OFFICE OF PARLIAMENTARY COUNSEL MANUAL FOR THE …...Office of Parliamentary Counsel Department of...

Office of Parliamentary Counsel

Department of Premier and Cabinet

OFFICE OF PARLIAMENTARY COUNSEL

MANUAL FOR THE PREPARATION OF BILLS

First Edition March 2010

Published by the Office of Parliamentary Counsel, Hobart

© Tasmanian Government

Office of Parliamentary Counsel – March 2010 Page 2

Contents 1 Introduction ....................................................................................................................................................................... 4

1.1 Aim of manual ......................................................................................................................................................... 4

1.2 Interpretation of manual .................................................................................................................................... 4

1.3 Scope of manual .................................................................................................................................................... 5

2 Legislative proposals ...................................................................................................................................................... 5

2.1 Preliminary ................................................................................................................................................................. 5

2.2 Legislative proposals to be in form of Cabinet Minute ..................................................................... 5

2.3 Legislative proposals to be in general terms ........................................................................................... 6

2.4 Priority and timing of legislative proposals ............................................................................................... 6

2.4.1 Preliminary ....................................................................................................................................................... 6

2.4.2 Priority ............................................................................................................................................................... 6

2.4.3 Timing ................................................................................................................................................................ 7

2.5 Preliminary discussions with OPC ................................................................................................................ 7

2.6 Processing of Cabinet Minutes ....................................................................................................................... 7

2.7 Cabinet Decisions ................................................................................................................................................. 8

3 Instructions ......................................................................................................................................................................... 8

3.1 Who may give instructions? ............................................................................................................................. 8

3.2 What form should instructions take? .......................................................................................................... 8

3.3 How to prepare effective instructions ....................................................................................................... 9

3.4 Who should instructions be given to? ........................................................................................................ 9

3.5 How should instructions be delivered? ................................................................................................... 10

3.6 Allowing adequate drafting time ................................................................................................................ 10

3.7 Consequences of not allowing adequate drafting time ................................................................. 11

3.8 Managing the drafting program ................................................................................................................... 11

3.9 Appointment of instructing officer ............................................................................................................ 12

3.10 What does OPC do on receiving instructions?.................................................................................. 13

4 Drafting .............................................................................................................................................................................. 13

4.1 Drafting: Preparing and settling drafts...................................................................................................... 13

4.1.1 Preliminary .................................................................................................................................................... 13

4.1.2 What does drafting involve? ............................................................................................................... 14

4.1.3 The mechanics of drafting ................................................................................................................... 15

4.1.4 Formatting options for drafts ............................................................................................................. 16

4.1.5 Quality of working drafts ...................................................................................................................... 17


4.1.6 How can instructing Agency facilitate drafting process? ...................................................... 17

4.1.7 Duration of drafting process (Overview) .................................................................................... 17

4.2 Drafting: Some drafting and legal considerations .............................................................................. 18

4.2.1 Structure of Bills, &c. ............................................................................................................................... 18

4.2.2 Short title ...................................................................................................................................................... 19

4.2.3 Long title ....................................................................................................................................................... 20

4.2.4 Enacting formula........................................................................................................................................ 21

4.2.5 Preambles ..................................................................................................................................................... 21

4.2.6 Commencement ....................................................................................................................................... 21

4.2.7 Interpretation provisions ...................................................................................................................... 21

4.2.8 Constitution Act 1934 .............................................................................................................................. 22

4.2.9 Offences and penalties .......................................................................................................................... 22

4.2.10 Automatic repeal of amendments .................................................................................................. 23

4.2.11 Administration provisions .................................................................................................................... 23

4.2.12 Public and private Acts .......................................................................................................................... 23

4.3 Drafting: Some procedural considerations ........................................................................................... 23

4.3.1 Agency to deal only with assigned drafter .................................................................................. 23

4.3.2 Communicating with assigned drafter, &c. .................................................................................. 24

4.3.3 Formatting restriction for emailed drafts ..................................................................................... 24

4.3.4 Variation from Cabinet Decision ..................................................................................................... 24

4.3.5 Confidentiality ............................................................................................................................................ 25

4.3.6 Costing ........................................................................................................................................................... 26

4.3.7 Role of Solicitor-General ...................................................................................................................... 26

4.3.8 Complaints ................................................................................................................................................... 27

4.4 Drafting: Agency approval ............................................................................................................................. 28

5 Final Preparation ........................................................................................................................................................... 28

5.1 Quality assurance checking ........................................................................................................................... 28

5.2 What happens after quality assurance checking?............................................................................... 29

5.3 Final copies (Approval, endorsement and printing) ......................................................................... 29

6 The Parliamentary process ..................................................................................................................................... 30

6.1 Preliminary .............................................................................................................................................................. 30

6.2 First reading ........................................................................................................................................................... 30

6.3 Second reading .................................................................................................................................................... 30

6.4 Committee stage ................................................................................................................................................ 30


6.5 Drawing of amendments ................................................................................................................................ 31

6.6 Third reading ......................................................................................................................................................... 32

6.7 Agreement of both Houses .......................................................................................................................... 32

7 Final processing, &c. .................................................................................................................................................... 32

7.1 Proof of vellum .................................................................................................................................................... 32

7.2 Final print, Royal Assent, &c. ......................................................................................................................... 33

7.3 Legislative database (Authorised versions) ........................................................................................... 33

7.4 Reprints .................................................................................................................................................................... 34

7.5 Annual volume ..................................................................................................................................................... 34

8 Miscellaneous ................................................................................................................................................................. 34

8.1 The Legislation Review Program ................................................................................................................ 34

8.2 Annual index ......................................................................................................................................................... 34

8.3 What to do if Bill not proceeding ............................................................................................................. 35

8.4 Further information ........................................................................................................................................... 35

9 Schedules.......................................................................................................................................................................... 35

9.1 Schedule 1 - Dictionary ................................................................................................................................... 35

9.2 Schedule 2 – Providing Effective Instructions ...................................................................................... 36

9.3 Schedule 3 – Facilitating the Drafting Process .................................................................................... 37

1 INTRODUCTION

1.1 Aim of manual

The aim of this manual is to help government agencies with the legislative process by –

• explaining what they need to do to have a Bill drafted

• giving them an understanding of what the drafting of a Bill involves and some practical pointers on how to facilitate that task

• giving them some useful information about Bills and their enactment

• explaining the role of the Office of Parliamentary Counsel.

1.2 Interpretation of manual

The manual has 8 chapters and 3 schedules.

A reference in the manual to a chapter or schedule by number is a reference to the chapter or schedule with that number.

In Schedule 1 there is a dictionary that defines some of the main terms used in the manual.


For convenience, the manual uses abbreviations and labels for some terms. When one of these terms first appears in the following text the abbreviation or label appears immediately afterwards between square brackets.

All legislative references in the manual are to Tasmanian statutes.

1.3 Scope of manual

The manual looks at the Bill-making process mainly from a drafting perspective and focuses on the role of the Office of Parliamentary Counsel [OPC]. Other parts of the process are dealt with only briefly or indirectly.

Note that the manual only deals with routine government Bills. It does not deal with –

• Money Bills to meet the cost of the ordinary annual services of government (for which there is a special procedure that concerns only OPC and the Department of Treasury and Finance)

• Bills prepared for individual members of Parliament (for which there is a special procedure that concerns only OPC, Parliamentarians and Parliamentary officers).

Except in so far as they are relevant to OPC, the manual does not deal with the internal procedures that Agencies follow in relation to the preparation of Bills. Most Agencies have some kind of handbook for that.

As this is a Bill-making manual it does not deal in much detail with what happens to a Bill after it passes into law, or with its commencement.

2 LEGISLATIVE PROPOSALS

2.1 Preliminary

OPC cannot draft a Bill on any matter unless the government of the day, by means of a Cabinet decision, has authorised it to do so.

The requirement can only be waived if the Premier, in writing, directs the Chief Parliamentary Counsel [CPC] to draft the Bill in advance of the Cabinet decision.

Such directions are rarely issued, being reserved for Bills of the very highest political sensitivity and urgency. It is an abuse of governmental process to seek the Premier's personal drafting authority in an attempt to circumvent Cabinet protocols or claim, for a routine Bill, a false drafting priority.

It is also an abuse of governmental process for an Agency to seek the Premier's personal drafting authority if it is not in a position to instruct OPC immediately.

2.2 Legislative proposals to be in form of Cabinet Minute

Cabinet will only approve a legislative proposal on the basis of information put to it by way of a Ministerial submission in the form of a Cabinet Minute.

The Cabinet Minute process is governed by a protocol that OPC has no direct involvement with. Agencies should consult the Cabinet Office on the protocol.


However, from a drafting perspective the legislative proposals contained in a Cabinet Minute should be –

• general rather than prescriptive

• realistic and reasonable as regards priority and timing.

2.3 Legislative proposals to be in general terms

To facilitate the drafting process, legislative proposals should be put in general terms and not seek to lock in specific drafting approaches or, worse, specific wording or formatting.

It is OPC's responsibility to determine the best way of drafting Bills and in so doing it must have regard not only to legal considerations but also to such things as drafting conventions, constitutional requirements, Parliamentary Standing Orders and the technicalities of OPC's drafting software. This calls for considerable judgment, and sometimes the best approach may not become clear until the drafting process is underway.

However, the terms of a Cabinet decision are prima facie binding so it is problematic for all concerned if, pursuant to a miscast minute, Cabinet endorses a particular drafting approach that cannot, in the event, be implemented or is less than ideal.

Cabinet itself, by Decision 747 of 15 May 2000, endorsed the policy that legislative proposals contained in Cabinet Minutes are to be couched in terms of general principles rather than specifics.

For the reasons indicated, OPC rarely gives anything other than the most general kind of preliminary advice on legislative proposals.

2.4 Priority and timing of legislative proposals

2.4.1 Preliminary

A Cabinet Minute must –

• indicate the priority and timing of the legislative proposal

• specify a recommendation as to the date before which the final draft Bill will be referred to Cabinet or a date by which it will receive a report on the Bill's progress.

The priority and timing indicated should be genuine, realistic and reasonable.

2.4.2 Priority

Ministers and Agencies are understandably keen to advance their legislative agendas and so routinely claim priority for most legislative proposals.

However, the State's drafting resources are limited, so not every legislative proposal can, in practice, be accorded priority.

Some legislative proposals are genuinely time-critical, as where the government has given a public undertaking to introduce a new law, or Tasmania is committed to introduce uniform legislation according to a nationally agreed timetable, or legislation is needed in support of a State commercial agreement. In such cases it is quite legitimate to claim priority.


However, if priority is routinely claimed for legislative proposals heedless of need or circumstance then, in practice, OPC has little alternative but to sort out the competing claims on the basis of its own perceptions of government priorities, the available resources, the nature of the work on hand and the Parliamentary timetable.

2.4.3 Timing

In working out the timing of a legislative proposal, Agencies need to factor in –

• adequate time, by reference to the size and/or complexity of the task, for the drafting of the Bill

• adequate time, if relevant, for official and/or public consultation (and for making any consequential revisions to the draft)

• adequate time, by reference to the sitting schedules, for the Parliamentary process (remembering that Parliamentary sessions are quite short, that Parliamentary debating time is limited, that the Bill must pass both Houses and that any amendments in one House will need to be considered by the other House)

• adequate time, assuming the Bill is passed by Parliament, for the Bill to be printed as an Act and given Royal Assent (typically about a fortnight but frequently longer)

• adequate time, if relevant, for the drafting, execution and promulgation of any necessary supporting legislation such as regulations or commencement proclamations (remembering that the associated Executive Council and gazettal protocols are fairly rigid)

• adequate time for any necessary administrative or publicity measures required to implement the legislation.

2.5 Preliminary discussions with OPC

OPC is usually willing to give Agencies preliminary advice on legislative proposals, including estimates of drafting time.

However, such estimates cannot generally be regarded as binding because it is hard to say in advance precisely how long a drafting task will take and, moreover, government legislative priorities are constantly changing.

Equally, for the reasons mentioned in chapter 2.3, any preliminary advice that OPC may give an Agency on the form or content of a legislative proposal should generally be regarded as being merely indicative. Usually it is not possible, or prudent, to commit to a particular approach to a legislative proposal ahead of the actual drafting process.

It follows that Agencies should be careful, when seeking legal advice on legislative proposals from other sources such as the Office of the Solicitor-General, that the advisor is not asked to prescribe or endorse a precise form of legislative wording or formatting that might compromise proper drafting discretions.

2.6 Processing of Cabinet Minutes

Once a Cabinet Minute has been lodged, the Cabinet Office will –


• assign it a Minute number

• send a confidential copy of the Minute to the CPC together with advice on when the matter is scheduled for Cabinet consideration.

After perusing the Cabinet Minute, the CPC will enter the matter in OPC's records.

No drafting will be done at this stage unless it is one of those exceptional matters for which a Premier's personal drafting direction has been issued [see chapter 2.1].

2.7 Cabinet Decisions

If Cabinet decides to approve a legislative proposal (with or without variation) –

• the decision will be put in writing under the hand of the Secretary of the Department of Premier and Cabinet and assigned a number

• the decision will be sent to the relevant Minister

• a copy of the decision will be sent to the CPC who will open a file in the matter

• a copy of the decision will also be sent to the Head of the relevant Agency together with a request to arrange for instructions to be provided to the CPC so that drafting can proceed.

3 INSTRUCTIONS

3.1 Who may give instructions?

Instructions for a Bill can be given by –

• the Head of the Agency

• the head of one of its Divisions or other major work units

• an officer, such as a legislation manager or project manager, with relevant special authority.

OPC will ordinarily assume that –

• a person purporting to give it instructions on an Agency's behalf has authority to do so

• instructions signed for and on behalf of a senior officer have that senior officer's approval.

3.2 What form should instructions take?

The instructions for a Bill should be in writing. OPC will not act on oral instructions unless there are exceptional circumstances or the CPC has given approval.

The instructions should consist of –

• a covering memorandum

• any necessary supporting information.


The covering memorandum should –

• say, in detail, what needs to be done and why it needs to be done

• alert OPC to any critical factors such as deadlines or political undertakings

• give the instructing officer's name and contact details

• give the instructing Agency's file reference.

The supporting information, if any, might include –

• a Bill from another jurisdiction

• a legal opinion or policy document

• a code, guideline or standard

• a technical specification

• a plan or diagram.

3.3 How to prepare effective instructions

An Agency can facilitate the drafting of a Bill by giving OPC effective instructions. In Part 1 of Schedule 2 there is a list of some of the things that make for effective instructions.

By way of contrast, in Part 2 of Schedule 2 there is a list of some of the things that make for ineffective instructions. Needless to say, ineffective instructions will hinder the drafting of a Bill.

If there is one thing that instructions need to do above all else, it is to explain why the Bill is needed. For example –

• for a new Act – what policy outcome is contemplated?

• for a remedial amending Act – what problem needs fixing?

Another key thing is that the policy should drive the drafting, not the other way around. A legislative proposal should not be put to Cabinet if the underlying policy is, in its essentials, unclear.

A Bill should not be regarded as a de facto options paper that might help an Agency serendipitously capture a hazy policy. Whilst the drafting process will nearly always serve to refine a policy it is not a good means of cobbling one together or thrashing out its fundamentals.

3.4 Who should instructions be given to?

The instructions for a Bill should be addressed to the CPC.

But they may be marked for the attention of a particular drafter if –

• the instructing Agency has already discussed them with that drafter

• the instructing Agency has other reasonable grounds for supposing that that drafter is likely to be dealing with the matter.


Even so, an Agency should not presume that its instructions for a Bill will be assigned to a particular drafter. Responsibility for managing the State's drafting resources rests with the CPC.

3.5 How should instructions be delivered?

The instructions to OPC may be –

• Emailed to: [email protected]

• faxed to: (03) 6233 3335

• posted to: GPO Box 1409, Hobart, 7001

• sent through the internal (State Service Courier) mail service

• dropped off by hand at the 11th Floor, AMP Building, 86 Collins Street, Hobart.

Further correspondence to OPC in the same matter may be delivered the same way.

3.6 Allowing adequate drafting time

As mentioned in earlier chapters, Agencies need to allow adequate time for the drafting of Bills. What constitutes adequate drafting time will depend on the circumstances of each case.

As indicated, OPC is usually willing to give Agencies provisional estimates of the time that a particular drafting task is likely to take.

OPC does its best to meet the timelines set by Cabinet but the drafting process can be affected by many factors, some of which are quite volatile or beyond OPC's control. For instance –

• OPC may not be able to act on the instructions straight away because it has other work of equal or higher priority on hand

• the instructions may require clarification

• the drafting may turn out to be harder or more complex than expected

• the instructions may throw up difficult formatting challenges

• the drafting may force a shift in policy

• expert legal or technical advice may be needed

• the Minister may direct that special or further consultations take place

• key personnel may have to take unexpected leave of absence

• the drafting may have to be interrupted in favour of other pressing work.

Note that –

• the size or scope of a Bill is not a reliable indicator of drafting time; a small amendment Bill addressing a few complex legal issues might take just as long to draft as a medium-size new Bill where the policy is settled and straightforward


• Bills that amend several Acts (omnibus Bills) usually take much longer to draft than Bills that amend just one piece of legislation simply because of the EnAct formatting challenges. OPC does not favour such Bills

• Bills that amend already heavily amended pieces of legislation can be time-consuming to draft, process and check

• Bills for comprehensive new regulatory schemes may well take more than a year to draft

• Bills that have some national linkage – such as those for uniform schemes or referrals of power to the Commonwealth – may involve extensive liaison with other drafting offices or the Parliamentary Counsels Committee.

3.7 Consequences of not allowing adequate drafting time

Depending on the circumstances, not allowing adequate drafting time can cause –

• embarrassment for the government (if, for example, the publicly announced implementation date of a new scheme cannot be met)

• a legislative hiatus (if an activity that the Government means to regulate remains unregulated or is, for a time, inadequately regulated)

• revenue shortfalls (if, for example, taxation measures are held up)

• expense and inconvenience for the public, industry or government (in that a Bill prepared in haste may have flaws that cause uncertainty or lead to litigation or require remedial legislative actions)

• administrative disruption (if, for example, other Agencies are involved, the matter needs to be co-ordinated with other jurisdictions or the instructing Agency has to recalibrate implementation software)

• more administrative work and expense (if, for example, there is a need for a remedial Bill)

• extra work and pressure for other participants in the Bill-making process (like Ministerial officers, the Government Printer and even Members of Parliament)

• flaws in the statute book (in that a Bill prepared in haste and under unreasonable pressure is unlikely to be as sound as one prepared on adequate notice)

• inconvenience for other Agencies (if, for example, OPC is forced to suspend work on the drafting of other legislation)

• embarrassment for OPC (in that it may be unfairly blamed for delays or blamed for drafting errors that might have been avoided had it had more time).

3.8 Managing the drafting program

OPC does its best to draft Bills according to the timing and priority indicated in the relevant Cabinet Decision, but –

• it has limited resources and, invariably, a lot of work on hand


• it has to provide a legislative drafting service for the whole of government and other Agencies may be claiming equal or higher priority for other jobs

• its resources are stretched during peak workload periods such as during the lead-up to Parliamentary sessions, particularly the last such session of the year

• it does not always have room to manoeuvre because –

o the government may suddenly direct the CPC to give particular tasks priority

o critical Parliamentary sessional work, such as the preparation of amendments and the checking of vellums of Acts prior to Royal Assent, can never be put off

o sometimes individual drafters must drop everything to attend to tasks of overriding importance.

Accordingly, OPC has to reassess drafting priorities frequently, sometimes even on a daily or half-daily basis.

An Agency that has claimed and been given drafting priority has an obligation to honour that claim by ensuring that –

• its instructions are ready

• it gives OPC quick feedback on drafts

• key Agency personnel are made available.

If the drafting priority has been obtained directly from the Premier [see chapter 2.1] OPC regards this obligation as absolute.

3.9 Appointment of instructing officer

An Agency wanting to have a Bill drafted must appoint someone to instruct OPC.

This will usually be an officer of the Agency, but it might sometimes be an outside expert contracted for the purpose.

The instructing officer should be –

• a capable communicator

• conversant with the relevant policy

• conversant with all relevant legislation

• invested with enough authority to give OPC quick and reasonably definitive responses on policy and drafting issues

• on duty, and prepared and permitted to devote adequate time to the matter commensurate with its priority.

Desirably, the instructing officer will also have –

• some awareness of what legislative drafting involves

• previous experience in instructing OPC


• some familiarity with the administrative and parliamentary procedures that need to be followed to turn the Bill into law.

Ideally, there should be only one instructing officer but OPC recognises that on occasion it may need to be instructed by a team. Small teams of instructors can work well, but OPC has generally found that taking instructions from large teams – drafting by committee – is inefficient.

Similarly, instructions that require direct input from more than one Agency can sometimes be problematic. In such cases it is best if the Agency that prepared the Cabinet Minute takes charge of the matter and then consults and clears things with the other Agencies as required.

It is not part of OPC's role to act as an inter-Agency mediator or go-between.

3.10 What does OPC do on receiving instructions?

When OPC receives the instructions for a Bill –

• they will be entered in OPC's records

• the CPC, having regard to individual workloads, drafting priorities and other factors, will assign the relevant drafting file matter to a drafter if it is not already so assigned

• the CPC, if he or she has not already done so, will decide whether the file should be costed [see chapter 4.3.6].

4 DRAFTING

4.1 Drafting: Preparing and settling drafts

4.1.1 Preliminary

Once instructions have been provided, the assigned drafter's task is to draft the Bill in consultation with the instructing officer.

On receiving the file for a proposed Bill the assigned drafter will (usually within a day or so) –

• read the Cabinet Decision and the accompanying minute

• note any critical factors like deadlines or political undertakings

• note and confirm the file's costing status [see chapter 4.3.6].

There is no set protocol for drafting Bills because there is such great variation between them. Also, different drafters and instructing officers work in different ways. Accordingly, much will depend on what the particular file demands and how the persons responsible for it approach the task. Drafters are accorded a considerable degree of professional latitude in this respect.

Despite the lack of a set protocol, it is possible to make some general observations about the drafting process –


• if the instructions are adequate and the assigned drafter thinks it will be possible to work up a draft within a reasonable time, he or she may simply start working on the file and send the draft to the instructing officer for consideration; this will nearly always be under a covering memorandum that will alert the instructing officer to any regulatory review requirements and say whether the matter is being costed

• if the matter is not especially urgent and the assigned drafter is unable to start working on the file within a reasonable time, he or she should inform the instructing officer of that and indicate when work may be able to get under way

• if there is likely to be a long delay, the assigned drafter should inform the instructing officer of that as soon as practicable

• if the assigned drafter needs more information or clarification before drafting gets under way, he or she will contact the instructing officer for that purpose.

4.1.2 What does drafting involve?

Timing issues aside, the key feature of the drafting part of the process is that the assigned drafter will prepare a draft of the Bill and then revise it in consultation with the instructing officer until –

• they are both satisfied that they have a draft that will give legislative effect to the required policy

• the assigned drafter is satisfied that that draft is in accordance with the law and conforms to Tasmania's legislative drafting standards and style.

Both of those requirements must be met before the matter can advance.

Converting policy into law, which is essentially what legislative drafting involves, is a dynamic yet frequently painstaking and time-consuming process.

It is a common misunderstanding among inexperienced instructing officers that OPC is a mere cipher as regards proposed policy and that legislative drafting is mainly an editing and formatting exercise. That is not the case.

To discharge its duty properly, OPC must not only read and understand its instructions but also analyse them critically.

This in turn may mean that OPC has to question a policy or make policy recommendations, especially if it suspects that the legislative approach suggested by the instructing Agency is not the best way forward. Drafting tends to disclose any flaws a policy may have and, more often than not, will force some modification of it. It can even result in a policy being abandoned.

Just as the preparation of Bills forces OPC to actively consider policy matters, instructing Agencies need to be active participants in the drafting process. Legislative drafting can only be carried out well if the instructing Agency vets drafts carefully and provides OPC with constructive feedback.

No draft of a proposed Bill from OPC should ever be accepted uncritically and an instructing Agency that does not believe a particular draft will give proper effect to a


proposed policy should unhesitatingly say so. It should also speak up if it believes the draft to be unclear or ambiguous.

As suggested, the drafting process may sometimes require the assigned drafter to work very closely with the instructing officer, particularly where technical matters are concerned. In such cases, the instructing officer may even need to take an active hand, through regular attendance at OPC, in working up the draft. In other cases, it may be possible for the assigned drafter and instructing officer to settle a draft without face-to-face contact.

Depending on the circumstances, it is sometimes possible to settle a draft of a Bill after just one or two attempts.

More commonly, particularly for large or complex matters, multiple drafts will be needed.

The better the instructions, the quicker the process will be.

4.1.3 The mechanics of drafting

Tasmania uses a computerised legislative drafting system: EnAct.

With this system, proposed legislation is drafted directly on screen and stored in Standard Generalised Mark-up Language [SGML]. This is an international formatting language that confers a formal structure on the draft and establishes the relationship between its various components.

This means that the drafter must assign a discrete electronic/legislative tag to every major component of the draft (like the headings, clauses and schedules) and many of its subsidiary components (like the dates, definitions, penalties and cross-references) so that, once made, the legislation –

• can be posted onto the Tasmanian legislative database [see chapter 7.3] and accessed through the Tasmanian Legislation Website

• will support the automatic consolidation, historical tracking, point-in-time searching and other features of that website

• is captured in a format that is not dependent on the future availability of any specific technology.

EnAct yields dividends at the end of the legislative drafting process, but imposes a cost at its beginning because drafters must attend to the system's formatting requirements as they go.

This is an exacting task that takes time – eg to capture a single legislative cross-reference so as to ensure that it will be hyperlinked on the Tasmanian Legislation Website, the drafter must take more than 10 discrete keying actions.

Consequently, in some respects the initial phase of the legislative drafting process is now slower than in the days of pen and ink.

A further challenge with EnAct is that it will not allow a drafter to finalise a draft of proposed legislation until it has been saved in its entirety as an SGML document. If, in attempting that, the system has difficulty processing a particular electronic command it


will generate what is known as an SGML error. Correctly identifying and fixing such errors can be a very time-consuming and painstaking task.

Of course, once a draft of entirely new legislation has been captured on EnAct it will usually be relatively easy to produce further versions of it because, in the absence of major changes, the drafter can build on or rework the "electronic platform" so captured.

For amending legislation, the advantage of EnAct is that the required changes can be marked up straight onto an electronic copy of the principal legislation and, once that has been done, a draft of the amending legislation can be automatically generated.

The system itself checks that the amendments can be correctly incorporated and OPC and the instructing Agency can see from the mark-up what the amendments will look like in situ.

Sometimes, however, automatically generated amending legislation contains odd wording and formatting – ie wording and formatting that one would not expect to find if the same amendments were drafted by hand.

However, given the State's large investment in EnAct, OPC's default policy is to accept EnAct-generated drafts regardless of their idiosyncrasies. As long as proposed amendments are correctly entered by the drafter, the system will process them correctly even though its "commands" may appear a little odd, at times even vague.

Automatically generated drafts can be overridden manually but this takes time and sustained effort. Moreover, it is a technical task of some delicacy that often needs the expert input of OPC's legislation systems officers.

OPC has also found that overriding EnAct's automatically generated wording or formatting poses a risk to the integrity of the drafting process.

Accordingly, OPC will only interfere with EnAct-generated drafts in exceptional circumstances.

4.1.4 Formatting options for drafts

Working in EnAct [see chapter 4.1.3] enables a drafter to format a draft Bill in one of two ways.

One of these, the camera-ready format, produces a clean unannotated document that is useful for briefings and consultations. It is called the camera-ready format because once the draft has been settled it can be transmitted to the Government Printer electronically, and printed, without further intervention.

The other format is called the draft format. This produces a document that is more useful for day-to-day working purposes because it will have a version number – which enables the drafter and the instructing officer to track the various iterations of the draft – and it can also contain working notes.

These working notes can be –

• client notes for the instructing Agency's attention

• private notes for use by the drafter and/or OPC's administrative staff.


Client notes are particularly useful because they relieve OPC of the need to write interrogatory or explanatory covering letters for the draft; questions can be raised directly in the relevant part of the legislative text.

The drafter has the option of including or omitting working notes, or working notes of either category, at any stage of the drafting process.

The draft format may also include optional words, phrases or provisions for discussion, indicated in the draft by italics and square brackets.

4.1.5 Quality of working drafts

Because EnAct requires drafters to key in their own work [see chapter 4.1.3] working drafts of proposed Bills may contain minor typographical or formatting errors.

Such errors can be eliminated, but only if the drafts are run out and QA-checked and the affected provisions are correctly re-entered.

However, trying to perfect each and every working draft of a Bill would –

• take a lot of time

• yield, in terms of the effort expended, a meagre dividend

• greatly reduce OPC's output.

In the discharge of its drafting responsibilities, OPC's aim has always been to ensure that government legislation is prepared and settled as speedily as possible. Accordingly, it has been prepared to tolerate minor blemishes in EnAct-generated working drafts on the understanding that those blemishes will be detected and fixed later on in the process [see chapter 5].

4.1.6 How can instructing Agency facilitate drafting process?

In addition to the matters mentioned in Schedule 2 with regard to instructions, an instructing Agency can do many things to facilitate the drafting of a Bill. Some of these are listed in Part 1 of Schedule 3.

By way of contrast, some of the things that commonly hinder the drafting process are listed in Part 2 of Schedule 3. It helps OPC if an instructing Agency can avoid doing many of the things mentioned in that list.

4.1.7 Duration of drafting process (Overview)

By way of drawing together some of the previous material, the duration of the drafting process for a Bill will depend on such factors as –

• the quality of the instructions

• the size and complexity of the job (legally and technically)

• OPC's overall workload and drafting priorities (which may change frequently)

• the assigned drafter's own workload and drafting priorities (which may also change frequently)


• whether there are any critical factors like deadlines or political undertakings

• the extent of the instructing officer's authority

• the time it takes the instructing Agency to turn drafts around.

4.2 Drafting: Some drafting and legal considerations

4.2.1 Structure of Bills, &c.

For the purposes of preparing instructions and settling drafts, instructing Agencies should note that Bills and Acts are subdivided as follows:

• Bills:

1. Clause

(1) subclause

(a) paragraph

(i) subparagraph

• Acts:

1. Section

(2) subsection

(a) paragraph

(ii) subparagraph

OPC does not favour the division of subparagraphs unless it is absolutely unavoidable. In the rare cases where such division is necessary the resulting components are called sub-subparagraphs and they are "numbered" (A), (B), (C) and so on.

The headings to the substantive individual sections of an Act are not part of the law: Acts Interpretation Act 1931, s.6(4).

Sections of a similar kind in an Act can be grouped into Parts, Divisions and Subdivisions as necessary or appropriate. The headings to these groupings are part of the law: Acts Interpretation Act 1931, s.6(2).

A clause or subclause of a Bill should be self-contained and comprise a single grammatical sentence.

A Bill may contain one or more schedules. If so, they should be numbered sequentially. Schedules may be subdivided into Parts, Divisions and Subdivisions. These may be subdivided into clauses, subclauses, paragraphs and subparagraphs, or, if it is more appropriate to do so in the circumstances, subdivided into items. Items, in turn, may employ paragraphs. Schedules, and their headings, are part of the law: Acts Interpretation Act 1931, s.6(3).

The "legislative machinery" provisions of a Bill – short title, commencement, interpretation, application – will be placed at the front of the Bill. The schedules, regulation-making power and administrative provision of a non-amending Bill will be


placed at the end, as will any consequential amendments to, or repeals of, other legislation and transitional and savings provisions.

Note that Tasmania generally uses forward (major to minor) referencing when referring to legislative provisions – eg section 6(1), subsection (3)(a). It does not, as in some other jurisdictions, use reverse referencing – eg subsection (6)(1), paragraph (3)(a). If reference needs to be made specifically to a minor component it must be set out in full – eg paragraph (a) of section 9.

A bare reference in an Act to a Part, Division, Schedule or other provision is, in the absence of a contrary indication, a reference to a provision within the Act itself: Acts Interpretation Act 1931, s.7A(1). The same rule applies to the internal references of any provision or schedule: Acts Interpretation Act 1931, s.7A(2) & (3).

Note that Bills have clauses, Acts have sections. In other words, the clauses of a Bill only "mutate" into sections if the Bill is enacted.

A little care is needed here though, when speaking of BiIls and Acts, because some Bills contain schedules which will often be subdivided into clauses (and subclauses). These will still be called clauses (and subclauses) if the Bill is enacted.

4.2.2 Short title

For citation purposes, each Act is given a short title. The name of the Bill for the Act will always reflect that title.

There are certain drafting conventions that govern the naming of Acts and they are numbered according to the calendar year in which they pass: Acts Enumeration Act 1947, s.2. If a Bill introduced in one year is not dealt with and passed until the following year of the same Parliament its title, and the short title of the proposed Act, will need to be updated (unless the Bill is withdrawn and recommitted).

An Act's short title is determined by its subject matter. Thus, a new Act dealing with boating generally might simply be called the Boating Act 2010.

If the subject matter is more limited this may be reflected in the title – eg Boating (Safety) Act 2010 or Boating (Licensing) Act 2010.

An Act that deals with an assortment of matters may be given a short title to indicate its scope – eg Boating (Miscellaneous) Act 2010.

If an Act is an amending Act, its status will nearly always be signified in its short title – eg Boating Amendment Act 2010.

If several amending Acts are passed in relation to the same Act in the same year they are sometimes differentiated numerically – eg Boating Amendment Act (No.2) 2010, Boating Amendment Act (No. 3) 2010. Alternatively, they might be differentiated according to their main subject matter – eg Boating Amendment (Licensing) Act 2010; Boating Amendment (Safety) Act 2010.

Because of the drafting conventions and the CPC's overall responsibilities for the statute book, the naming of new Acts is usually a matter for OPC. However, instructing Agencies are free to make recommendations.


Instructing Agencies should note, however, that OPC takes a conservative and neutral approach to the naming of Acts. So, while an Act can be given a distinctive and informative short title to distinguish it from other Acts, it is best if short titles are not used as a vehicle for sloganeering – eg Boating (Making Our Waterways Safer for Children to Enjoy) Act 2010.

4.2.3 Long title

A Bill is required to have a long title encompassing all matters included in the Bill.

In the case of a Bill for a new Act the long title should indicate the general purpose and scope of the Act. If the Act is to cover matters that cannot be conveniently included in the long title further general words are added (usually the expression "and for related matters").

In the case of a Bill for an amending Act the long title should, except in very special cases, be expressed to be for "an Act to amend the … Act".

The long title must not be used to sloganeer or dissemble; the latter could constitute a contempt of Parliament.

The long title is critical to the Parliamentary process because, among other things –

• it is the only thing read out at each reading stage [see chapter 6]

• under Parliamentary Standing Orders, any amendments must be relevant to the subject matter of the Bill.

The long title can be a critical factor in determining legislative intent in judicial proceedings: Acts Interpretation Act 1931, ss.8A & 8B.

It is essential that Bills in a package do not have the same long title.

If a Bill is amended – for example by the omission of clauses or Schedules – the long title may also need to be amended.

The formatting of the long title is governed by certain drafting conventions that are really only of concern to OPC. Briefly though –

• the long title must be set out in bold and, apart from legislative citations, roman font

• capitals are not generally used except for legislative citations and proper nouns

• the standard relative expression used is "relating to", as in "Bill for an Act to consolidate the law relating to sentencing"

• the terminology should not be at odds, either as to form or usage, with that of the actual Bill

• the long title should not contain any full stops unless they are technically necessary (as might be the case with a company name).


4.2.4 Enacting formula

In Tasmania the enacting formula (used for all Bills) is: "Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:"

4.2.5 Preambles

Preambles are only used on those special occasions where there is a need to put new legislation in some kind of context in order to explain its origins or rationale. Such occasions are rare; a statute usually speaks for itself and needs no "introduction".

For some recent examples of the correct use of preambles see: National Trust Preservation Fund (Winding-up) Act 1999, Lyons Trusts Act 1993 and Trustee Companies (Merger) Act 2001.

4.2.6 Commencement

Nearly all Acts contain a section specifying when they commence.

In the rare cases where there is no express commencement, the Act commences on the 14th day after the day on which it receives the Royal Assent: Acts Interpretation Act 1931, s.9(3).

The usual commencement options are –

• on Royal Assent

• on a specified day (either prospective or retrospective)

• on a day proclaimed by the Governor

• on the commencement of some other piece of legislation.

The provisions of an Act do not have to commence all at the same time. Different sections, or even subsections – or clauses or subclauses in the case of Schedules – may be given different commencements. However, except in rare cases, lower-ranked legislative provisions like paragraphs, subparagraphs and items cannot.

If the provisions of an Act are not intended to commence all at the same time, OPC should be informed of that intention at the start – not the end – of the drafting stage.

Where any legislative provision is expressed to commence on a specified day it comes into force at the very beginning of that day. The same applies if the Act is expressed to be repealed on a specified day.

Note, though, that if an Act is expressed to expire or cease to have effect on a specified day – as opposed to being repealed on a specified day – it expires or ceases to have effect at the very end of that day: Acts Interpretation Act 1931, s.16(4).

4.2.7 Interpretation provisions

Many Acts contain definitions to aid readability and compression.


Although the definitions are certainly part of the law, they are ancillary in nature and should not really be regarded as an operative component of the Act. In other words, an instructing Agency should not try to regulate anything by means of a definition.

An Act should contain as few definitions as possible.

It is a safe rule when drafting a Bill to consider and insert definitions last (according to strict need) rather than first (according to expectation).

The general underlying interpretative framework for Tasmanian Acts, and statutory rules made under them, may be found in the Acts Interpretation Act 1931. This framework is essentially derived from the English case law relating to the construction and interpretation of statutes, which law flowed through to the various Australian colonies. This framework is still fairly standard throughout Australia.

4.2.8 Constitution Act 1934

The Constitution Act 1934 contains important provisions relating to the legislative powers of the Tasmanian Parliament and provides for the making of Parliamentary Standing Orders.

Standing Orders govern the conduct of business in each House of Parliament, including its dealings with the other House, the passing of Bills and the presentation of Bills to the Governor for Royal Assent.

Part IV of the Constitution Act 1934 deals with Money Bills and, among other things, provides that these must originate in the House of Assembly.

A Bill providing for the appropriation of money or of any tax, rate, duty or impost requires a gubernatorial recommendation – known as Governor's message – to the House of Assembly. The Standing Orders of that House require that the relevant appropriation clause is marked by a heavy perpendicular line – known as a gross line or bar line – in the margin of the Bill.

In such cases, OPC will ensure that the gross line is included, but it is the instructing Agency's responsibility to arrange for the Governor's message.

4.2.9 Offences and penalties

In drafting a statutory offence there are many issues to consider. These include the nature of the wrongful act or omission, the identity of the offender, the requisite mental element, potential third-party liabilities, the nature, scale and proportionality of the penalties, the onus of proof and possible defences, placement in the legislative scheme, the time for instituting proceedings and possible alternative sanctions (like infringement notice schemes).

If OPC is instructed to include an offence or a crime (an offence punishable on indictment as provided for in the Criminal Code) in a Bill, these issues will be carefully considered in the course of drafting.

Monetary penalties in statutory offences are always expressed in penalty units: Penalty Units and Other Penalties Act 1997. The value of a penalty unit – originally $100 – is now indexed.


4.2.10 Automatic repeal of amendments

It is now standard practice to include an automatic repeal clause in most amending Bills.

Once enacted, such a clause repeals the amendment legislation after a specified time, thereby keeping the legislative database – and thus the Tasmanian Legislation Website – as lean and user-friendly as possible.

This does not affect the substantive amending actions contained in the Bill as these will have been incorporated into the law by the time of repeal. The standard clause provides for repeal after 90 days but this can be varied on request.

It is also standard practice for a Bill to provide for the repeal of any related spent legislation.

Note that repealed amending legislation can still be easily searched on the Tasmanian Legislation Website by using the advanced search window and checking the sessional version of the legislation.

4.2.11 Administration provisions

It is now standard practice to include towards the end of a Bill for an entirely new Act a clause to identify which Minister and Agency will be responsible for its immediate administration on enactment.

Thereafter administrative responsibility for the Act can be varied by orders under the Administrative Arrangements Act 1990.

Note that different Ministers and Agencies may sometimes administer different provisions of the same Act.

4.2.12 Public and private Acts

All Tasmanian Acts are public Acts: Acts Interpretation Act 1931, s.9(7).

This simply means that they are taken to be legislative measures of and in the general public interest even where they deal with private individuals or matters of purely limited interest. These days there are no private or semi-private Acts.

4.3 Drafting: Some procedural considerations

4.3.1 Agency to deal only with assigned drafter

Once an Agency knows that its instructions for a proposed Bill have been assigned to a particular drafter, it should, as regards that matter, deal only with that drafter.

The instructing Agency should not directly approach other drafters about the matter and under no circumstances should it try to issue directions to, make demands of or seek legislative drafting or other legal advice from OPC's administrative staff.

That would be unsafe and improper because –

• given the way EnAct works, experience indicates that the approach could result in a serious error or misunderstanding


• OPC's administrative staff are not expected or, indeed, legally permitted to provide legal advice or exercise legislative drafting responsibilities

• drafters exercise a high degree of individual control over their own files so, if asked to advise on the files of others, there is generally some professional uneasiness.

If the assigned drafter is for any reason unavailable when the instructing Agency needs some advice or assistance on the file, it should contact the CPC. If the need is genuine and urgent it may be possible to arrange for another legislative drafter to help the instructing Agency.

4.3.2 Communicating with assigned drafter, &c.

While a Bill is being drafted, the instructing officer and assigned drafter will generally communicate by such methods as they may from time to time agree or as may be called for by circumstance.

Ordinarily, written communication with the assigned drafter may be made by one of the methods referred to in chapter 3.5.

However, emails to the assigned drafter should be directed through the central OPC email address: [email protected]. Otherwise the correspondence has to be double-handled with a corresponding loss of time and efficiency.

OPC often sends out draft legislation and related correspondence by email, with hard copy only being provided on request. But there is no rule on this; different drafters work in different ways; some still prefer to make frequent or occasional use of hard copy.

4.3.3 Formatting restriction for emailed drafts

Instructing Agencies should note that OPC does not release electronic drafts of Bills except in pdf format.

This policy has been put in place to protect the integrity of the legislative drafting process, the aim being to stop modified and unauthorised draft Bills being put into government circulation or, worse, released into the public arena.

Drafters who wish to send out a draft Bill electronically in rtf or any other format must, on each and every occasion, obtain the express permission of the CPC to do so.

Such permission is rarely given.

4.3.4 Variation from Cabinet Decision

As indicated [see chapter 2.3] the terms of a Cabinet decision for a Bill – being the expressed will of the lawfully constituted executive arm of government – are prima facie binding and must be followed to the letter.

But sometimes it will be found through the drafting process that –

• additional legislative measures need to be included in a Bill

• a legislative proposal sanctioned by Cabinet cannot be implemented quite as it intended


• there are obstacles to a legislative proposal

• there are better legislative solutions than those which were apparent when the decision was made.

In such cases it is understood that OPC and the instructing Agency may need to exercise a modest degree of discretion in working up the legislation even if this involves some slight deviation from the strict terms of the Cabinet decision.

This enables a better Bill to be drafted whilst still ensuring that the Cabinet decision is not frustrated as to its essentials. It also ensures that the government's legislative agenda does not get bogged down, as it would if, during the drafting process, formal endorsement had to be obtained from Cabinet for each and every deviation from the strict terms of its decision.

Ordinarily, when a Minister approves a Bill and refers it back to Cabinet, he or she is effectively certifying that it reflects government policy and implements the Cabinet decision.

So where a Bill does not exactly match the Cabinet decision it is up to the instructing Agency to ensure that the deviations have been cleared with the Minister and that the Minister is advised to bring them to Cabinet's attention for endorsement [see chapter 5.3].

Note, though, that if OPC apprehends that the provisions of a Bill may need to deviate from the strict terms of the Cabinet decision in major respects, the assigned drafter will probably seek some kind of interim clearance from the Minister before proceeding to draft those provisions.

Sometimes it is quite apparent that Cabinet is resolved on prescriptive legislative action. In such cases –

• it is not appropriate for OPC or the instructing Agency to deviate from the strict terms of the Cabinet decision in working up the legislation

• any policy, legal or legislative drafting concerns could only be raised with Cabinet by means of separate advice.

4.3.5 Confidentiality

OPC treats all draft legislation as prima facie privileged and confidential to the Crown. Accordingly, it will not directly release a draft Bill to anyone but the instructing Agency unless, for example –

• it has been directed to do so by Cabinet or the responsible Minister

• it has been asked to do so by the Head of the instructing Agency

• it needs to obtain expert government advice to advance its work (for example, an opinion from the Solicitor-General).

Draft Bills are, of course, sometimes circulated within government or publicly released for regulatory impact, industry consultation and other purposes, but responsibility for arranging that lies with the Agency. Even so, an Agency that proposes to circulate a draft


Bill outside government circles would be well advised to liaise with OPC beforehand so that it can ensure that the draft is in a suitable form for public release.

EnAct allows for various kinds of legislative formatting and notation [see chapter 4.1.4] and, moreover, it automatically endorses each draft as "confidential".

Draft Bills should only be publicly released if –

• they are in a reasonably clean and polished form

• they contain any necessary warnings as to their draft status

• the confidentiality endorsement has been removed.

This will prevent public misunderstanding. In particular, rough notated working drafts should not be posted on official government websites.

4.3.6 Costing

Although legislative drafting is a core government function, OPC is required to recover the cost of some drafting services.

The CPC decides whether a charge should be imposed for a particular drafting service by reference to certain cost-recovery guidelines which are available on this OPC website.

Essentially, OPC has to recover the cost of drafting a Bill if –

• the drafting is for an off-budget Agency or statutory authority

• the drafting involves a matter that will produce a direct financial return to the State

• external funding is available

• the drafting involves a major review or rewrite of an Act (or major parts of an Act)

• there is inadequate lead time.

Given cost-recovery, an instructing Agency should do everything it reasonably can to facilitate the drafting process and minimise its duration [see Schedules 2 and 3].

Conversely, an instructing Agency that hinders the drafting process may incur extra expense.

4.3.7 Role of Solicitor-General

The drafting of any legislation necessarily requires the drafter to correctly identify, work through and solve the relevant legal issues.

Sometimes, however, a legal issue of special difficulty emerges or the instructing Agency and OPC may disagree.

When that happens, it may be necessary or expedient to seek an opinion from the Solicitor-General, the Crown's chief legal advisor.

Usually it is the instructing Agency's job to seek that opinion. When so doing, though, it is critical that the issue is correctly identified and that the correct questions are asked free of bias. This can be done in consultation with the drafter. If the issue is not correctly


identified or the correct questions asked, the Solicitor-General's time is wasted and the issue will not be resolved.

Once obtained, the Solicitor-General's opinion is authoritative; it cannot be "undone" if the instructing Agency finds it inconvenient. In effect, the Solicitor-General's opinion becomes the Government's stance on the issue unless and until a court of competent jurisdiction holds to the contrary or Cabinet gives a lawful contrary direction.

An Agency that provides OPC with a Solicitor-General's written opinion touching on a proposed Bill should attach a copy of the request for that opinion. Otherwise it may be hard for OPC to understand the opinion. Similarly, if the Solicitor-General gives an Agency oral advice, it is critical that the advice is relayed to OPC faithfully.

Before an Agency provides OPC or any other person with a copy of a Solicitor-General's opinion it should, as a courtesy and precaution, check that the Solicitor-General has no objection to it so doing.

Some Agencies have strict controls on the commissioning of legal advice. Instructing officers should not approach the Solicitor-General without first checking on the relevant protocol; it may be necessary to clear the approach with, for example, the Head of the Agency.

The Solicitor-General does not charge Agencies for legal advice but, even so, instructing officers also need to be aware that there is a general government policy relating to the procurement of legal advice [see Treasurer's Instruction 1118 of 22 December 2006: "Procurement of Legal Services" (accessible through the Department of Treasury and Finance website)].

Occasionally OPC finds it necessary to seek the Solicitor-General's advice independently on general or particular drafting issues. However, if the request could impact on a draft in progress, the assigned drafter is expected to keep the instructing Agency informed as a matter of courtesy.

In seeking advice from the Solicitor-General on legislative proposals an Agency, should, as far as possible, not try to elicit prescriptive direction as to their precise form or content and thereby curtail proper drafting discretions.

4.3.8 Complaints

When OPC receives instructions for a proposed Bill it will try to process those instructions and settle a draft as speedily and as efficiently as time, workload, priorities and other circumstances allow. Drafters are expected at all times to be professional, courteous and open in their dealings with instructing Agencies and instructing officers.

If an Agency is dissatisfied with how a matter is progressing it should raise its concerns in the first instance with the assigned drafter. If the Agency still has concerns afterwards, it may contact the CPC.

But the CPC will not entertain a complaint about a drafter merely because the drafter has given another Agency's work more time and attention consistent with the priorities of the government's legislative program or has, in good faith, made a professional judgment that is not to an instructing Agency's liking.


4.4 Drafting: Agency approval

Once an instructing Agency is satisfied with the draft of a proposed Bill, it must give OPC written notice to that effect [notice of approval].

The notice of approval may be given by any of the methods referred to in chapter 3.5.

OPC cannot and will not under any circumstances release the draft to the Minister for submission to Cabinet until it has the notice of approval to hand.

The notice of approval is crucial because it signifies that the instructing Agency is, in effect, accepting that the draft will give legislative effect to the relevant policy. By giving OPC the notice of approval, the instructing Agency assumes responsibility for the proposed Bill and warrants that it is content for the draft to be put into final form for submission to the Minister and Cabinet and subsequent introduction to Parliament.

The notice of approval should be given to OPC by a senior executive officer of the instructing Agency [see chapter 3.1] or by the instructing officer. If given by the instructing officer, OPC will assume that that officer has power to approve the draft even if he or she does not hold a senior executive position within the instructing Agency.

In other words, in the absence of extraordinary circumstances, OPC will accept the purported approval of a Bill as genuine and binding.

5 FINAL PREPARATION

5.1 Quality assurance checking

Once an instructing Agency has approved the draft of a Bill, the assigned drafter will have it checked by OPC's quality-assurance officer.

This quality-assurance [QA] check is compulsory and the instructing Agency will need to make allowance for it in its timetable.

The idea of the QA check is to have the settled draft of the Bill independently vetted to ensure that as far as possible it is free of grammatical, formatting and other blemishes.

The QA officer also checks that the settled draft of the Bill generally conforms to the approved style for Tasmanian legislation and that the assigned drafter has followed any relevant "in-house" drafting instructions.

The QA officer also double-checks that any proposed legislative amendments will be capable of being correctly incorporated into the relevant principal legislation and that there are no competing prospective amendments.

The QA check is, however, only a safeguard; it does not relieve the assigned drafter or instructing officer of responsibility for the draft.

The time needed for the QA check will depend on such factors as the length and complexity of the draft and the amount of work that the QA officer has on hand at the time. QA priorities can fluctuate daily or even hourly.

Despite those constraints, draft Bills can usually be QA-checked inside one working week.


An Agency that wishes to find out how long a given QA check is likely to take should consult the assigned drafter; it must not directly approach the QA officer.

5.2 What happens after quality assurance checking?

Once the QA officer has checked the settled draft of a Bill, it will be given back to the assigned drafter together with a completed checking report.

If the draft is given the "all-clear", the assigned drafter can proceed to the next stage of the drafting process [see chapter 5.3].

If the QA check throws up any concerns, the QA officer will note them on the draft. It is then up to the assigned drafter to evaluate each of those concerns and exercise his or her professional judgment, firstly, as to whether the draft needs to be changed in any way and, secondly, whether any such change needs to be cleared with the instructing Agency.

If the QA check only identifies the need for a few minor corrections that do not affect the meaning of the draft, the assigned drafter is likely to make those corrections without further reference to the instructing Agency.

For anything more serious the assigned drafter may have to consult the instructing officer. Depending on the circumstances, it may be possible to settle the necessary changes informally – perhaps by telephone or a short meeting – or it may be necessary to prepare a revised, corrected draft of the proposed Bill.

It is important that instructing Agencies understand that, because of the QA process, the draft that they sign off on will not necessarily be exactly the same as the draft that finally emerges from OPC.

5.3 Final copies (Approval, endorsement and printing)

Once a draft Bill has been settled and QA-checked, OPC will, if everything is in order –

• send 2 copies of the draft Bill to the Minister (under covering memo) for approval and submission to Cabinet for its endorsement

• send copies of the draft Bill (and the covering memo) to the Manager of the Cabinet Office, the Parliamentary Liaison Officer, the Leader for the Government in the Legislative Council and the instructing Agency.

If the Minister requires any revision of the draft Bill, OPC will make those revisions in conjunction with the instructing Agency and repeat the above process.

If the Bill is approved by the Minister and endorsed by Cabinet, OPC will send a camera-ready copy of it to the Government Printer for printing and introduction into Parliament.

The Government Printer will then print the Bill and distribute final copies to OPC and the Clerk of Papers at Parliament.


6 THE PARLIAMENTARY PROCESS

6.1 Preliminary

This chapter contains a brief overview of the parliamentary process for routine Bills.

The overview is necessarily generalised and rudimentary as it is not possible in a manual of this kind to explain, particularly for a bicameral legislature, all of the possible legislative procedures or protocols.

More detailed information on this may be found on the Parliament of Tasmania website.

6.2 First reading

A Bill begins its journey through Parliament when the Minister or member having carriage of it presents it in the originating House and the question is put "that the Bill be now read (the) first time". This is really just a formality and the question is put without amendment or debate.

At this stage the Clerk of the House will read out the long title and make copies available to members.

Usually the Bill is then listed for Second reading on a future day and a fixed time must pass – 2 days in the House of Assembly and 3 days in the Legislative Council – before the Bill can proceed to that stage.

Note that Bills are usually introduced into the House of Assembly but a Bill may be introduced in the Legislative Council if it is not a Money Bill.

6.3 Second reading

At this stage the relevant Minister or member having carriage of the Bill will move that "the Bill be now read a second time" and will then outline the policy of the Bill in what is known as the Second reading speech.

The Bill is then debated.

Only after the Second reading debate is completed – which signifies the Bill has been agreed to in principle – can the Bill proceed to the next stage.

6.4 Committee stage

Usually, a Bill that has passed the Second reading stage is committed to a "Committee of the Whole House" to be examined clause by clause, together with any schedules and the long title.

The committee signifies its support for a clause by assenting to the question of the committee chair "that the clause as read stand part of the Bill".

Such question being put, amendments may be proposed to the clause.

Roughly speaking, amendments may only propose the leaving out of words, the "substitution" of words or the addition or insertion of words to the clause.


Note that if the clause is not supported in its entirety it cannot be "replaced" except by voting against it and, afterwards, proposing a discrete amendment for the insertion of an entirely new clause.

Under the Standing Orders, amendments must be relevant to the subject matter of the Bill and follow a precise order.

When a clause has been amended the question is put "that the clause as amended stand part of the Bill".

Once a Bill has been considered in committee, the committee chair reports progress to the House, reporting the Bill without amendment or with amendment and –

• if the Bill is reported without amendment it may be taken to the next stage

• if the Bill is reported with amendment the House will consider the amendments before taking it to the next stage.

In the House of Assembly it is possible to skip the committee stage and go directly to the Third reading if the House supports the Bill. A similar process applies in the Legislative Council but only for "cognate Bills".

It is also possible for a Bill that has had a Second reading to be referred to a Select Committee rather than a Committee of the Whole House.

6.5 Drawing of amendments

Apart from some specific constitutional limitations relating to the Legislative Council, a Bill may be amended in either House of Parliament.

Any member may move an amendment to a Bill. However, the Minister having carriage of the Bill usually moves government amendments in the House of Assembly and the Leader of the Government usually moves such amendments in the Legislative Council.

A member proposing an amendment may draw it personally or arrange to have it drawn by an advisor or helper; there is no rule about this.

However, the drawing of amendments is frequently a conceptually and technically difficult task, particularly since the advent of EnAct. So the government usually directs or authorises OPC to draw them and will do so even in the case of non-government members of the Legislative Council (though not in the case of non-government members of the House of Assembly).

It is absolutely critical, in drawing any amendment, that the correct print of the Bill is used and that Standing Orders are observed.

Note that when OPC draws an amendment for a non-government member –

• it is ethically bound to give that member the best possible advice on the amendment even if it runs counter to government policy

• the advice is prima facie confidential and privileged.

When OPC draws a government amendment –


• it will usually be settled with the instructing officer and sent to that officer for transmission to the Minister or Leader

• a copy will be sent to the relevant parliamentary officers.

When OPC draws an amendment for a non-government member of the Legislative Council –

• it will be settled directly with the member (which, with the member's express or implied permission, will usually be done through the Leader's Office)

• a confidential copy will be sent to the relevant parliamentary officers

• OPC will not, without the express or implied permission of the member, provide a copy of the amendment to the instructing Agency nor discuss the amendment or its form or merits with the instructing Agency.

6.6 Third reading

At this stage the question is put "that the Bill be now read the third time" which, if passed, effectively completes its passage through the House.

Before the Bill can be given its Third reading the committee chair must certify that it is in accordance with the Bill as reported, and the presiding officer must announce to the House that such certification has been given.

6.7 Agreement of both Houses

Once a Bill has passed the originating House its Clerk will sign the Bill and forward it for the concurrence of the other House.

For a Bill to become law, both Houses must agree to the Bill and any amendment of it.

7 FINAL PROCESSING, &C.

7.1 Proof of vellum

After a Bill has passed both Houses of Parliament –

• the Clerk of the Legislative Council –

o marks up a copy of the Bill as a proof-of-vellum and gives it an Act number in accordance with the Acts Enumeration Act 1947 and Standing Orders

o sends the proof-of-vellum to OPC

• the proof-of-vellum is checked by OPC and then re-checked by the Clerk of the Legislative Council to ensure, among other things, that the Bill correctly incorporates any parliamentary amendments, that it is correctly printed and that no clerical, pagination, numbering or other formatting blemishes have crept in

• any such blemishes can be removed or fixed at this stage.

Once OPC receives the "all-clear" from the Clerk of the Legislative Council –


• it sends a camera-ready copy of the proof-of-vellum to the Government Printer to be printed as an Act containing a gubernatorial endorsement (so that it can be presented for Royal Assent)

• it sends the Government Printer a further, final, copy of the Act, without a gubernatorial endorsement (for later printing and distribution).

7.2 Final print, Royal Assent, &c.

Once the Government Printer receives the camera-ready copy of the proof-of-vellum containing the gubernatorial endorsement, it is printed on special parchment, bound in blue ribbon, and sent to the President of the Legislative Council to hold until the Act can be presented to the Governor for Royal Assent.

If it is a Money Bill it will presented to the Governor by the Speaker of the House of Assembly.

If the Act is given Royal Assent –

• it becomes law regardless of when it commences

• the copy signed by the Governor, and bearing the State seal, is sent to and kept in the vaults of the Supreme Court.

The unendorsed final copy of the Act mentioned in chapter 7.1 is then printed and generally distributed, saved to the legislative database, and made available for public viewing on the Tasmanian Legislation Website.

Note that if the Act did not commence on Royal Assent then at this stage it will only be viewable on the Tasmanian Legislation Website as a sessional version.

7.3 Legislative database (Authorised versions)

The CPC is required to establish and control an electronic database of the State's legislation, including Bills: Legislation Publication Act 1996 [LPA], s.5.

The State's Acts are to be taken in all circumstances and for all purposes to be as they appear from time to time in the authorised versions of the Acts: LPA, s.6(1).

At a given date, the authorised version of an Act made on or after 23 March 1998 is the version that is on the database at that given date: LPA, s.6(2). However, it should be noted that the legislation available for viewing by the public on the Tasmanian Legislation Website is not the authorised version.

If for any reason an Act made on or after 23 March 1998 is not on the database, the authorised version of that Act is the copy filed and recorded in the Supreme Court: LPA, s.6(3A).

To find out which is the authorised version of an Act made before 23 March 1998 (whether it is on the database or not) see LPA, ss.6(4) & 6(8).

The CPC may approve the production of copies of authorised versions of Acts and copies of reprints of Acts in electronic or printed form by a person approved in writing by the CPC


– namely the Government Printer – for the purposes of production or distribution: LPA, s.6(10).

For more about this matter see, generally, LPA, Pt.2.

7.4 Reprints

The CPC may authorise and cause a reprint of an Act to be compiled: LPA, s.9.

For more about this matter see, generally, LPA, Pt.3.

7.5 Annual volume

The CPC arranges for an annual volume of Acts to be prepared and published.

The annual volume contains –

• all of the Acts printed and numbered for the relevant year [see chapter 7.1]

• such other information as the CPC determines.

The annual volumes can be purchased from the Government Printer. Most Departmental libraries and all legal libraries will hold copies of them.

8 MISCELLANEOUS

8.1 The Legislation Review Program

Under the Competition Principles Agreement – which forms part of the National Competition Policy – Tasmania was required to review and, where appropriate, reform all legislation restricting competition by 2002. Pursuant to this the Tasmanian government approved a Legislation Review Program [LRP].

The guiding principle of the LRP is that legislation should not restrict competition unless it can be demonstrated that –

• the benefits of the restriction to the community as a whole outweigh the costs

• the objectives of the legislation can only be achieved by restricting competition.

Where primary legislation imposes a major restriction on competition, the responsible Agencies are required to prepare a regulatory impact statement and go through a public consultation process.

Further information about LRP requirements and related matters may be found on the Department of Treasury and Finance website, particularly in the entries relating to that Department's Economic Reform Unit.

8.2 Annual index

At the end of every year OPC publishes a booklet called Indexes to the Legislation of Tasmania. This can serve as a handy ready reference for Agencies and the public and also as a back-up to the Tasmanian Legislation Website.

Copies of this booklet can be purchased from the Government Printer.


8.3 What to do if Bill not proceeding

If for any reason a Bill is not proceeding, the Instructing Agency should tell OPC at once so that it can –

• close its file

• if necessary, cost the file and render an account

• remove the file from the EnAct workflow and its other systems.

8.4 Further information

A person who is charged with instructing OPC on a Bill may find it helpful to read and familiarise themselves with the following:

• Acts Interpretation Act 1931

• Legislation Publication Act 1996

• the information and resources available on the OPC website:

• the annual Indexes to the Legislation of Tasmania [see chapter 8.2]

http://www.dpac.tas.gov.au/divisions/opc/

• the information set out at the front of each annual volume of Tasmanian Acts published by the Government Printer [see chapter 7.5].

9 SCHEDULES

9.1 Schedule 1 - Dictionary

In the manual -

"Agency" means a department or other instrumentality of the Tasmanian government

"assigned drafter" means the drafter responsible for drafting a Bill

"Bill" means a draft of a proposed law that is to be made directly by Parliament (as distinct from delegated legislation)

"CPC" means the Chief Parliamentary Counsel

"drafter" means a legal practitioner (known as a Parliamentary Counsel) employed in OPC to draft legislation

"EnAct" means Tasmania's Legislative Drafting and Automatic Consolidation System

"Gazette" means the Tasmanian Government Gazette

"instructing Agency" means the Agency responsible for a Bill

"instructing officer" means the person responsible for instructing OPC on a Bill

"instructions" means the instructions for a Bill

"legislative proposal" means a proposal for a Bill

http://www.dpac.tas.gov.au/divisions/opc/�


"LPA" means the Legislation Publication Act 1996

"Money Bill" means a Bill for the appropriation of money from the Consolidated Fund or for the imposition of a tax, rate, duty or impost

"OPC" means the Office of Parliamentary Counsel

"QA" means quality-assurance

"SGML" means the Standard Generalised Mark-up Language used for EnAct

"Standing Orders" means the Standing Orders of a House of Parliament

"Tasmanian Legislation Website" means the website of that name at http://www.thelaw.tas.gov.au

9.2 Schedule 2 – Providing Effective Instructions

PART 1

The effectiveness of instructions for a Bill will be enhanced if they –

• explain in plain English what is proposed and why it is proposed

• present a fully formed and coherent policy

• identify, in the case of an amending Bill, the provisions to be amended

• alert OPC to critical dates, priorities or commencement requirements

• alert OPC to any relevant political undertakings or elements of overarching government policies (like Tasmania Together)

• enclose any documents that are referred to in the instructions and/or are critical to a proper understanding of them

• say whether the proposal relates to, affects or potentially clashes with any other laws or Bills being drafted by the same Agency

• alert OPC to any necessary consequential amendments

• alert OPC to any necessary savings or transitional matters

• indicate whether there are any jurisdictional issues to consider (does the proposal relate to something done or being done by the Commonwealth or another State?)

• point out any cognate matters being or about to be drafted (is the proposal part of a package?)

• state who the instructing officer will be and their contact details, and, if necessary, alert OPC to any likely or proposed absences and identify a back-up instructing officer.

PART 2

The instructions for a Bill will be less effective if they –

• have not been proofread

http://www.thelaw.tas.gov.au/�


• do not follow a logical sequence

• are poorly laid out or written – eg in dense unbroken text

• are submitted in driblets or in inconsistent "blocks"

• fail to include any necessary attachments

• contain a hotchpotch of untidy documents – eg smudged photocopies, scribbled notes, blotchy recycled faxes, unformatted emails

• contain reams of prolix technical documents (in the expectation or hope that OPC will somehow be able to divine the policy from them)

• assume that OPC is as familiar with the policy background and technical issues as the instructing Agency

• seek amendments that are repugnant in style or content to the legislation proposed to be amended

• fail to identify necessary savings and transitional issues

• fail to identify necessary consequential amendments

• fail to give any or adequate guidance on offences and penalties, or propose offences and penalties that are unreasonable

• fail to note any changes or developments that are critical to the legislation – eg the amendment of corresponding interstate legislation, the reconstitution or renaming of a regulatory body, the issue of a new industry standard or code

• request OPC to adopt or adapt a law or policy of another jurisdiction heedless of whether the law or policy is suitable to, or even capable of being translated to, Tasmanian circumstances.

9.3 Schedule 3 – Facilitating the Drafting Process

PART 1

As well as giving OPC effective instructions, an Agency can facilitate the drafting of a Bill by –

• responding promptly to requests for further or better instructions

• turning drafts around quickly

• ensuring that any necessary consultation with other Agencies, officials or jurisdictions is carried out

• ensuring that steps have been taken to comply with any necessary constitutional requirements (such as arranging for a Governor's message for an appropriation)

• keeping an eye out for cognate matters from the same Agency.

PART 2

Agencies sometimes hinder the drafting of a Bill by doing one or more of the following:


• making major changes to the policy during the drafting process

• failing to invest the instructing officer with sufficient authority to clear drafts or confirm policy details, or repeatedly overriding advice or decisions given or made by the instructing officer

• changing instructing officers without reason

• appointing a team of instructing officers, each of whom has a different understanding of what needs to be done

• unnecessarily making a public commitment to an early and unrealistic implementation date without consulting OPC

• undertaking with third parties, and without consulting OPC, that the draft will be changed as regards matters (such as formatting) that are properly within the discretion of OPC

• sending the draft Bill out for consultation for an extended period without telling OPC what is happening in the matter

• leaving it to OPC to seek advice from the Solicitor-General on legal issues that, strictly, the Agency should have pursued

• failing to identify or instruct on consequential amendments or savings and transitional provisions.

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