APPENDIX B
THE DEPARTMENTAL SOLICITOR AND THE PARLIAMENTARY COUNSEL OFFICE
(Extracts from a paper by Mr W Iles QC CMG, Chief Parliamentary Counsel)
1 The prime role of a departmental solicitor in relation to the Parliamentary Counsel Office is to give instructions to that Office for the drafting of Bills and regulations.
2 In addition, the departmental solicitor usually
(a) participates in conferences on the draft Bill or the draft regulations:
(b) considers and comments on draft Bills and draft regulations as they are produced by Parliamentary Counsel:
(c)acts as a coordinator of departmental comments on the draft Bill or draft regulations:
(d) settles the form of the draft Bill or the draft regulations with Parliamentary Counsel:
(e) in the case of a draft Bill,
(i) attends at the Cabinet Legislation Committee as one of the Departmental team when the draft Bill is considered by that Committee:
(ii) participates in the preparation of the Minister's speech notes:
(iii) attends in the House on the introduction of the Bill:
(iv) attends the hearings of the select committee:
(v) assists in the preparation of the departmental report to the select committee:
(vi) settles with Parliamentary Counsel the form of any amendments required by the select committee:
(vii) attends in the House on the second reading of the Bill:
(viii) attends in the House on the Committee stage of the Bill and settles with Parliamentary Counsel the form of any amendments required by the Minister to be made in the Committee of the Whole. (This may require the departmental solicitor to give instructions to Parliamentary Counsel for the preparation of a Supplementary Order Paper or to participate on the bench in the House on the preparation of an instant amendment.)
(f) establishes or maintains a good relationship both with officials of the departmental solicitor's own department and Parliamentary Counsel with a view to participating in the preparation of the Bill or regulations as a member of an effective and harmonious team:
(g) gives advance notice to Parliamentary Counsel of any proposed Bill or proposed regulations where the demands placed on Parliamentary Counsel either by the content of the Bill or by time or by both make advance notice necessary or appropriate. Parliamentary Counsel specialise to some degree and a little advance notice may ensure that the appropriate specialist is available.
The giving of instructions
3 A Department may give instructions to the Parliamentary Counsel Office only if
(a) in the case of a Bill, the Cabinet Legislation Committee or Cabinet has approved the preparation of that Bill; or
(b) in the case of regulations, the Minister in charge of the department has authorised the preparation of the regulations.
Departmental drafts and the "pure" view
4 The "pure" view is that the instructions for the preparation of a Bill or regulations should be in the form of ordinary narrative prose and should not, in any circumstances, be in the form of a draft bill or draft regulations.
5 The situation in the New Zealand Parliamentary Counsel Office is that it has not been "pure" in this sense for many years. There is probably an historical reason for this. The Parliamentary Counsel Office used to draft all Bills but very few regulations. Regulations were drafted in the departments by the departmental solicitors and vetted by the Crown Law Office. This practice led to a variety of styles. In the 1950s the then Attorney-General became dissatisfied with this variety of styles and he directed that no regulations were to be submitted to Cabinet unless they had been drafted in the Parliamentary Counsel Office. The staff of the Parliamentary Counsel Office was not increased to take account of this influx of work and the departments had in any event been used to preparing drafts of their own regulations. In many cases they continued to send drafts of regulations to the Parliamentary Counsel Office.
6 Professor Elmer A Driedger has described in The Composition of Legislation (2nd ed rev 1976) xix to xx the problems that Parliamentary Counsel face on receiving instructions in the form of a draft Bill. Professor Driedger puts it this way:
If he receives a draft, he must construe and interpret what may be an imperfect statement, and he may misunderstand what is intended. A draftsman who is presented with a draft measure would not be discharging his duties if he assumed that a proper legislative plan had been conceived and that proper provisions had been chosen to carry it out; he cannot be expected to confine himself merely to a superficial examination of the outward form of the measure. The drafting of legislation does not consist in polishing what others have written ....
Even assuming that a perfect bill is submitted to the draftsman, he must still subject it to the complete drafting process, for how else can he discover that it is a perfect bill and satisfy himself that it will give legislative effect to the intended policy? Draft measures prepared by inexperienced persons are usually defective, and then the draftsman must spend much time in undoing what has been done. This is particularly awkward where the draft has been circulated and discussed before submission to the draftsman, because those who have seen it expect that the final draft will closely resemble it and will resist any attempts to alter its fundamental structure. "
7 The English pamphlet, The Preparation of Bills (1948), contains at p 8 the following pertinent comment:
Nothing is more hampering to the Parliamentary Counsel, when the drafting stage is reached, than to be obliged to build what is usually a complex structure round 1 sacred phrases' or forms of words which have become sacrosanct by reason of their having been agreed upon in Cabinet or in one of its committees. A still more serious objection to agreed form of words of this kind is that they often turn out to represent agreement upon words only, concealing the fact that no real compromise or decision has been reached between conflicting views upon some important question.
8 A particular problem that has arisen in New Zealand is where a department prepares its own draft and then agrees on its terms with an interested party.
9 If, as has happened, Parliamentary Counsel points out
(a) that part of the draft is nonsense; or
(b) that part of the draft, in the case of regulations, is ultra vires the empowering Act; or
(c) that one part of the draft contradicts another; or
(d) that part of the draft achieves the exact opposite of what the parties intended,
the department which prepared the draft may be embarrassed.
10 Despite these comments, departmental drafts, particularly of regulations, are a fact of life in New Zealand and, in some cases, departments have achieved a good standard. Accordingly it has to be the practice of the Parliamentary Counsel Office to reject instructions that are accompanied by a draft of the proposed Bill or a draft of the proposed regulations.
11 What needs to be remembered is that the submission of a draft Bill or draft regulations is not a substitute for proper instructions. Lengthy drafts accompanied by not one word of explanation concerning the purpose of the draft do not constitute proper instructions to the Parliamentary Counsel Office. They are usually returned to the department.
Proper instructions
12 This brings me to the question of what constitutes proper instructions. Proper instructions should
(a) in the case of a Bill, indicate that the drafting of the Bill ha been authorised by the Cabinet Legislation Committee or by the Cabinet or, in the case of regulations, indicate that the drafting of the regulations has been authorised by the Minister; in the case of regulations, the authority should preferably be a written authority signed by the Minister;
(b) indicate the principal objectives intended to be achieved by the Bill or regulations;
(c) contain all relevant background material relating to the proposals to be included in the Bill or regulations, including all known legal implications and difficulties;
(d) contain references to any relevant cases, whether or not they agree with the view favoured by the Department;
(e) be accompanied by copies of any relevant legal opinions that have been obtained, whether or not they agree with the view favoured by the Department;
(f) in the case of an amending Bill or amending regulations, deal separately with each proposed amendment;
(g) if any matters are unresolved, indicate what they are and when the additional instructions in relation to them are likely to be given;
(h) suggest the penalties to be imposed for any offence;
(i) indicate existing legislation that will require amendment or consideration to give effect to the proposal;
(j) indicate any known consequential amendment;
(k) indicate any transitional or savings provisions required;
(l) if the Bill or regulations are to come into force on a particular date, indicate that date and the reasons for choosing it;
(m) if the Bill or the regulations arise out of a report of a Commission or committee, either refer to the published report of that Commission or committee or, if it has not been published, supply a copy of it or of the relevant portions of it;
(n) if the Bill or the regulations impinge on the activities of another department, indicate the extent to which that department has been consulted;
(o) give the names of the departmental officers and the departmental solicitor who will be dealing with the matter.
13 Departmental solicitors should remember that Parliamentary Counsel not only have the function of drafting Government Bills and statutory regulations. They have in addition the function of drafting amendments to Government Bills during their passage through the House. Some departmental solicitors have, in making reports to select committees, included drafts of proposed amendments to Government Bills. They should not do this. They should instead instruct Parliamentary Counsel to prep are any amendments thought necessary.
14 As a general rule, a Bill is liable to be amended only when it is before a Select Committee or before the Committee of the Whole. Parliamentary Counsel always attend when a Bill is being deliberated on by a Select Committee or when it is being considered in the Committee of the Whole. Parliamentary Counsel attend only some of the hearings conducted by a select committee of the submissions made on a Bill. They do not usually attend at any other stages in the consideration of the Bill by Parliament.
Departmental Officers
15 The New South Wales instructions in relation to the drafting of Bills contains the following comments about departmental officers:
Departmental officers attending conferences for the settling of Bills should have the detailed knowledge, ability and authority to make decisions on most of the questions that inevitably arise in drafting. If their decisions are to be reviewed by superior departmental officers, their function becomes not much more than that of a messenger, and the drafting of the Bill is greatly delayed by the draftsman having to await confirmation of their highly tentative decisions. Perhaps even worse is for the draftsman's time to be wasted and the drafting of the Bill consequently delayed because 2 or more departmental officers attending a conference argue at length about the decision to be given on some question raised by the draftsman. A departmental officer attending on the settlement of a proposed amending bill should particularly have a detailed knowledge of the provisions and operation of the principal Act to be amended.
These comments apply with equal force in New Zealand. Continuity within a department is very important.
Prompt consideration of drafts
16 The New South Wales instructions contain the following warning about the prompt consideration by departmental officers of draft Bills:
Prompt consideration of these drafts should be given and the draftsman should be quickly advised of any alteration required. It should be realised that the draftsman is usually working on 3 or 4 bills at the same time and that, if queries raised by him or drafts prepared by him are not considered promptly when referred to the department concerned, the continuity of his consideration of the proposed bill is interrupted and subsequent delay occurs in picking up the threads.
This warning applies with equal force in New Zealand.
Estimates of time
17 Departmental instructions should not give estimates of the time that it will take to prepare a draft Bill or a draft set of regulations without consulting with the responsible Parliamentary Counsel in the Parliamentary Counsel Office. The time needed to prepare the draft may be much greater than the department expects, or the Parliamentary Counsel involved may be required to give priority to other Bills or regulations.
Collaboration
18 The best Bills and the best regulations result from proper collaboration between Parliamentary Counsel and officers of the sponsoring department.