Bills—Relationship between performance measures and Purpose 1
The first purpose that OPC’s outcome gives rise to is to “enable the Government to carry out its legislative program by drafting Bills, ExCo instruments and a range of other instruments”.
The following background provides information in order to better understand how the performance measures for performance criteria 1.1, 1.2 and 1.3 directly relate to this purpose.
How OPC achieves its first purpose for Bills
Performance criteria 1.1, 1.2 and 1.3 all relate to Bills and ExCo instruments. It is important to understand how OPC works with agencies in relation to Bills and ExCo instruments to understand the performance criteria.
OPC achieves the first purpose for Bills 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. The legislation is drafted in accordance with Government priorities and in a form suitable for consideration and enactment.
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. This involves dividing the legislation planned for a parliamentary sittings into 4 main 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).
New categories (for example, Category A-drafting only) have more recently been developed which provide for categories of Bills that are not intended to be introduced in a sittings. Statistics on these categories are not provided in relation to the 2020-21 financial year due to their recent introduction.
On the basis of the legislation 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.
How OPC achieves its first purpose for ExCo instruments
The situation in relation to ExCo instruments is relatively similar.
OPC provides Government agencies with drafting services for instruments that are tied to OPC under the Legal Services Directions 2017 on a budget-funded basis. OPC also provides instrument drafting services to Government agencies on a contestable, user-pays basis for legislation that is not tied to OPC.
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 areas.
Drafting standards and quality assurance
At the heart of all three performance criteria for Bills and ExCo instruments is a focus on quality. Some of this quality relies on internal checking by drafters and editors.
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 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 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.
There are other ways in which OPC contributes to the quality of the statute book and the Bills and instruments on the Legislation Register.
Maintaining the statute book
OPC prepares 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. However, no Statute Update Bills were introduced in 2020-2021.
Under Division 3 (Editorial changes and other changes) of Part 2 of Chapter 2 of the Legislation Act 2003 (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 2020-2021, 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.
Kind of editorial change
Changes to capitalisation
Changes to grammar, syntax or the use of conjunctives or disjunctives
Changes to punctuation
Changes to spelling
Changes to typeface
Correct typographical errors
Give effect to the misdescribed amendments as intended
Removal of redundant text
Renumbering of provisions
Reordering of definitions
Reordering of provisions
Show the effect of an amendment of the instrument
Updates to cross‑references
Updates to references of a law or a provision
A report with details of all editorial changes made in 2020-2021 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 2020-2021, FPC exercised this power for 13 instruments.
A report with details of all instruments given a unique name can be found on the Legislation Register at 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 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 continues 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 2020-2021, 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.
Encouraging high standards in the drafting of legislative and notifiable instruments
In addition to 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 2020-2021, 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 2020-2021, OPC provided drafting services to settle or check legislative instruments drafted by a number of agencies, including:
- the Department of Health and Ageing; and
- the Department of Foreign 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.
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.
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 low. This very low turnover (about 3% per annum for a number of years) has enabled OPC to build up a strong group of experienced drafters.
OPC recruited 5 new drafters during 2020-2021, and 4 drafters left OPC. OPC was also lucky enough to secure the services of Mr Tom Reid, a former Second Parliamentary Counsel of 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.
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
Finally, in order to achieve its first purpose, it is important for OPC’s instructors to have the capability to instruct on legislation. OPC plays a role in supporting agencies in the instructing function by providing drafting courses to new instructors.
During the year, eleven Legislation Process Courses were run with a total of 192 participants.
A total of 284 Legislation Process Courses have been run, since they began in 1994.
This year, there were five Legislation Design Courses and four Simple Instruments training courses run, with a total of 93 participants.
OPC considers that running these courses is an important way for OPC to contribute to the improvement of instructing and instrument drafting standards.
Bills—Performance criteria 1.1 and 1.2
OPC has met the targets for the performance criteria for the first purpose in 2020-2021.
Bills—Methodology for performance criteria 1.1 and 1.2
For performance criteria 1.1 and 1.2 for Bills, instructing agencies are surveyed after Bills have been introduced into the Parliament. Surveys are sent in relation to each Bill package instead of each Bill. This is because where a Bill package includes more than one Bill, the instructors and the feedback on the Bills will be the same.
Bills—Results for performance criteria 1.1 and 1.2
In 2020-21, 154 surveys on Bills were sent and 46 responses were received (29.87%).
For performance criterion 1.1, clients are asked whether the Bills as introduced reflect their policy intentions. Survey responses for 2020-2021 indicated that 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.
For performance criterion 1.2, the target in the Corporate Plan and PBS for the average response to “overall satisfaction” was 4.0 out of 5 (where 5 is the highest rating). The result for 2020-2021 was 4.8 out of 5 (a slight decrease from the previous year’s rating of 4.9).
Seventy-two people responded in the client survey to the question “What did you like most about this experience with the Office?”. Comments reinforced the very high degree of satisfaction mentioned above with OPC’s services, with 68 of 72 comments being overwhelmingly positive. Comments included:
- It was a very urgent legislative project and our working relationship with OPC drafters was excellent. They responded promptly every time we sent back instructions/comments on the Bills.
OPC were always responsive in every stage of the drafting process.
- [T]he drafting team were always timely and willing to discuss drafting approaches on some of the difficult policy matters dealt with in the Bills.
- The legislation updates an Act from the 1990s, and the amendments will go a long way to making it much easier to understand the Act as a whole.
- We greatly appreciate the professionalism, care and attention shown by your office during this project. [The drafters] produced and settled complex Bills in a short space of time and provided helpful and probing questions to improve the final product. We enjoyed working with your office and look forward to working with you again.
- The drafters provided exemplary assistance in addressing a range of complex matters during the course of the Bill’s development.
- The team at OPC had to put up with a lot from us, at a very busy time. We are very appreciative of their resilience, professionalism, determination and understanding.
- I know I speak for the whole of [the Agency] when I say that each and every OPC drafting team demonstrated a deep understanding of the legal and policy issues involved.
- I truly believe that [the Agency] would not have been able to deliver the high quality product that we did without the strength of the relationships we formed with our drafters.
- We greatly appreciated the spirit of collaboration in which our drafting team engaged with us on the many obstacles that arose.
Four of 72 comments in answer to this question contained constructive feedback that will be taken into account in improving the quality of the drafting services OPC provides.
In response to a question about whether there is anything that the Office should do differently in dealing with drafting projects, 20 responses were received. While the vast majority of these were positive, a small number again provided useful information for OPC to consider in improving our performance.
Instruments—performance criteria 1.1 and 1.2
Methodology for performance criteria 1.1 and 1.2
For performance criteria 1.1 and 1.2 for ExCo instruments, instructing agencies are similarly surveyed after instruments drafted by OPC have been made. Surveys were sent to 318 agencies in relation to instruments, and 97 responses were received (30.50%).
Results for performance criteria 1.1 and 1.2
For performance criterion 1.1, survey results for 2020-2021 indicated that instruments reflected their instructors’ policy intentions.
For performance criterion 1.2, the target in the Corporate Plan and PBS for the average response to “overall satisfaction” was 4.0 out of 5 (where 5 is the highest rating). The result for 2020-2021 was 4.9 out of 5. This was the same result as the previous year.
Ninety-two people responded to the question “What did you like most about this experience with the Office?”. Comments reinforced this very high degree of satisfaction with services provided by OPC, with all 92 comments being positive. Responses to the question included:
- The assistance provided with this time critical amendment was excellent!
- OPC assisted with finding understandable and effective solutions to drafting issues.
- I think we made the work quite difficult for the drafter through not providing clear instructions and making changes to the regulations once they had been finalised - twice. Which I regret. But the drafter was fantastic throughout.
- This is a complex area and the drafter did a great job in improving the readability of the provisions.
- [The drafter] had analysed the issues very quickly (without any formal DIs) and came up with a drafting solution that we had not thought about but which met the Department’s needs completely.
- [The drafter] was fantastic to deal with and was very professional and approachable. She was able to assist with our requirements and was able to produce the work within a very tight timeframe.
- [The drafters] were a pleasure to work with. Their professionalism was fantastic, and although we had moving goalposts, they managed changes with grace and patience, and we were beyond grateful for their expertise.
- The team contributed to in-depth discussions about complex issues in a fast-moving environment, identified and proposed solutions to solve policy problems.
In response to a question about whether there is anything that the Office should do differently in dealing with drafting projects, 42 responses were received. As was the case with Bills, a significant majority suggested that there was nothing that should be changed. However, a small number did provide valuable feedback that will be considered more broadly to improve OPC’s drafting services.
Bills and instruments—Performance criterion 1.3
Methodology for performance criterion 1.3
For performance criterion 1.3, Drafting Directions made by First Parliamentary Counsel require drafting standards and conventions to be applied consistently unless FPC approval is obtained. Editors assess compliance with Drafting Directions for all Bills and legislative instruments drafted by OPC.
Results for performance criterion 1.3
The drafting standards and formatting conventions were applied consistently to Bills and ExCo instruments.
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. No FPC approval was given in relation to not following drafting standards and conventions.
Factors influencing performance in relation to performance criteria 1.1, 1.2 and 1.3
The following discussion sets out the factors that contributed to OPC’s performance in relation to performance criteria 1.1, 1.2 and 1.3.
Statistics for Bills introduced
The COVID-19 pandemic had a substantial impact on the number of Bills introduced and instruments made.
Over the year, 160 Bills drafted in OPC, totalling 6,345 pages, were introduced into the Parliament. This was significantly lower than the previous financial year (216 Bills totalling 7,931 pages). However, the decrease in page numbers was more than offset by a corresponding increase in the number of instruments made and registered.
The Bill statistics 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.
Bills on original PBC program
A further impact on OPC’s performance in relation to performance criteria 1.1 to 1.3 is the impact of parliamentary amendments. Responses to client surveys for the performance measures in relation to Bills that were amended in Parliament include feedback on these parliamentary amendments as the amendments form part of the Bill drafting process.
For this reason, statistics are collected in relation to parliamentary amendments drafted during the financial year. 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.
The figures on parliamentary amendments are set out in the table below. The table also shows figures for reporting years since 2013-2014, 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.
Parliamentary amendments statistics
Number of amendments drafted (% of total)
Government policy change
Government new policy
Government correction of drafting errors
The number of parliamentary amendments drafted by OPC in 2020-2021 was 1,228.
This is much higher than for the previous year (which was only 379). Significantly, the number of non-government amendments (that is, amendments drafted by OPC for parliamentarians who are not part of the Government) increased substantially in 2020-2021 to 336, up from 76.
OPC’s performance measures in relation to Bills are also affected by an increasing its Government preference, and preference among many of our clients, for exposing draft legislation for public comment before its introduction into Parliament. This influences performance because the timeframes to provide resources are tighter for these Bills, and further work is often required after consultation.
Since the adoption in 2002 of the Board of Taxation’s recommendations on consultation in the tax area, much of the tax legislation drafted by OPC is exposed for comment, either widely or in targeted consultations, before being finalised for introduction.
There is also a continuing trend towards the release of exposure drafts in other areas.
Sometimes, these exposure drafts are public exposure drafts. At other times, there are exposure drafts that are shown to a limited group with a particular interest in the area covered by the Bill.
Usually, exposure of a draft Bill generates proposals for change, and OPC receives drafting instructions to revise the Bill before introduction.
Sometimes, exposure reveals flaws in the draft Bill. Exposing a Bill for comment also provides an opportunity to improve the drafting of the Bill before introduction. However, the exposure process does absorb extra drafting resources and extends the time taken for the drafting project. This means that, increasingly, the Bills introduced in a particular year may reflect substantial work actually done by OPC in previous years, while work done during the reporting year is less visible.
For instruments, the time required for consultation processes is generally built into the timeframes for development and making. The development period for projects also does not generally extend beyond the financial year.
There has continued to be more demand for instruments to be drafted and available alongside their enabling Bill. This assists Parliament to consider the package of changes as a whole. Instrument drafters work closely with Bill drafters, which can provide significant efficiencies for the broader project. In appropriate cases, the same drafting team will draft the Bill and the associated instruments.
Budget-funded instrument drafting services
During 2020-2021, 280 ExCo legislative and notifiable instruments drafted by OPC, totalling 3,492 pages, were made and registered on the Legislation Register. While the number of instruments made has increased (from 255 in 2019-20), the page numbers decreased (from 3,669 in 2019-20).
User-pays drafting services
During 2020-2021, approximately 203 other legislative and notifiable instruments, totalling 3,894 pages, were drafted by OPC on a user-pays basis for Government agency clients and registered on the Legislation Register. This was a drop in instrument numbers (down from 211 in 2019-20) but a significant increase in page numbers (up from 2,277 in 2019-20), likely reflecting the impact of the COVID-19 pandemic and the significant number of instruments required to respond to the pandemic.