3.4 Role of instructing officer in providing effective drafting instructions
The instructing officer is a key player in the drafting process and both the time taken 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 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 drafting within the whole of government context. In particular, when a drafter raises a possible breach of fundamental legislative principles, the instructing officer should realise that this is the drafter's duty and 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, to tell the drafter all he or she needs to know to be able to draft legally effective legislation that implements the policy, and to make decisions on issues arising during drafting. To maximise use of resources, the instructing officer must have sufficient understanding or seniority, and full authority, to give instructions.
Even though the Cabinet legislation and liaison officer (CLLO) provides an important contact point with OQPC, often the CLLO is not the instructing officer. Similarly, although there may be a number of policy officers involved in a Bill, for practical reasons there should be only a single instructing officer responsible for coordinating instructions.
For the purposes of the process of instructing, an instructing officer needs to be familiar with:
- The Queensland Cabinet Handbook
- The Queensland Executive Council Handbook
- the Acts Interpretation Act 1954
- the Legislative Standards Act 1992
- the Reprints Act 1992
- the Statutory Instruments Act 1992
- current legislative regimes within their department
- similar regimes administered by other departments and in other jurisdictions
- recent drafting trends in Queensland.
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 a better quality product within a shorter period. CLLOs can provide help in preparing drafting instructions. 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 their 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 in the drafting process
- further instructions are likely to be more timely and therefore focus is maintained
- legislation of a high standard is completed in the shortest possible period
- the Authority to Prepare a Bill submission to Cabinet will be more comprehensive.
3.4.3 Drafting instructions - general requirements
Written 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. This will prevent a situation in which the drafter has to make something up to fill a gap.
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 provide optimum support for the drafting process, all aspects of proposals contained in them should have been resolved. In some cases, time constraints may mean that drafting must start while some facets of the legislation 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.
Explain specialised or technical terms. However, avoid specialised or technical jargon, unless the jargon is necessary.
Use words consistently throughout the instructions to avoid misunderstanding or misinterpretation.
Appropriate format
There is no set format for drafting instructions. However, 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
Include the instructing officer's name, address, telephone number, fax number and email address. This information will appear on the cover page of drafts of the Bill. Goprint will deliver the department's copies of the Bill to the address shown on the cover page. Contact information is easiest to find if it is stated clearly at the start or end of instructions. In addition, drafters can prioritise their workloads more easily if they know in advance of times the instructing officer plans to be absent.
If the instructing officer works part-time, it is highly desirable to nominate an alternative instructing officer and give OQPC his or her contact details.
Authority and priority
State the authority to draft the Bill, usually an Authority to Prepare a Bill approval.
Indicate the priority that has been given to the legislation and, in particular, when the legislation is required. The Queensland Cabinet Handbook deals with the government's legislative program. Matters covered include the formulation of the program, guidelines for programming proposed Bills, controlling the volume of legislation and monitoring the program.
Principal objectives
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 indicate the provisions of existing legislation that need to be understood, including any legislation to be amended. The instructions also should indicate the relationship between the proposed legislation and the relevant provisions of the existing legislation.
If proposed legislation affects legislation of other departments, include in the drafting instructions:
- a list of the other departments
- an indication of the extent to which the departments have been consulted
- an indication of any consultations that will take place in the future.
Mention any other legislative proposals that relate to the legislation, whether or not they are already before the Legislative Assembly.
Mention any aspect of the legislation that is politically sensitive.
Attach copies of relevant legal opinions. These could include opinions from the Solicitor-General, Crown Solicitor or, if native title is an issue, Indigenous Services within the Department of Natural Resources and Water. Relevant court decisions also should be mentioned.
Other matters that should be considered when drafting instructions are given are set out in Chapter 2.12 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 introduce 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.
Last reviewed: 17 July, 2009
Last updated: 22 July, 2009
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