3.3 Drafting process
The drafting process involves translating policy into a legally effective scheme. The process should allow the drafter to understand the policy and prepare a legally effective scheme by working with the instructing officer. It is a creative process and a draft-by-draft process.
3.3.1 The drafting process is creative
The drafter translates the policy contained in the drafting instructions into legislative form. The drafter is not a mere scribe and performs a role that affects the legislation’s final form. The drafting process must allow the drafter:
- to understand the drafting instructions and the policy
- to consider the legislative, and general law, framework in which the legislation is to operate
- to provide advice about alternative ways of achieving policy objectives and the application of fundamental legislative principles
- to draft the legislation using current legislative drafting practice
- to discuss revisions with the instructing officer
- to make changes and finalise the legislation.
3.3.2 The drafting process is a draft-by-draft process
When a draft is prepared by the drafter, it will be given to the instructing officer for consideration and comment.
The instructing officer’s role includes giving constructive comments on the draft. Accordingly, the instructing officer must read and check the draft to ensure it gives effect to drafting instructions and to point out any problems with the draft. After receiving a draft, the instructing officer should:
- read the draft carefully to make sure he or she understands it
- test the draft against scenarios to make sure it gives effect to policy and does not have any unintended consequences
- check the draft for consistency to make sure it is internally consistent and, if appropriate, consistent with related legislation and the general law
- check the authority to draft the legislation, usually a Cabinet decision giving Authority to Prepare a Bill, to ensure all matters included in the draft are covered by the authority.
If there are matters the instructing officer wants the drafter to consider, the instructing officer should provide comments on them. The drafter will assume the instructing officer is satisfied with the parts of the draft on which he or she does not comment.
If a particular provision does not work or does not give effect to the policy, the instructing officer should raise the problem with the drafter, explaining the issue fully, and include an example demonstrating the problem. Attempting to redraft the provision, or returning the draft marked with suggested changes but without explanation, is far less useful to the drafter than a clear outline of the problem, presented in a way that is easy to understand.
Comments by the instructing officer may be given at a meeting or by email or phone. However, comments given orally about significant issues need to be confirmed in writing.
Once the drafter receives the comments, the drafter will revise the draft to take account of the comments and then provide the revised draft to the instructing officer for consideration and comment. The process will be repeated a number of times.
When the draft is almost finalised, OQPC’s internal quality assurance processes take place. Another drafter, who is usually more senior, will review the draft. Any concerns will be discussed with the instructing officer and appropriate changes made. This review by a senior officer may be repeated and the parliamentary counsel will also be given the opportunity to look at the proposed Bill. An OQPC legislation officer also takes over the control of the electronic version of the Bill and prepares the Bill for final supply. This is an editorial and publishing role.
Once the drafter and instructing officer agree the Bill is settled and ready for the department to submit to Cabinet by way of an Authority to Introduce a Bill submission, the instructing officer will prepare other necessary Cabinet documents, for example, the proposed explanatory notes.
