3.4 Role of instructing officer in providing effective drafting instructions
The instructing officer is a key player in the drafting process. Both the time required to draft and the quality of the drafting depends on the quality of the drafting instructions and the communication skills of the instructing officer. An instructing officer needs to be familiar with political and administrative considerations, the legislative context and the things required to be dealt with in legislation. The officer needs to work with the drafter to achieve the common goal of preparing legally effective legislation that gives effect to the appropriate authority for the legislation within the whole-of-government context. Considering fundamental legislative principles is an essential part of the process.
3.4.1 Role of instructing officer
An instructing officer must be able to explain the aims of a legislative proposal to the drafter, give the drafter the information necessary to enable the drafter to draft legally effective legislation that implements the policy, and make decisions on issues arising during drafting. To maximise use of resources, the instructing officer must have sufficient understanding, and full authority, to give instructions.
If there are a number of policy officers involved in a Bill, for practical reasons there should be only one instructing officer responsible for coordinating instructions.
For the purposes of instructing, an instructing officer should be familiar with:
- The Queensland Cabinet Handbook
- The Queensland Executive Council Handbook
- the Code of Practice for Public Service employees assisting or appearing before Parliamentary Committees
- the Acts Interpretation Act 1954
- the Legislative Standards Act 1992
- the Reprints Act 1992
- the Statutory Instruments Act 1992
- the Human Rights Act 2019
- current legislative regimes within their department
- similar regimes administered by other departments and in other jurisdictions
- fundamental legislative principles
- recent drafting trends in Queensland.
In the context of the Government’s target of reducing the regulatory burden on businesses and the community by 20 percent by 2018, an officer must think creatively about non-legislative approaches and, if legislation is necessary, legislative approaches that minimise the regulatory burden while achieving the required policy outcomes and being consistent with the principles of good legislation.
Drafting instructions template
An electronic annotated template for drafting instructions for a Government Bill is available on Govnet. An electronic annotated template for drafting instructions for a private member’s Bill is also available on Govnet. Use of these templates will assist with preparing effective drafting instructions, but is not compulsory.
3.4.2 Effective drafting instructions return direct benefits
Drafting instructions often form the initial and most important contact with OQPC. Investment of time and effort in preparing quality drafting instructions yields better quality legislation within a shorter period. The instructing officer responsible for the instructions might find it useful to seek comment from the department’s CLLO.
Initially, preparing effective drafting instructions may take an instructing officer extra time and effort. However, experience has shown there are direct benefits for the instructing department that more than justify the time and effort. Benefits to the department include:
- a complete first draft can be prepared more quickly
- the number of drafts is minimised
- fewer issues needing resolution arise during the drafting process
- legislation of a high standard is completed in the shortest possible period
- the Cabinet submission for Authority to Prepare a Bill will be more comprehensive.
3.4.3 Drafting instructions - general requirements
Drafting instructions should state:
- the general purpose, objective or philosophy behind the legislative proposal
- the main or basic concepts (‘Who and what are we talking about?’)
- the main rules or objectives (‘What is the main or basic thing we are trying to do?’)
- other rules or objectives (‘What other things are necessary to make the main or basic thing work?’)
- the way the rules or objectives work together (‘Are the things that we are doing consistent and compatible with each other?’).
In addition, instructions should identify, at least in general terms, rules or objectives that are proposed to be implemented using subordinate legislation. This allows the drafter to bring to the instructing officer’s attention at an early stage any possible concerns about the proposed split of matters between the relevant Act and subordinate legislation under the Act.
The instructions should identify the persons or things to which the legislation is to apply. Instructions should cover all aspects of the scheme from the big picture to matters of relatively minor detail.
A way to measure the effectiveness of drafting instructions is to ask:
- are they clear, concise, accurate and comprehensive?
- do they clearly identify:
- what has to be done?
- why it has to be done?
- when it has to be done by?
3.4.4 Drafting instructions - specific requirements
Drafting instructions in writing
The instructing department must give initial drafting instructions in writing. OQPC will only accept oral instructions in exceptional circumstances.
Proposals fully developed
For instructions to enable optimal drafting, all aspects of proposals contained in them should be fully developed. Occasionally, time constraints mean that drafting must start while some facets of the policy are still being developed. In those circumstances, matters still undergoing consideration or subject to change should be clearly identified.
Clarity and consistency
Drafting instructions written in plain English and in narrative form enable the instructing officer’s intentions to be more easily understood.Specialised or technical terms should be explained. However, unless it is necessary, specialised or technical jargon should be avoided. Words should be used consistently throughout the instructions to avoid misunderstanding or misinterpretation.
Appropriate format
There is no set format for drafting instructions but a template can be found on Govnet to assist in addressing the issues mentioned below. To make it easier to refer to particular provisions in the instructions when issues are being discussed, the drafting instructions should:
- be dated
- use numbered paragraphs
- have numbered pages.
Other material to be included
The instructing officer’s name, address, telephone number and email address should be clearly identified in the instructions. This information will then appear on the cover page of drafts of the Bill. However, when the Bill is printed for introduction to Parliament, the government printer will deliver the department’s copies of the Bill to the address provided by the departmental CLLO.
Instructing officers should also tell drafters if they work part-time, or if there are significant periods of time in which they plan to be absent. This will enable the drafter to prioritise workloads. If the instructing officer works part-time, the contact details of an alternative instructing officer should also be given to OQPC.
Authority and priority
The instructions should clearly identify the authority to draft the Bill. This will usually be a Cabinet decision approving a submission for Authority to Prepare a Bill.
The instructions should indicate the priority that has been given to the legislation and, in particular, when the legislation is to be introduced. The Queensland Cabinet Handbook deals with the government's legislative program. The handbook describes how the program is formulated, how the volume of legislation is controlled, and how the program is monitored.
Principal objectives
The instructions should state the principal objectives to be achieved by the legislation, that is, what has to be done and why it has to be done. It may be necessary to attach background papers. Also, it may be helpful to give examples of the problems the legislation is intended to overcome.
Legislative environment
The drafting instructions should identify the legislation that needs to be amended, and any other legislation that is relevant to the proposed legislation. They should also should indicate the relationship between the proposed legislation and the existing legislation.
If the proposed legislation affects legislation of other departments, the following should also be included in the drafting instructions:
- a list of the other departments
- whether those departments have been consulted
- whether consultations will take place in the future.
The drafting instructions should also mention any other legislative proposals that relate to the legislation, whether or not they are already before the Legislative Assembly. They should also mention any aspect of the legislation that is politically sensitive.
Copies of relevant legal opinions (for example, from the Solicitor-General or Crown Solicitor) should be attached. Relevant court decisions should also be mentioned.
Other matters that should be considered are set out in Chapter 2.11 and Chapter 7.
Departmental drafts
OQPC does not require, nor does it encourage, departments to provide drafting instructions by way of draft legislation (a ‘departmental draft’).
Departmental drafts can cause unnecessary problems. The drafter may interpret the words used in the draft in a way different from that intended. Without clear explanation, the drafter may not fully appreciate the precise nature and extent of the legislative proposal.
If a department prepares a departmental draft and agrees on its terms with relevant stakeholders, serious problems can arise because of the significant differences between the departmental draft and the draft introduced into the Legislative Assembly.
A departmental draft can be particularly inappropriate for minor amendments to existing legislation or drafts based on well-established precedents (for example, commencement proclamations) because the issues may appear deceptively simple.
The above comments are not intended to stop departments, by arrangement with OQPC, supplying instructions in the form of a marked update of existing legislation when there is no possibility of misunderstanding, for example, if all that is involved is an update of fees in a fee schedule. However, ordinarily, there is no substitute for comprehensive drafting instructions in narrative form.
