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 based on Acts of general application and established presentation methods, 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 and 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 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 when dispensing with terms having established meanings for users of legislation. Plain English may involve a balance of simplicity and legal certainty to ensure the law is both easily read and understood and legally effective to achieve the desired policy objectives.
Plain English is not achieved only by using simple language. Other devices are used to guarantee clear communication. For example, there are many ways a law can simply, accurately and unambiguously expose its intent: purpose clauses, preambles, clauses stating key or basic concepts and definitions, and 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 and Legislative Standards Act 1992
Drafters rely on the Acts Interpretation Act 1954, the Statutory Instruments Act 1992 and the Legislative Standards Act 1992 during the drafting process. Therefore, instructing officers should be familiar with these Acts.
The Acts Interpretation Act 1954 contains provisions that apply generally to all legislation as aids in the interpretation of legislation. Taking advantage of the effect of these provisions results in clearer drafting.
The Statutory Instruments Act 1992 brings together and 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, states OQPC's functions and provides guidelines for the application of the fundamental legislative principles.
3.5.3 Examination for compliance with fundamental legislative principles
Under the Legislative Standards Act 1992, section 7(g)(ii) and (h)(ii), OQPC's functions include advising on the application of fundamental legislative principles. Chapter 7 of this handbook deals with fundamental legislative principles.
OQPC is an internal control mechanism for fundamental legislative principles. The Scrutiny of Legislation Committee is an external control mechanism for them. The Scrutiny Committee is required to report to the Legislative Assembly on the application of fundamental legislative principles to Bills and subordinate legislation. OQPC regularly considers the Scrutiny Committee's conclusions. Advice provided by OQPC during the drafting process about the application of fundamental legislative principles is commonly based on earlier comments by the Scrutiny Committee in its Alert Digests.
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:
- a drafter who has primary responsibility for drafting the legislation (commonly referred to as the 'D1')
- another drafter who performs a back-up and quality assurance role (the 'D2')
- legislation officers who perform a support, editorial and publishing role.
An appropriate quality assurance check by OQPC at the end of the drafting process can involve a variety of considerations. For example, it may involve considering:
- whether the rules of law in the draft are effective and sufficient
- the inherent quality of the policy from a legal professional viewpoint
- whole-of-government perspectives
- the draft's consistency with the Cabinet decision approving the preparation of the Bill
- the draft's consistency with longstanding Queensland Government policy
- the draft's consistency with fundamental legislative principles
- the quality of the draft as an instrument of policy implementation.
Also, at an editorial and publishing level it may involve considering:
- consistency of language both within the legislation and with other Queensland legislation
- consistent use of formats, styles and expressions
- sense and flow of words and sentences, including the flow of subsections into paragraphs and subparagraphs
- 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 these matters can only be fully considered after what is effectively the final draft of the Bill has been settled between drafter and instructing officer in terms of the Bill's content. Therefore, time is needed after the final draft is approved for quality assurance checking. The overall quality of legislation can be seriously undermined if the time for carrying out these tasks is truncated.
Last reviewed: 17 July, 2009
Last updated: 22 July, 2009
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