law;
- when the draft legislation is required by and when it should commence;
- what is the background and context for the reform; and
- any legal issues of which the drafter should be aware.
5.1.2 Why do drafting instructions matter?
The importance of clear drafting instructions cannot be underestimated. Not only do good instructions contribute to a smoother and more efficient drafting process, but they are critical to achieving clear and good quality laws. Where instructions are unclear, ambiguous or lacking in detail, not only will time be wasted, but there is the potential for the resulting legislation to also be unclear, ambiguous and confusing.
Imagine, for example, a drafter receives an instruction that the government would like all people fishing in Town A be licenced.
A range of policy issues are left undefined, such as:
- Does this apply to residents of Town A only or to visitors to Town A also?
- Where are licences obtained?
- How long do licences last for?
- Will there be a fee for a licence – if so, how will that be collected?
- What geographical area does this apply to?
- Are there any exceptions?
- What are the consequences of fishing without a licence?
- What is the problem the issuing of licences is hoping to address?
5.1.3 What is the role of the instructor?
As the instructor it is your role to tell the drafter everything he or she needs to know in order to be able to effectively and efficiently prepare a draft that solves the policy problem the reform is intended to address.
The instructor will be the primary contact point for the drafter on everything to do with the reform, so it is critical that the instructor:
- is fully across the policy problem;
- understands how the reform will address the policy problem;
- understands the current legal framework and how the reform will affect it; and
- is familiar with the legislative process.
Ideally, all the policy decisions regarding new legislation should be clearly determined before you start working with your drafter to prepare the legislation. However, in reality this is rarely the case and your drafter will often identify further policy questions that you will need to consider. It is your role to resolve these matters in a timely manner for your drafter.
5.1.4 What is the role of a legislative drafter?
It is the role of the legislative drafter to receive the drafting instructions and ‘translate’ them into a legally effective draft bill.
The drafter is not the policy officer. Although the drafter may point out gaps in policy, they will ask you as the policy officer to clarify these issues. It is not the drafter’s role to develop policy or make policy decisions.
In order to give effect to instructions, a drafter will strive to produce a draft that:
- gives effect to the stated policy intention;
- is clear and easily understandable;
- is legally effective – for example, a draft that is made within authority of the Constitution or enabling legislation;
- is consistent with the existing legal framework; and
- is error-free.
The drafter will ask many questions during the drafting process to achieve this – and you must be prepared for this.
5.2 Giving instructions
5.2.1 Drafting checklist
The following checklist provides a helpful overview of what should generally be included in drafting instructions. However, your drafting office may have its own guidelines for drafting instructions and, if so, you should familiarise yourself with those.
Provide the name(s) and contact information for the instructor. Ideally there should be at least two people with sufficient knowledge of the project to be able to assist the drafter.
|Background and purpose|
Describe how this proposed reform has come about and the policy problem it is aiming to ‘solve’. Describe the objective of this reform.
Provide the details around who gave authority for this reform to occur. If it was cabinet authority, provide the details about when the decision occurred. If authority was given by a particular person (e.g. a minister) provide the name and title of the person who gave that authority and provide any written correspondence seeking and granting the authority.
If given, state the priority for this reform set by Cabinet/the person who gave policy authority.
Set out the proposed timetable for the reform, including:
State if there is a particular short title or name that the legislation should have.
|Relationship to existing laws|
State whether there are any existing laws (both primary acts and legislative instruments) dealing with this subject matter. If there is, describe how the proposed reform will fit with the existing framework. Include which ministry/department is responsible for any existing legislation.
|Relevant legislation or legal opinions|
Provide any relevant legal advice or opinions that have been given on the matter, including any relevant case law.
|Related proposals and projects|
Describe any related projects, either existing or proposed, including any related projects for which another ministry/department is responsible.
|Summary of consultations|
Summarise any consultations that have occurred, or are intended to occur, on the reform including with particular stakeholders, other ministries/departments and the general public.
|For legislative instruments, the legislative power for making the instrument|
If your instructions relate to a legislative instrument, include the name and particular section of the Act or instrument which provides the power to make the proposed instrument. Also include the title of the person who has the power to make the instrument.
Provide instructions on when the bill should commence. Keep in mind that different parts of the bill may commence at different times. If commencement of the bill is contingent upon an event (for example, the commencement of a related piece of legislation), provide information about that event.
|What is to be done and why|
Provide detailed instructions for each policy proposal.
|Power to make instruments|
If your reform includes a bill or instrument that will provide the power to make an instrument, the instructions will need to be provided on what matters should be addressed by the instrument.
State whether any consequential amendments of existing legislation will be needed and list the affected provisions. Provide instructions on how the affected provisions are to be amended.
Detail any arrangements required to transition the existing legislative scheme to the new one. State what kind of provisions will be required to achieve the desired transition.
Consider whether the proposal is consistent with the Constitution and that the reform is within the limitations set by the Constitution. You may need to seek legal advice about this before issuing instructions.
Consider whether your law reform may have implications for customary law,
including what customary institutions and practises may be relevant and whether your reform may inadvertently alter or negate customary law.
|Acts of general application|
Provide information on whether provisions of any acts of general application will apply to your reform.
|International obligations and standards|
State whether there are any international treaties relevant to the reform, including what obligations arise.
|3.4 and 3.6|
Are there any human rights implications relevant to the reform being undertaken?
Will there be any impact on vulnerable groups, e.g. children, women, the elderly, people with a disability etc?
If the reform will include a financial provision, provide necessary instructions on how the money is to be collected, held, accounted for and distributed.
|Powers to make administrative decisions|
If the reform includes the power to make a decision of an administrative nature, include information on who should have the power to make that decision, what the nature and criteria of that decision should be. Also include any discretionary powers with regards to the decision, and whether decisions are subject to review and by whom.
If the reform creates particular powers for a person or body, provide information on whether any of those powers can be delegated and to whom.
If it has been decided that a criminal offence is necessary, state the relevant physical and fault element for each offence. Also include what the penalty should be and state any defences which should apply to the offence.
If relevant, provide any details around the infringement notice scheme.
Set out the detail of any coercive and enforcement powers intended to be used by government, and who should be able to exercise them.
|Creation of new statutory entity|
If a new statutory entity is to be created by the reform, provide instructions on the requirements for its composition, functions, powers, administration and reporting/ oversight.
If the reform will involve amending other pieces of legislation, identify each provision which is to be amended and provide instructions for each amendment.
Include any other relevant documentation, such as: relevant legislation, copies of court cases, copies of legal advice, relevant cabinet submissions or decisions, model provisions etc.
Include any further relevant information.
As a starting point, you should provide the legislative drafter with some background to the policy. This includes a description of the broad policy proposal as agreed by the minister and the objective of the reform. This should be in general terms. The specifics can be provided within the more detailed instructions. The background should just give the legislative drafter an understanding of the policy story.
In the background portion of instructions, you should also include things like:
- an overview of the legislative scheme being created/amended/replaced – this provides the drafter with an understanding of the current arrangement so they may determine where to best fit the proposed reforms, for example, whether new legislation is necessary or existing legislation can be amended;
- the timetable for the reforms – including when versions of the draft will be required (for example, for consultation purposes) as well as the final deadline for introduction to Parliament;
- any related proposals;
- identification of empowering provisions – for example, if the instructions are for regulations, then the enabling provision of the Act should be identified and an explanation provided of how the proposed regulations are within the scope of the enabling provision; and
- an outline of any consultations that took place and a summary of their outcome, including consultations held with other departments, relevant stakeholders or the public more generally.
5.2.3 The specifics
Where possible, you should break the broad policy proposal into individual concepts so that you provide specific instructions in relation to each.
The ‘House with five Windows’ analogy can remind you to provide as much detail as possible. Using this analytical tool will also help you to spot potential policy gaps before the instructions reach the legislative drafter.
As an example, if the government wanted to provide an incentive payment to parents for vaccinating their children, applying the House with five Windows tool might prompt you to consider and provide instructions for issues like:
- Just parents? What about other people the child lives with or other kinds of guardianship?
- Who is authorised to give the vaccinations?
- Who is responsible for making the payments?
- Vaccinations for which diseases?
- What happens if parents do not get their children vaccinated – will there be any negative consequence for them?
- All children or just children of a certain age?
- Is there a certain time that vaccinations need to have been given by for eligibility? For example, by the time the child turns two?
- Are there particular providers parents are required to use in order to be eligible for the incentive payment?
- Does this scheme apply to all children in the country or just in a certain geographical area? For example, in the capital city where diseases might spread more easily.
- Is there a particular disease that has become a concern?
- Have vaccination rates fallen in recent times? Why?
- How will parents prove that vaccinations have taken place?
- How will payments be given? For example, cash payment, cash transfer, voucher, cheque etc.
As well as providing instructions in this narrative form, tools such as diagrams, flowcharts and tables can help explain processes and relationships between concepts.
5.2.4 Defining terms
Many of the terms used in your legislation may need to be defined. Definitions not only make the legislation more readable (by reducing the need to repeat concepts), but help minimise ambiguity and interpretation problems. Your legislative drafter should be able to help you identify which terms require definitions, but you should also be mindful of this and form your own views.
5.3 Further issues to consider
5.3.1 Using overseas legislation and lay drafts
Frequently, an instructor will have seen legislation from another country that appears to address the policy issue they are currently facing. The temptation in these cases is often to either use the overseas example, substituting one country’s name for another, or to instruct the drafter to follow this example. Alternatively, the temptation exists for instructors to simply draft what they think the legislation should look like in an effort to assist the legislative drafter.
You should avoid these practices. Legislative drafters need to understand the intention behind provisions, not simply see provisions. As each country’s legislative framework and context is different, inserting legislation from another country without adapting it appropriately may lead to messy and unsatisfactory outcomes.
While providing examples from other countries is common, and may be used as an illustration or guide for how legislation might look, it is not enough to simply provide the example without explanation. The legislative drafter cannot be expected to understand what it is about that example that is considered ‘good’ and how it should fit within the broader context. Instead, each example provision being provided should include an explanation of the objective and rationale for the example, including instructions on where the example should be departed from and why.
Instructions should describe the effect of a provision – that is, what the provision is trying to achieve – rather than provide the actual wording of the provision. You should not tell the legislative drafter to use a specific form of words in the Bill.
5.3.2 Power to make legislative instruments
The power to make a legislative instrument is found in the primary piece of legislation, i.e. the Act to which the legislative instrument relates. As a legislative instrument must be made within the power granted by the Act, it is important when developing that power to think about its nature and scope. How broad should it be? Should it be limited to specific subject matter? Who may make the legislative instrument, e.g. the minister? Are there any conditions imposed on the exercise of the legislative instrument making power?
It is common for Acts to provide general instrument making powers by including in the Act that instruments may be made which are ‘required or permitted’ or are ‘necessary or convenient’. While such terms are relatively general, they cannot be used to extend the scope or general operation of the Act. Legislative instruments can only be used to flesh out the framework of the Act and support its operation.
An example of a general regulation making power can be seen in the Statistics Act 2015 (Tonga).
7. Minister responsible for statistics
- The minister may make regulations as are necessary to give full effect to the provisions of this Act and its administration.
5.3.3 Supporting documents
It is important to also provide your legislative drafter with any other relevant documentation. This may include:
- any relevant legislation;
- any legal advice which has been obtained;
- details and summaries of consultations which have been carried out in relation to the policy;
- copies of any relevant court cases;
- details of any relevant international agreements or obligations; and
- any cabinet submissions or decisions.
5.4 Reviewing the draft
5.4.1 What should you do when you receive a draft bill back?
Once you receive a draft bill back from the legislative drafter, it is important to review it with a critical eye to ensure it gives effect to the policy intention. There are a few things to look for when reviewing the draft:
- Has the draft given effect to the policy proposed? – remember to check it against your instructions to make sure everything has been captured appropriately;
- Is there anything missing? – reviewing the draft is an important opportunity to determine whether there are any gaps in the policy for which further instructions will be needed;
- Has the legislative drafter raised any questions that need to be resolved?
- Does the draft make sense to you? – do not be afraid to point out if something does not make sense to you in the draft. As the policy officer, you are best placed to be able to assess this and if it doesn’t make sense to you, then it will not make sense to those without your policy knowledge;
- Are the provisions in a logical order and easy for the reader to follow?; and
- Are there any grammatical errors, spelling errors or internal inconsistencies?
When reviewing the draft it is helpful to test it by generating practical scenarios in which the legislation will be used and assessing how it will operate.
Given that legislative drafting is inevitably an iterative process, you can expect to review and comment on several – often many – drafts before the bill is finalised.
5.4.2 Commenting on the draft
Comments on the draft can be made in any way (for example, in writing or during a face to face meeting), though the legislative drafter may have a preference on how they would like to receive feedback.
When providing comments, focus on the concepts rather than the particular words – for example, if the draft does not work, try to explain how the draft does not reflect the policy rather than return the draft with suggested wording. It is more useful to explain why the draft does not work, rather than how it should be fixed. Using examples to highlight the problems may also assist.
5.5 Explanatory material
In many countries draft legislation must be accompanied by explanatory material that explains how the law is expected to operate. Explanatory material is an important interpretation tool and can be used by a court and lawyers to assist in understanding the intention of the legislation. Due to the need to ensure that legislative provisions are short, simple and clear, explanatory material provides the opportunity for policy officers to explain what the policy intention of the legislative provisions are in more detail. This may include a summary of the reform and consultations held on the particular policy issue.
It is helpful to prepare the explanatory material at the same time the draft is prepared. Many decisions will need to be made about the draft as it is written and it is much easier to record the reasoning of these decisions at the time.