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Analysis of performance against Purpose 1: Legislative Drafting

Overview

OPC’s outcome for 2019-2020 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 2019-2020.

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

Client feedback surveys during 2019-2020 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 4.9 and the average response for instruments was 4.9. 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 2019-2020 indicated that all Bills and instruments were easy to understand, having regard to the inherent complexity of the subject matter.

Bills

Before each Parliamentary sitting period, the Government formulates the program of Bills that it requires to be drafted for that sitting. 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 sitting 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 and then the COVID-19 crisis had a substantial impact on the number of Bills introduced as the Parliamentary sitting pattern was quite different to the normal pattern.

Over the year, 216 Bills drafted by OPC, totalling 7,931 pages, were introduced into the Parliament.

The Bill statistics table below gives more detailed figures for those Bills, broken down by Parliamentary sitting periods.

The figures in the table also indicate the total number of Bills on the original program for each sitting period that is set by the Parliamentary Business Committee of the Cabinet (PBC) at the end of the preceding sitting. As the original program is subject to variations during the sitting 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 sitting into four categories:

  • Category T (“time critical”): These Bills are intended to be introduced and passed in a single sitting period.
  • Category A: Most important after category T. Generally intended for introduction, but not passage, during the sitting.
  • Category B: Next most important. Generally intended for introduction, but not passage, during the sitting.
  • 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 sitting).

Some Bills in categories A, B and C may not be intended for introduction in the sitting period 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 sitting proposed for their introduction.

The large number of Bills introduced in the first sitting after the election will, in part, be due to the reintroduction of Bills that lapsed when Parliament was prorogued.

Bill statistics

Category

Bills on original PBC program

Bills introduced

Winter/Spring 2019 (July—December 2019)

T

87

101

A

82

40

B

41

4

C

1

0

Total

211

145

Autumn 2020 (February—March 2020)

T

30

29

A

72

4

B

38

0

C

5

1

Total

145

34

Winter 2020 (May—June 2020)

T

41

29

A

74

6

B

39

2

C

6

0

Total

160

37

Client feedback

OPC surveys its 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 2019-2020 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” is

4.0 out of 5 (where 5 is the highest rating). The result for 2018-2019 was 4.9 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 discussion of drafting approaches was excellent. [The drafter] took the time to explain to us the limitations and advantages of each approach, and gave us appropriate information to make an informed choice on how to resolve the policy within legislation.
  • In my view, the work we did with the drafting team was very positive and collaborative, and ultimately resulted in a broader improvement to the laws that was outside of the scope (but intrinsically related to) the original measure.
  • [The drafters] managed the drafting process with clear, timely communication and flexibility. [The drafters] were great to work with, responsive, good humoured, and provided excellent written and oral responses to questions and suggestions. The team really appreciated their approach, and the quality of the working relationship meant that a highly stressful, complex process was made much less stressful than it would otherwise have been.
  • The project could not have been completed without the responsive, adaptive, flexible, and expert input of the drafters.
  • Working with [the drafter] was an absolute pleasure. He was responsive, thorough, communicative and turned things around in a really timely way given the sometimes extremely tight timeframes. He was also very polite and professional given the situation was often challenging.
  • It was a privilege to have been able to work with [the drafters] who were both professional at all time. They were very responsive and delivered very speedily in an incredibly short timeframe. They were very patient with us and generous with their time.
  • Our drafter was fantastic. He was highly responsive, thoroughly considered the issues and raised concerns in a constructive way, which improved the overall quality of the legislation. He also went above and beyond to resolve some set-backs we faced, for instance with regard to settling the scope of our policy authority.
  • This Bill was turned around in an extremely short timeframe and we are grateful for the efforts of both drafters to achieve this. Both drafters communicated regularly with myself and other instructing colleagues and went out of their way to ensure we were provided with accurate information, especially during the process to finalise and lodge the Bill.
  • I make special mention of [the drafter] who continued to consider new ways to resolve issues and had the creative thinking to approach the task from a whole new, and elegant way. 10 out of 10.

Parliamentary amendments

The number of parliamentary amendments drafted by OPC in 2019-2020 was 379. This is substantially less than for recent years. One reason for this was the unusual sitting pattern.

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 2012-2013, 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.

Parliamentary amendments statistics

Number of amendments drafted (% of total)

Year

Government policy change

Government new policy

Government correction of drafting errors

Non-government amendments

Total

2019-2020

282 (74.4)

19 (5.0)

2 (0.5)

76 (20.1)

379

2018-2019

1,147 (92.0)

83 (6.7)

12 (1.0)

4 (0.3)

1,246

2017-2018

1,457 (93.9)

17 (1.1)

27 (1.7)

51 (3.3)

1,552

2016-2017

480 (89.7)

8 (1.5)

18 (3.4)

29 (5.4)

535

2015-2016

281 (74.7)

37 (9.8)

1 (0.3)

57 (15.2)

376

2014-2015

783 (88.0)

14 (1.6)

19 (2.1)

74 (8.3)

890

2013-2014

191 (81.6)

19 (8.1)

1 (0.4)

23 (9.9)

234

2012-2013

786 (71.6)

254 (23.2)

14 (1.3)

43 (3.9)

1,097

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 2017 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 2017 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 2019-2020, 255 ExCo legislative and notifiable instruments drafted by OPC, totalling 3669 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 2019-2020, approximately 211 other legislative and notifiable instruments, totalling 2277 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 clients (agency instructors) about instruments drafted by OPC.

The target in the PBS for the average response to “overall satisfaction” is 4.0 out of 5 (where 5 is the highest rating). The result for 2018-2019 was 4.9 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:

  • Even though we aren't required to use OPC for these instruments I always tell people to do it - OPC understand government, understand priorities, and know how to work with APS. They get legislation and they are very good at it.
  • The OPC drafting team has provided above and beyond service, especially during the last few months where they have to draft many urgent items (and in very short amount of time) to support the Government response to the bushfires initiative.
  • The incredible diligence of the drafters and willingness to work through very complex problems. Also, their patience with uncertainties surrounding policy.
  • The legislation was extremely clear, which is particularly impressive given the complex subject matter.
  • I have worked with [the drafter] on this particular project for almost three years - and as hard as this project has been - [the drafter] has stood with me the whole time - I truly felt like we developed a real partnership together.
  • [The drafter] was outstanding, and produced a great product by our wholly unreasonable deadline. She has a big fan club at [the instructing agency].
  • Very easy to work with the drafters, personable, professional and responsive. Drafters assisted in simplifying relatively complex concepts and added a lot of value by thoroughly considering the policy/DI's and current legislative framework when developing drafts.
  • The drafters are excellent and added maximum value on this project. [The instructing agency] are extremely happy with all [of the] determinations, they are a significant improvement on previous determinations not drafted by OPC.
  • This instrument was drafted in a very short timeframe during pressing circumstances due to the COVID-19 pandemic. The process was exceptionally smooth given the environment everyone was operating in (including at a time when all persons involved were suddenly working from home under increased pressure).
  • A professional team with a can do attitude, who are always willing to offer and provide the best solution under any circumstances.
  • Our drafter was very helpful in clarifying what were very incomplete instructions. Her numerous questions were helpful in directing policy instructors to issues they needed to address. She was also very responsive and worked very quickly in the tight timeframe we had.
  • [The drafter], you are an absolute bloody legend. 10/10, five stars.

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 two new drafters during 2019-2020. Only one drafter left OPC.

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 two assistant drafters and one SES drafter. On any particular instrument, there will generally be two 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 instructors' capability to enable efficient use of drafting resources and quality legislation

OPC was not able to run Legislation Process Courses during 2020 due to COVID-19. This has substantially reduced the number of courses OPC offered this year. Work has be done on redeveloping the Legislation Process Course; and other courses so that they can be delivered remotely.

During the year, five Legislation Process Courses were run with a total of 132 participants.

A total of 273 Legislation Process Courses have been run since they began in 1994.

This year, there were two Legislation Design Courses and two Simple Instruments training courses run with a total of 84 participants.

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

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 and grammatical errors;
  • grammatical errors (e.g. inconsistencies of tense or lack of agreement between subject and verb);
  • incorrect citations and cross-references;
  • departures from the Amending Forms Manual and Drafting Directions; and
  • misdescribed or 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 on the "Drafting resources" menu on OPC’s website at www.opc.gov.au.

OPC drafters continue to work on achieving even greater consistency in the drafting of provisions and considering 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 standardise the style and format of compilations of Commonwealth legislation. The Compilations Team also continues to provide an important quality control function for Commonwealth legislation, including by ensuring it complies with website accessibility requirements.

OPC has regular meetings of drafters, which are 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. One Statute Update Bill for this purpose was dealt with in 2019-2020. The Statute Update (Regulations References) Act 2020 was introduced in the Autumn 2020 sitting and assented to on 6 March 2020. That Bill included amendments to:

  • update specific references to short titles of regulations that have become, or may become, out of date by no longer referring to regulations by their specific names and instead referring to regulations using more general phrases (such as “prescribed regulations made under the Family Law Act 1975”); and
  • replace references to specific provisions of regulations with more general means of identifying the provisions; and
  • make associated minor consequential amendments to support the operation of the amended provisions and repeal redundant provisions.

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 2019-2020, FPC exercised this power in 226 compilations. In some compilations more than one editorial change was made. A summary of the kinds of editorial changes made is as follows:

Item

Kind of editorial change

Number

1

Changes to capitalisation

2

2

Changes to grammar, syntax or the use of conjunctives or disjunctives

10

3

Changes to punctuation

25

4

Changes to spelling

3

5

Changes to typeface

12

6

Correct a drafting error

2

7

Changes to the way of referring to or expressing a date

1

8

Changes to the way of referring to or expressing a measurement

2

9

Correct a typographical error

14

10

Give effect to the misdescribed amendments as intended

84

11

Removal of redundant text

14

12

Renumbering of provisions

10

13

Reordering of definitions

28

14

Show the effect of an amendment of the instrument

9

15

Updates to cross‑references

4

16

Updates to references of a law or a provision

6

A report with details of all editorial changes made in 2019-2020 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 2019-2020, FPC exercised this power for nine 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

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 remain in force only 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 the subsequent 6 and 12 months were also provided to agencies to assist with the management of sunsetting instruments.

In 2019-2020, two lists of instruments due to sunset in 18 months' time 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 they were due to sunset.

Redrafting the instruments greatly improved their quality and readability 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

OPC 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 2019-2020, 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, provide advice and training in drafting and related matters to agencies, and provide 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 2019-2020, OPC provided drafting services to settle or check legislative instruments drafted by a number of agencies, including:

  • the Department of Finance;
  • the Department of Agriculture, Water and the Environment; 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 paragraph 16(3)(c) of the Legislation Act.