3.5 Role of drafter
The drafting process is designed to allow the drafter to perform the drafter’s primary role of ensuring the proposed legislation achieves the policy objective in a legally effective way. The drafter must also draft in plain English using OQPC’s current legislative drafting practice, take account of Acts of general application, provide advice about fundamental legislative principles and comply with processes designed for quality assurance.
3.5.1 Plain English
Plain English involves the deliberate use of simplicity to achieve clear, effective communication. It is commonly considered to be the best technique for effective communication in legislation.
The plain English approach to legislation is based on the idea that laws should be as simple as possible so the ordinary person in the community can understand them. Further, the ordinary person is regarded as the ultimate user of the law rather than bureaucrats and lawyers. A law that is easy to understand is less likely to result in disregard of the law or dispute.
Plain English does not involve the simplification of a law to the point it becomes legally uncertain. In particular, care needs to be taken that legal uncertainty is not created by dispensing with terms that have an established legal or technical meaning. Plain English may involve balancing simplicity and legal certainty to ensure the law is easily understood and legally effective.
Plain English is not achieved only by using simple language. Other devices are used to guarantee clear communication. For example, legislation can simply, accurately and unambiguously state its intent by the inclusion of purpose clauses, preambles, clauses stating key concepts or definitions, or explanatory provisions. Using simple drafting devices to organise, orient and explain legislation can help establish its context, relevance and meaning.
3.5.2 Acts of general application - Acts Interpretation Act 1954, Statutory Instruments Act 1992, Legislative Standards Act 1992 and Human Rights Act 2019
The Acts Interpretation Act 1954, the Statutory Instruments Act 1992 and the Legislative Standards Act 1992 are Acts of general application that form the foundation of the Statute Book. Therefore, instructing officers must be familiar with these Acts.
The Acts Interpretation Act 1954 was originally known as the Acts Shortening Act. It contains provisions that apply generally to all legislation. Being familiar with these provisions will result in clearer and more concise drafting.
The Statutory Instruments Act 1992 clarifies the law about statutory instruments, particularly in relation to the power to make statutory instruments. The expression ‘statutory instrument’ is defined in detail in the Statutory Instruments Act 1992, section 7. Statutory instruments include subordinate legislation.
The Legislative Standards Act 1992 establishes OQPC as an independent statutory office, states OQPC’s functions and provides guidance for the application of the fundamental legislative principles.
Instructing officers should also be familiar with the Human Rights Act 2019. The Human Rights Act 2019 protects 23 fundamental human rights that are recognised in international covenants, places obligations on public entities to act compatibly with human rights, and requires statutory provisions, as far as possible, to be interpreted compatibly with human rights. Importantly for instructing officers, the Act requires all new legislation to be accompanied by a Statement of Compatibility (for Bills) or a Human Rights Certificate (for subordinate legislation), and therefore requires human rights to be considered early in the development of proposals for legislation. See chapters 4.5 and 6.12 for more detailed information.
3.5.3 Examination for compliance with fundamental legislative principles
Under the Legislative Standards Act 1992, section 7(g)(ii) and (h)(ii), OQPC is required to advise on the application of fundamental legislative principles. Chapter 7 of this handbook deals with fundamental legislative principles.
From 1996 to 2012, the former Scrutiny of Legislation Committee was required to report to the Legislative Assembly on the application of fundamental legislative principles to Bills and subordinate legislation. The Committee delivered numerous reports addressing fundamental legislative principles during this time.
The role of the former Scrutiny Committee now belongs to various portfolio committees, each of which continues to report on fundamental legislative principles. OQPC regularly considered the former Scrutiny Committee’s conclusions and now considers reports by portfolio committees. Advice provided by OQPC during the drafting process about the application of fundamental legislative principles is commonly based on earlier comments by the former Scrutiny Committee and the portfolio committees.
Information about Fundamental Legislative Principles, which is updated and maintained by OQPC, is available on the Queensland legislation website.
3.5.4 Quality assurance checks - the final process
Drafting is a team project that involves OQPC officers, the instructing officer and sometimes other officers from the instructing department or even another department. The OQPC officers include:
- the drafter who has primary responsibility for drafting the legislation (commonly referred to as the ‘D1’)
- another, usually more senior, drafter who performs an oversight and quality assurance role (the ‘D2’)
- legislation services officers who perform a support, editorial and publishing role.
The quality assurance check by the D2 at the end of the drafting process involves a number of considerations. These include:
- whether the rules of law in the draft are effective and sufficient
- the inherent quality of the policy from a legal professional viewpoint
- whether the draft incorporates a whole-of-government perspective
- the draft’s consistency with the authority for the preparation of the Bill
- the draft’s consistency with fundamental legislative principles
- the overall quality of the draft as part of the Statute Book.
The editorial and publishing check aims to achieve:
- consistency of language both within the legislation and with other Queensland legislation
- consistency of formats, styles and expressions
- accurate flow of words and sentences, including the flow of subsections into paragraphs, subparagraphs and subsubparagraphs
- correct numbering of provisions, including inserted provisions
- correct cross-references within the legislation and correct references to other legislation
- textual accuracy of amendments of other legislation to ensure that, when the directions for amendment take effect, the legislation being amended will read sensibly
- appropriate pagination.
Many of the editorial and publishing matters can only be fully considered after the final, or near final, draft of the Bill has been settled by the drafter and instructing officer. Accordingly, the drafting timetable must leave adequate time for these tasks. The overall quality of legislation can be seriously undermined if the time for carrying out any of the tasks relating to quality assurance control is truncated.
