Overview

OPC’s outcome for 2018-2019 is “A body of Commonwealth laws and instruments that give effect to intended policy, and that are coherent, readable and readily accessible, through the drafting and publication of those laws and instruments”.

The first purpose that this gives rise to is to “enable government to carry out its legislative program by drafting Bills, ExCo instruments and a range of other instruments”.

OPC achieves this purpose by working with government agencies to clarify policy proposals and implement the intended policy of the executive government in legally effective legislation. The legislation drafted is comprehensible, workable and in a form available for scrutiny, and approval or rejection, by the Parliament.

OPC has met the targets for the performance criteria for this purpose in 2018-2019.

Bills and ExCo instruments were drafted in accordance with government priorities and in a form suitable for consideration and enactment.

Client feedback surveys during 2018-2019 indicated that all Bills and instruments reflected their sponsors’ policy intentions.

Minor technical flaws have been detected in a small number of Bills. These have been, or will be, corrected through the Statute Law Revision process or through editorial changes made using First Parliamentary Counsel’s powers under the Legislation Act. Minor technical flaws detected in instruments are addressed using First Parliamentary Counsel’s editorial power or through the next relevant drafting project.

Clients were also surveyed on their overall satisfaction with the drafting process and the resulting legislation. On a rating scale of 1 to 5, the average response for Bills was 4.85 and the average response for instruments was 4.8. Both of these are well above the target of 4.

Drafting standards are issued and formatting conventions are set by the First Parliamentary Counsel to ensure a consistent approach is taken in drafting.

The drafting standards and formatting conventions were applied consistently to Bills and ExCo instruments.

Quality assurance through editorial checking ensured drafting standards and formatting conventions were applied consistently and legislation was accurate and readable.

Client feedback surveys during 2018-2019 indicated that all Bills and instruments were easy to understand, having regard to the inherent complexity of the subject matter.

Bills

Before each parliamentary sittings, the Government formulates the program of Bills that it requires to be drafted for the sittings. Since it may not be possible for all Bills on the program to be drafted, a drafting priority is given to each Bill.

On the basis of this program, drafters in OPC are instructed by departments or other agencies on the policy to be effected by each Bill.

In consultation with instructing officers, the drafters consider the constitutional and legal background against which the Bill is to be framed, analyse the policy and determine the structure of the Bill. They then draft the Bill in terms intended to give effect to the policy in as precise and clear a manner as possible.

When a Bill is completed, OPC arranges for the Bill to be printed in sufficient numbers for consideration by the Parliament.

If the Government decides to amend a Bill during its passage through the Parliament, drafters in OPC prepare the necessary amendments and provide copies to the Parliament.

Drafting resources applied according to government priorities

Drafting resources were applied, and Bills were drafted, in accordance with government priorities.

Most category T Bills were drafted and introduced. Several Bills retained category T status to ensure access to drafting resources throughout the sittings concerned. Many category A Bills, and 6 category B or C Bills, were drafted and introduced.

Statistics for Bills introduced

The timing of the Federal election had a substantial impact on the number of Bills introduced as there were only 2 Parliamentary sittings during the year instead of the usual 3.

Over the year, 121 Bills drafted in OPC, totalling 4,069 pages, were introduced into the Parliament.

The table below gives more detailed figures for those Bills, broken down by parliamentary sittings periods.

The figures in the table also indicate the total number of Bills on the original program for each sittings that is set by the Parliamentary Business Committee of the Cabinet (PBC) at the end of the preceding sittings. As the original program is subject to variations during the sittings concerned, the number of Bills in a particular category that are introduced may exceed the number on the original program.

An understanding of the programming approach used by PBC is necessary to make sense of the tables. This involves dividing the legislation planned for a parliamentary sittings into 4 categories:

• Category T (“time critical”): These Bills are intended to be introduced and passed in a single sittings.
• Category A: Most important after category T. Generally intended for introduction, but not passage, during the sittings.
• Category B: Next most important. Generally intended for introduction, but not passage, during the sittings.
• Category C: Less important, or less likely to be ready for introduction (e.g. because final policy is dependent on the findings of a review that will not be completed until late in the sittings).

Some Bills in categories A, B and C may not be intended for introduction in the sittings concerned. These are Bills that are very large, or are required for consultation purposes before introduction. Drafting of such Bills needs to be started well before the sittings proposed for introduction.

Alternative drafting

During the year, the Treasury continued a trial of using drafters other than OPC drafters for some legislation.

The alternative drafters drafted material for 8 Bills, totalling 87 pages, that were introduced during the year.

Client feedback

OPC surveys its direct clients (agency instructors) about all Bills drafted. Among other things, clients are asked whether the Bills as introduced reflect their policy intentions. Survey responses for 2018-2019 indicated that all Bills reflected their sponsors’ policy intentions. However, since Bills are not introduced without clearance from those sponsors, it would be surprising if sponsors did not believe that Bills reflected the sponsors’ policy intentions when they were introduced.

The target in the PBS for the average response to “overall satisfaction” was 4.0 out of 5 (where 5 is the highest rating). The result for 2018-2019 was 4.85 out of 5.

Comments included in responses to the client surveys reinforced this very high degree of satisfaction with OPC’s services. Comments in response to the question “What did you like most about this experience with the Office?” included:

“The drafters were excellent at getting across the new legal area and issues with extreme haste. In particular, there were multiple occasions where we explained complex legal concepts particular to our area and the drafter was immediately across them and 100% consistent on her approach to those issues from there on.”

“Our OPC drafter met with our policy and legal team early in the drafting process and took time to analyse and understand the issues raised by our project. This was invaluable to the success of the project.”

“The drafter was very responsive to requests to discuss and explain drafting approaches. The drafter made herself available whenever needed, often at short notice, and was willing to discuss issues at length and provided valuable assistance.”

“The drafter organised several teleconferences to discuss issues, outline constraints and find solutions.”

“The drafter was always very prompt at each stage, including working within very strict and short timeframes at the end of the drafting process.”

“This Bill had significant interactions with other Bills that were either before the Parliament or that had not commenced. The drafter was excellent at recognising the issues and at finding solutions.”

“OPC’s flexibility in dealing with us is always appreciated. We also appreciate having the same drafter assigned across different projects on the same Act.”

“Our policy changes a lot. OPC does an exceptional job of keeping up.”

“We appreciate OPC being available to talk directly to our stakeholders at times (i.e. implementing agency, our Ministerial office, other impacted Departments).”

“I continue to be amazed by the way your team can pick up such a broad range of (often) very technical concepts so quickly.”

“The drafter was always courteous and helpful in developing this Bill, particularly finding simple, workable solutions to the issues we encountered along the way.”

Parliamentary amendments

The number of parliamentary amendments drafted by OPC in 2018-2019 was 1,246. This is similar to the previous year.

OPC keeps records of the numbers of parliamentary amendments drafted and the proportion of those amendments required to correct drafting errors in the Bills concerned. The figures are set out in the table below.

The table also shows figures for reporting years since 2011-2012, to enable trends to be identified. The table relates to the numbers of amendments drafted in OPC, not all of which were moved in the Parliament.

Amendments described as “government policy change” proposed changes to policy positions already dealt with in the Bill concerned. Amendments described as “government new policy” added new material, dealing with new policy, to the Bill. Generally, these represented cases in which a Bill already in the Parliament was seen as a convenient vehicle for additional but urgent legislative provisions.

Amendments described as “non-government amendments” are very rarely drafted by OPC on instructions from the non-government members concerned. Usually they are prepared on instructions from departmental or ministerial staff for use in negotiations with non-government members.

The number of amendments to correct drafting errors was once again very low.

Instruments

OPC provides government agencies with drafting services for subordinate legislation.

OPC provides instrument drafting services that are tied to OPC under the Legal Services Directions 2005 to sponsoring agencies on a budget-funded basis. OPC also provides instrument drafting services that are not tied to OPC to government agency clients on a contestable, user-pays basis.

OPC has a bidding and priority system for instruments which is very closely based on the system for Bills.

The main difference is that there is no ministerial involvement in determining the final priorities. Where necessary, this will be done by OPC in consultation with the relevant government agencies.

In addition, the priorities used are 1, 2, 3 and 4 (rather than T, A, B and C).

The priority system has been very useful for OPC in planning instrument drafting work. It also appears to be assisting instructing agencies in achieving greater coordination of their instrument drafting.

As OPC drafts both Bills and instruments, drafters have been able to work closely on significant projects that required changes to both Acts and subordinate legislation. This has facilitated a more effective and efficient management of projects across both legislation processes.

Budget-funded instrument drafting services

Under the Legal Services Directions 2005 the drafting of regulations, Ordinances and regulations of non-self-governing Territories, and ExCo instruments, is tied to OPC and is provided on a budget-funded basis. Drafting services are also provided on a budget-funded basis for rules of court.

During 2018-2019, 348 ExCo legislative and notifiable instruments drafted by OPC, totalling 5,218 pages, were made and registered on the Legislation Register.

User-pays drafting services

Instrument drafting services that are not tied to OPC are provided on a contestable, user-pays basis. Editing, compilation and related IT services for instruments that are not tied to OPC are also provided on a user-pays basis. The fees for these services are consistent with the competitive neutrality guidelines and are relied on by OPC as part of the funding mix that assists to sustain the delivery of all its functions.

During 2018-2019, approximately 175 other legislative and notifiable instruments, totalling 2,161 pages, were drafted by OPC on a user-pays basis for government agency clients and registered on the Legislation Register.

Client feedback

OPC surveys its direct clients (agency instructors) about instruments drafted by OPC.

The target in the PBS for the average response to “overall satisfaction” was 4.0 out of 5 (where 5 is the highest rating). The result for 2018-2019 was 4.8 out of 5.

Comments included in responses to the client surveys reinforced this very high degree of satisfaction with services provided by OPC. Comments in response to the question “What did you like most about this experience with the Office?” included:

“OPC responded very promptly to this drafting request, which was submitted with no notice and completed within a very short timeframe. While the drafting was simple and minor, it was completed during a demanding period with professionalism and care.”

“The drafter provided an outstanding level of service to the Department in relation to this instrument. He showed good judgement, his work was timely. He was resilient and responsive to policy changes. He guided us through the implications of those changes with skill.”

“The team were responsive, helpful in identifying issues and respectful in suggesting and negotiating options.”

“The drafters were always willing to explain drafting approaches and principles. The drafters ensured that as instructors we were properly informed on all relevant risks and mitigations on the draft instrument.”

“It was a simple instrument, and the drafter did not seek to introduce unnecessary complexity.”

“The drafter was very responsive and listened to the instructors' perspectives, and always engaged constructively.”

“The plain English approach to drafting was very useful, and helped our Department identify a policy issue that needed clarification during the drafting process.”

“We were impressed with the drafter’s ability to find simple drafting solutions to what proved to be complex policies.”

“The team went above and beyond to gain an understanding of the issues, develop solutions and even identify issues which we were unaware of.”

Legislative drafting capability

Building and maintaining drafters’ capability for long-term viability of resources

For OPC to achieve its legislative drafting purpose, and meet the related performance criteria, into the future, it is essential that OPC’s drafting capability is maintained.

In most years, OPC’s turnover of drafting staff has been extremely low.

This very low turnover (about 3% per annum for a number of years) enabled OPC to build up a strong group of experienced drafters. It also meant that OPC did not need to recruit to the same extent that it had in previous years.

OPC recruited 3 new drafters during 2018-2019.

Assistant drafters working on Bills work closely with senior drafters (SES or Statutory Office Holders). The primary purpose of this arrangement is to develop the drafting skills of the assistant drafters, while allowing the assistant drafters to make a significant contribution to OPC’s drafting output.

Drafters working on instruments generally work in a team arrangement with 2 assistant drafters and one SES drafter. On any particular instrument, there will generally be 2 drafters working together, with one doing the principal drafting and the other checking or settling the work.

Legislative drafters have maintained and improved their drafting skills and knowledge through working in teams in a range of subject areas and through participating in various OPC professional development activities. See Chapter 4 (Management of human resources) for more details about this.

The Director of Drafter Training coordinates a program of formal training activities. A key component of this is the program of in-house seminars for drafters. The seminars cover emerging issues that drafters need to be aware of, as well as reminder sessions on topics that continue to be of relevance. The in-house seminars have been running for a number of years now and play an important role in the training and development of drafters.

Building instructor capability to enable efficient use of drafting resources and quality legislation

During the year, 8 Legislation Process Courses were run with a total of 239 participants.

A total of 268 Legislation Process Courses have been run since they began in 1994.

In addition, a couple of years ago OPC developed 3 new courses. These are an Advanced Legislation Process Course, a course on drafting simple instruments and a more advanced instrument drafting course. It is envisaged that more courses, possibly in the form of masterclasses on specific topics, will be developed.

This year, there were 3 Advanced Legislation Process Courses and 6 Simple Instrument training courses run with a total of 183 participants.

OPC considers that running these courses is an important way for OPC to contribute to the improvement of instructing and instrument drafting standards.

All of the courses were reviewed and redeveloped during the election period.

Standardisation and quality control of legislation

Drafting standards and quality assurance

Editorial checking ensured that drafting standards and conventions and the normal rules of spelling and grammar were applied consistently to all Bills and ExCo instruments. Editorial checking involves a range of automated checks (including spelling and grammar checking built into our word‑processing software, and customised checks to identify such things as departures from OPC’s basic formatting requirements), as well as manual checks by an editorial team. This manual checking detects errors of various kinds, including:

• words missing from sentences;
• inconsistencies of expression;
• punctuation errors;
• grammatical errors (e.g. inconsistencies of tense or lack of agreement between subject and verb);
• incorrect cross-references;
• misdescribed amendments; and
• clashing amendments.

It should be noted that apart from such things as basic grammar, formatting requirements and standard amending forms, there are different drafting styles and some will be more or less appropriate than others for particular legislation. This means that while all OPC legislation should (and does) look basically the same, different legislation might make different use of aids such as outlines and notes, and use more or less technical or colloquial language, depending on such things as the subject matter of the legislation and its intended audience.

OPC has a Drafting Manual that gives an overview of drafting matters and then refers the reader to particular Drafting Directions for greater detail.

The Drafting Directions are organised on a subject-matter basis. This arrangement makes the Drafting Directions easy to use.

The Drafting Manual and all current Drafting Directions are available from the OPC Drafting resources menu on OPC’s website: www.opc.gov.au.

Over the past few years, discussions have taken place amongst drafters on the desirability of even greater consistency in the drafting of provisions and ways in which such consistency could be achieved. This has led to a noticeable increase in consultation between drafting teams about the best drafting approach to adopt in particular cases.

The Publications group has continued with significant work to move the format of compilations of Commonwealth legislation into a standard style. The compilations team also continues to provide an important quality control function for Commonwealth legislation.

OPC has regular meetings of drafters, used to discuss drafting issues of general interest. The meetings have been very productive and have been the subject of positive feedback from drafters. OPC will continue to review the meetings to see how they can be improved.

Maintaining the statute book

OPC prepared amendments to correct a number of minor errors in Acts, most of which were identified by the Publications group in the course of preparing compilations of Acts.

OPC uses Statute Update Bills primarily to make technical corrections, update the statute book and repeal spent Acts. Due to the timing of the election, no Statute Update Bills for this purpose were dealt with in 2018-2019.

Editorial changes

Under Division 3 (Editorial changes and other changes) of Part 2 of Chapter 2 of the Legislation Act, FPC may make minor editorial changes to an Act or instrument to correct an error, give effect to a misdescribed amendment, or bring the Act or instrument into line with legislative drafting practice. These changes must not alter the effect of the legislation.

These changes are intended to reduce the time needed for parliamentary consideration of these matters and ensure that readers of legislation can better access the law as in effect.

During 2018-2019, FPC exercised this power in 130 compilations. In some compilations more than one editorial change was made. A summary of the kinds of editorial changes made is as follows:

A report with details of all editorial changes made in 2018-2019 can be found on the Legislation Register at www.legislation.gov.au/Content/EditorialChanges.

Instruments given unique names

Section 10 of the Legislation Rule 2016 permits FPC to add a name to an unnamed instrument or document or amend the name of an instrument or document that is not unique when it is lodged for registration.

This ensures that all registered instruments and documents on the Legislation Register are uniquely named and therefore easier to identify and find.

During 2018-2019, FPC exercised this power for 20 instruments.

A report with details of all instruments given a unique name can be found on the Legislation Register at https://www.legislation.gov.au/Content/UniqueNames.

Sunsetting and review of legislative instruments

The Legislation Amendment (Sunsetting Review and Other Measures) Act 2018 was assented to on 24 August 2018 and addressed a number of recommendations made by the Report on the Operation of the Sunsetting Provisions in the Legislation Act 2003, published in September 2017.

Some of the changes made include that:

• the Attorney-General be allowed to grant deferrals of sunsetting for up to 24 months;
• Parliament be allowed to pass a resolution to roll over a legislative instrument at any time after that instrument is mentioned in the sunsetting list or a certificate of deferral; and
• rules of court should be subject to the registration and publication requirements of the Legislation Act but not subject to sunsetting.

Under the Legislation Act, legislative instruments sunset automatically after 10 years unless action is taken to preserve them.

The purpose of sunsetting is to ensure that legislative instruments are kept up-to-date and only remain in force as long as they are required. Sunsetting is also an important mechanism to pursue clearer laws and reduce red tape.

OPC continued to work closely with agencies to manage the sunsetting of legislative instruments. This included working with sunsetting coordinators in all portfolios to encourage early action on sunsetting through the preparation of sunset lists for tabling in Parliament.

Lists of instruments due to sunset in 6 and 12 months were also provided to agencies to assist with the management of sunsetting instruments.

In 2018-2019, 2 lists of instruments due to sunset in 18 months were prepared for the Attorney-General to table in Parliament in accordance with the Legislation Act.

OPC also assisted in the management of the sunsetting of legislative instruments by drafting instruments for the Attorney-General under the Legislation Act to allow for the deferral of sunsetting and to align the sunsetting of instruments to facilitate the thematic review of instruments.

Numerous legislative instruments were reviewed by agencies and redrafted by OPC before the instruments were due to sunset.

The rewritten instruments greatly improved the quality and readability of these instruments and generally decreased the number of pages on the statute book.

OPC will continue to play an important role in updating and modernising legislative instruments due to sunset, repealing spent and redundant legislation and ensuring that the Commonwealth statute book is as coherent, readable and readily accessible as possible.

Encouraging high standards in the drafting of legislative and notifiable instruments

In addition to the above deliverables for the standardisation and quality control of legislation, OPC also undertakes a broad range of measures to encourage high standards in the drafting of Commonwealth legislative and notifiable instruments.

FPC causes these measures to be undertaken to fulfil FPC's obligation under section 16 of the Legislation Act to promote the legal effectiveness, clarity, and intelligibility to anticipated users of legislative and notifiable instruments.

Since this obligation was transferred from the Secretary of the Attorney-General’s Department to FPC in 2012, a number of measures have been taken to encourage high standards and enhance the quality of all legislative and notifiable instruments and the Commonwealth statute book generally. These measures include:

• harmonising drafting standards and the presentation of Commonwealth Bills and OPC drafted instruments to enable a more cohesive Commonwealth statute book and set a precedent for other drafters of untied legislative or notifiable instruments;
• developing a prioritisation system for ExCo legislative instruments to better manage the government’s program and enhance the quality of instruments;
• developing broader instrument drafting expertise within OPC to enable more highly experienced drafters to be available to assist with untied drafting work;
• actively engaging with agencies in relation to untied instruments through OPC Client Advisers from whom agencies can also obtain quick, informal advice about legislative or notifiable instrument drafting;
• providing further guidance to agencies in relation to managing and drafting legislative or notifiable instruments through drafting standards and the reissue of the Instruments Handbook;
• rationalising instrument-making powers to ensure instruments that have the most significant impacts on the community are professionally drafted by OPC;
• limiting the proliferation of the number and types of instruments in enabling legislation to achieve greater consistency in legislative and notifiable instruments;
• rationalising the number of legislative instruments that will need to be considered for sunsetting through automatic repeal and bulk repeal instruments and working with agencies to manage sunsetting; and
• developing and implementing further measures to efficiently manage the Commonwealth statute book through changes included in the Acts and Instruments (Framework Reform) Act 2015 and the Legislation Amendment (Sunsetting Review and Other Measures) Act 2018.

In addition to continued work on the above measures, in 2018-2019, FPC fulfilled FPC's obligation under section 16 of the Legislation Act by causing steps to be taken for OPC to undertake and supervise the drafting of legislative and notifiable instruments, providing advice and training in drafting and related matters to agencies, and providing drafting precedents to guide agencies in drafting instruments in the future.

OPC will seek to continue to build capacity to further assist agencies to draft their untied legislative instruments and take further steps to encourage high standards in the drafting of legislative and notifiable instruments.

In 2018-2019, OPC provided drafting services to settle or check legislative instruments drafted by a number of agencies, including:

• the Department of Finance;
• the Department of Jobs and Small Business;
• the Department of Agriculture; and
• the Department of Home Affairs.

OPC also sought to increase our services to agencies in the drafting of precedents to guide agencies in preparing instruments. This included making templates for legislative instruments available on the OPC website.

OPC has also continued to provide advice concerning the drafting of legislative instruments through making OPC Client Advisers available to a number of agencies.

OPC continued to present Drafting Simple Instruments Courses. The course covers the essential requirements for drafting simple instruments and is available to all Commonwealth agency staff who have previously attended a Legislation Process Course. It is envisaged that this training will have a significant impact in encouraging high standards in the drafting of legislative and notifiable instruments across the Commonwealth.

OPC also conducted some roundtable sessions for APS employees who draft legislative instruments in other agencies. These proved to be very popular and will be continued.

Finally, FPC also continued to assist in preventing the inappropriate use of gender-specific language in legislative instruments through guidance provided to agencies in the Instruments Handbook and monitoring of the use of gender-specific language through reporting by agencies at the time of registration.

No inappropriate use of gender-specific language was identified in instruments that had already been made and therefore no notification was required under subsection 16(3) of the Legislation Act.