Part 1: Has sufficient time and consideration been given to the preparation of the legislation?

Part 2: Have departmental lawyers been fully involved?

Part 3: Has the drafter fulfilled his or her role?

Part 4: Is the legislation understandable and accessible?

Legislation affects individuals, corporations, and organisations in society in different ways. For example, criminal legislation restricts certain kinds of behaviour, company and commercial legislation regulates the conduct of business, tax legislation is the mechanism for obtaining revenue to provide government and public services, social welfare legislation allocates resources, resource management legislation controls the use of land and other natural resources.

If rights conferred by legislation are to be exercised and if the obligations it imposes are to be complied with, they must be stated in terms that those to whom they apply can understand them, that is, so that they know what their rights and obligations are. The rule of law as the foundation of democratic society requires good quality legislation. Good quality legislation is understandable and accessible. Poor quality legislation is often neither, and has economic and social costs.

The Parliamentary Counsel Office is responsible under the Statutes Drafting and Compilation Act 1920 for drafting all government Bills (other than tax Bills) and statutory regulations. Tax Bills are drafted in the drafting unit of the Inland Revenue Department. The drafting of legislation is a complex process that involves extensive interaction between drafter and departmental officials. Good quality legislation is the result of a team effort.

Departmental officials involved in the development of policy that is to be embodied in legislation must ensure that the policy is well thought out, coherent, consistent, and workable. They need to consider not just the broad policy objectives, but also the details of its implementation.

It is important to involve the department's own lawyers early in the process. They are familiar with legislation. They can assist in the design of a sound legislative scheme and identify the issues that have to be addressed as well as potential problem areas. One of their principal functions is to provide drafting instructions. To do this effectively, they need to have a thorough understanding of the policy underlying the legislation, what the legislation is intended to do, and how it will work.

Enacting statute law is the most important activity Parliament undertakes. Making subordinate legislation is one of the most important activities the Executive undertakes. They both depend on the quality of the work of departmental officials and drafters.

It is important to set realistic timetables for making the policy decisions that will constitute the basis of legislation, for providing good drafting instructions, and for the drafting process. Legislation that has been frequently amended is often the result of poorly thought out policy decisions and insufficient time for drafting. The phrase "the devil is in the detail" is as true of legislation as it is of the fine print of many commercial and consumer contracts. Lack of time spent on getting the detailed provisions of legislation right can be costly both for the Government that promotes it and users.

High quality legislation:

• endures

• does not need frequent amending

• gives effect to the Government's policies

• reduces fiscal risks to the Government

• avoids the courts having to decide what it means

• reduces compliance costs for users

• limits the scope for avoidance.

Time and care should be taken in developing the policy that is to be incorporated in legislation to ensure that it is coherent, consistent, and workable. Ensure that the detailed machinery and other provisions necessary for the proposed legislation are properly worked out. Making sure this is done in the developmental stage will result in the legislation being produced more quickly.

Departmental lawyers should be brought into the policy development process as early as possible. They have a significant role to play in translating policy into legislation but, to be effective, they need to understand all aspects of it. Parliamentary Counsel can also be asked for advice about the design of a legislative scheme and can assist in the early stages of its development before drafting begins.

A realistic timetable should be allowed for the drafting of the legislation.

Legislation should give effect to policy objectives in a way that will not cause unnecessary difficulties or complications for those who have to comply, and will not require recourse to the courts to resolve ambiguity, internal inconsistency, or conflict with other legislation or the common law.

Departmental lawyers play a key role in producing good quality legislation. The departmental lawyer is usually responsible for preparing drafting instructions, working with the drafter to produce a draft Bill or set of regulations, advising both the select committee of the House and the responsible Minister during the passage of a Bill, and providing advice to departmental officials about the implementation of the legislation when it has been enacted or made. In some instances, this work may undertaken by other officials but the role and responsibilities are nevertheless the same.

The departmental lawyer's job is to translate particular political and administrative policy into drafting instructions. To do this, the lawyer needs to have a thorough understanding of the overall policy as well as the administrative mechanisms that will be needed in the legislation to carry it into effect. He or she will also need to know how the proposal fits into the general body of law. In particular, what other legislation will affect the proposed legislation, eg Official Information Act 1982, Public Finance Act 1989, New Zealand Bill of Rights Act 1990, Privacy Act 1993, and how the common law may apply, eg the prohibition against self-incrimination or the liability in tort for the actions of officials.

The process of preparing drafting instructions involves:

• identifying the overall purpose, objective, or philosophy behind the legislative proposal

• identifying the main or basic concepts

• identifying the main rules or objectives

• identifying the ancillary rules or objectives

• working out how the main and ancillary rules or objectives work together (are they consistent and compatible with each other?)

• reviewing the structure of rules or objectives to see whether it is complete

• considering whether any of the rules or objectives should be implemented in subordinate legislation.

The preparation of good drafting instructions takes time. It may be tempting to send the drafter a copy of a Cabinet decision that records general policy decisions, a submission to a Cabinet Committee, or some background papers and leave it to the drafter to try and work out what is required. By itself, that will not aid the drafter and may simply delay the production of the legislation.

The constituents of good instructions are set out in Appendix 1.

In addition to preparing drafting instructions, the departmental lawyer must:

• explain any aspects of the instructions

• respond to issues raised by the drafter

• read the drafts prepared by the drafter carefully

• check them for consistency

• test the draft against scenarios to make sure it is robust and will achieve its objective

• consider, from the standpoint of the user, whether the draft is clear and understandable

• provide comments on drafts promptly.

In the drafting of large or complex legislation, it is common for many drafts to be produced. Progress towards completing the drafting of legislation can be incremental as each revision seeks to improve on or refine the previous draft. The process of checking and providing comments should be repeated with each new draft.

The publication A Guide to Working with the Parliamentary Counsel Office contains information about the respective roles of instructor and drafter and about the processes involved in drafting legislation. Departments have copies of this publication. Copies may be obtained from the Parliamentary Counsel Office or via the Internet at www.pco.parliament.govt.nz.

The departmental lawyer should have a thorough grasp of the broad policy objectives of the proposed legislation as well as of the detailed administrative, technical, and mechanical aspects.

The departmental lawyer should aim to provide comprehensive drafting instructions that comply with the criteria set out in Appendix 1.

Drafting legislation is a collaborative undertaking. Good legislation is the product of a team effort. Each draft of legislation should be read critically by the departmental lawyer to ensure it -

• is technically sound

• will give effect to the desired policy

• is internally consistent

• is compatible with the general body of statute and case law

• will be clear and understandable to users.

Legislative drafting is not just a technical exercise. A drafter is counsel to the Government in its legislative capacity. He or she must work in close collaboration with the instructing department and ensure that, so far as possible, legislation is based on sound legal principles, gives effect to the intended policy, and is as clear and understandable as practicable.

Legislative drafters provide a specialist form of legal service. The relationship between drafter and instructing department is similar to that between solicitor and client. The drafter must provide advice and drafting services in a professional and impartial manner. It is not the drafter's role to push through whatever an instructing department wants at all costs. On occasions drafters have to speak the unpalatable truth or expose the weakness in a legislative scheme. This does not always make them popular with Ministers or policy-makers, but it is a necessary part of their job.

The drafter has a wider responsibility to ensure that, in the public interest, legislation as finally enacted by Parliament or made by the Executive -

• complies with fundamental legal principles

• complies with the Guidelines

• is workable and effective

• is clear and unambiguous

• will withstand challenge or adverse criticism in the Courts

• does not impose unnecessary or unreasonable compliance costs.

Typically, the drafter's work involves -

• receiving and reviewing instructions from the instructing department

• raising issues with the instructing department that arise out of the instructions or seeking clarification of matters

• producing drafts that are clearly drafted and that give effect to the policy intent

• devising solutions to problems that arise during the drafting process

• assisting in resolving conflicts between departments over the policy or provisions in a draft

• in the case of Bills, drafting amendments for Select Committees and during the Committee of the Whole stage and ensuring that the assent copies are completely accurate and incorporate changes made during the parliamentary process

• in the case of statutory regulations, certifying to the responsible Minister that the regulations are in order.

Drafting involves mastering the policy and legal background of the proposal and dealing with the relationship with other legislation and the common law. Importantly, it involves working out a structure for a Bill or regulations that is coherent and logical. A sensible structure will aid readability and understanding just as will the use of clear language. Depending on the type of legislation, the drafter should consider whether readers will be assisted by including an outline Part that gives an overview of the Bill or regulations. In some cases, it may be appropriate to include examples, either separately or as part of the text of a provision, of how particular or complex provisions will operate. The drafter may wish to discuss these matters with the instructing department and obtain its views.

It is the drafter who has ultimate responsibility for the way a Bill or regulations are drafted and for ensuring that legislation will be effective and clear. Drafts will be reviewed within the Parliamentary Counsel Office by another drafter as part of the Office's quality assurance process.

The drafting of legislation is affected by a number of other matters designed to ensure consistency across the statute book. They include -

• the format or design of Acts of Parliament and statutory regulations, that is, physical layout, typeface, and size of text

• the Standing Orders of the House of Representatives

• drafting practices and conventions.

The publication A Guide to Working with the Parliamentary Counsel Office should be referred to for a more detailed discussion of the role of the drafter and the drafting process.

In order to draft workable and effective legislation, the drafter must understand the policy objectives and the administrative and other requirements that it will be necessary to include in the legislation to implement the policy.

The drafter should work constructively with his or her instructors, seek clarification where necessary, endeavour to devise solutions to problems that arise during the drafting process, and assist in resolving differences of opinion among departments.

At the same time, however, if a drafter considers that the policy or some aspect of it does not comply with legal principle, is or may be unworkable, or that he or she is instructed to draft something will not be understandable and accessible, he or she must raise the matter with the instructing department and, if necessary, with the responsible Minister and the Attorney-General.

Finally, it is the drafter's responsibility to ensure that a draft is effective and clear.

For legislation to command public acceptance it must meet certain standards. It must be developed in accordance with proper processes, reflect legal principle, be technically effective, and be able to be understood by those to whom it applies. Other Chapters in the Guidelines address many of these issues. This Chapter focuses on the characteristics of good legislation from the standpoint of understanding and accessibility.

A difficult issue frequently faced in the development of legislation is the identity of the users or audience of the legislation. Legislation that deals with complex or technical matters will inevitably be difficult to understand for those who do not have a background in the subject matter. For example, commercial legislation will in many instances demand that the reader have some understanding of the business environment. Revenue legislation may require knowledge of accounting concepts, such as capital, income, and depreciation. A reference in a statute to the law of torts assumes that the reader is familiar with that particular branch of the law.

Judgments have to be made continually as to how legislation should be drafted to ensure that persons who will be affected by it will best understand it. There are no simple answers to this dilemma. A lawyer skilled in the law of personal property securities or company law may find provisions included in legislation dealing with these topics and designed to assist readers with less expertise unnecessary. A balance has to be struck and it is ultimately a matter of judgment for the instructor and drafter.

Legislation must also be technically precise and effective. Precision and effectiveness cannot be compromised in the interests of clarity. Over simplification can result in legislation failing to have its intended result. Again, a balance has to be achieved and that is not always easy.

Legislation is not meant just for lawyers and judges. It is used and applied everyday by persons with no legal training. Members of Parliament need to understand the statutes that Parliament enacts and the Executive has to understand the statutory regulations it makes. Participation in the law-making process demands that the public understands the implications of proposed legislation at both the policy level and its implementation.

Basic rules or principles applying to a well drafted piece of legislation can be stated with some assurance. It needs to be remembered, however, that drafting practices are constantly changing as drafters seek better ways of communicating.

The Law Commission's Report 35 Legislation Manual: Structure and Style contains useful material on matters of drafting style. The Parliamentary Counsel Office has incorporated material from this report in its own drafting manual and adopts many of the drafting practices and policies recommended by the Commission.

All legislation, whether primary or secondary, should seek to comply with the following criteria.

Good organisation of material.

• Material should be arranged in a logical order.

• General provisions should be followed by specific provisions and exceptions.

• Provisions that relate to the same subject should be grouped together.

• Provisions should be arranged in temporal sequence.

• Provisions that are significant should come before provisions of lesser importance.

• Clauses should be limited in the number of subclauses they contain. As a general rule, a clause should have no more than 6 subclauses.

• Division into Parts and the use of headings and subheadings breaks up a long document and aids comprehension.

• Clauses should be numbered.

Use of clear language

• The drafting should be as simple as possible. It should also be precise so that the document has its intended effect. The instrument must be workable but at the same time drafted in language and in a style that ensures it can be readily understood by its readers. Clarity of drafting should encourage clarity and simplicity of policy.

• Sentences should be short and well structured.

• Sentences should not contain excessive embedded and relative clauses.

• The active rather than the passive voice should be used.

• Archaic language and expressions should be avoided.

• Gender neutral language should be used.

• The drafting should be consistent. Words should be used in the same sense. If the sense is changed, this should be made clear.

• Overuse of capitals should be avoided.

• Propositions should be expressed in positive rather than negative terms.

• Similar propositions should be expressed in similar language.

• Repetition and unnecessary words should be avoided.

• Excessive cross-references and qualifications should also be avoided.

• Expressions in common or everyday use should be used wherever possible. Jargon should be avoided. However, technical terms will be necessary in legislation that deals with technical subject matter.

• Paragraphs and subparagraphs can break up blocks of text but multiple paragraphs and subparagraphs, while having the appearance of clarity, can often involve several ideas or concepts and be difficult to understand.

The use of outline Parts that give a reader an overview of an Act and that explain the scheme and key concepts in it may assist users. Graphics and diagrams that explain procedures and processes may also be useful aids. Including examples to explain the operation of complex or technical definitions or provisions may also be appropriate. The Interpretation Act 1999 now expressly recognises that this material may be referred to in ascertaining the meaning of legislation.