The Importance of Legislative Drafters – Challenges Presented by Recent Developments in the Commonwealth Jurisdiction

THE IMPORTANCE OF LEGISLATIVE DRAFTERS – CHALLENGES PRESENTED BY RECENT DEVELOPMENTS IN THE COMMONWEALTH JURISDICTION

Stephen Argument*

This paper discusses the important role of drafters of delegated (or subordinate) legislation[1] in the Commonwealth jurisdiction. The discussion is set against some recent developments in the Commonwealth jurisdiction and the challenges that those
developments present to the role that legislative drafters play in the making (and parliamentary scrutiny) of delegated legislation.

The use of ’legislative rules’ in preference to regulations

Early in 2014, the Minister for Industry made the Australian Jobs (Australian Industry Participation) Rule 2014.The Rule was made under section
128 of the Australian Jobs Act 2013 (Cth).It was first considered by the Senate Standing Committee on Regulations and Ordinances (Senate Committee)
in the context of its Delegated legislation monitor No 2 of 2014. The Committee stated:

Prescribing of matters by ‘legislative rules’

The committee notes that this instrument relies on section 128 of the Australian Jobs Act 2013, which allows for various matters in relation to that Act
to be prescribed, by the minister, by ‘legislative rules’. While the explanatory statement (ES) for the instrument does not address the issue, as far
as the committee can ascertain this is a novel approach to the prescribing of matters in Commonwealth legislation, insofar as Acts usually provide
for matters to be prescribed, by the Governor-General, by ‘regulation’. The committee notes that the latter approach to prescribing matters is consistent
with the definition in section 2B of the Acts Interpretation Act 1901, which provides that, in any Act, ‘prescribed’ means ‘prescribed by the Act or
by regulations under the Act’. This being so, the committee is uncertain as to whether the prescription of matters by ‘legislative rules’ is also consistent
with the Acts Interpretation Act 1901.

More generally, the committee notes that the making of regulations is subject to the drafting and approval requirements attached to the Office of Parliamentary
Counsel and Executive Council, respectively. To the extent that these requirements may be taken as an additional layer of scrutiny in the prescribing
of matters by regulation, it is not clear whether these requirements will also apply to legislative rules and, if not, what the ramifications may be
for both the quality of, and level of scrutiny applied to, such instruments. The committee therefore requests further information from the Minister for Industry.
[2]

[emphasis added]

Since 1904, when a definition of ‘prescribed’ was introduced into the Acts Interpretation Act 1901 (Cth), Australian legislation has operated
on the basis that Acts allowed for certain things to be ‘prescribed’ by regulations made under the Act.Indeed, the use of ‘prescribed’ was commonly
read as meaning ‘prescribed by the regulations’. Regulations have always been drafted by the relevant Commonwealth drafting office[3] at no charge to the instructing agency

The First Parliamentary Counsel’s (FPC’s) first response to the Senate Committee’s concerns

Not novel

The Minister for Industry responded to the Senate Committee’s initial comment in a letter dated 18 March 2014.The letter included a detailed response from
the First Parliamentary Counsel (FPC), Mr Peter Quiggin PSM.[4]Among
other things, the FPC letter took issue with the characterisation of the new approach as ‘novel’ and referred to various previous Acts that, in his
view, demonstrated that the approach was ‘not novel’.[5]

Relevance of the definition of ‘prescribed’ in the Acts Interpretation Act

On the issue of the definition of ‘prescribed’, the FPC response stated:[6]

There is no legislative principle or practice that requires the word ‘prescribe’ to be used only in relation to regulations.The definition of ‘prescribed’
in section 2B of the Acts Interpretation Act 1901 (the AIA) is a facilitative definition that was intended to assist in the shortening
of Acts. However, current legislative drafting practice is to rely on the definition sparingly (even for regulations) because the definition appears
not to be widely known by users of legislation, it has no application to the making of instruments apart from regulations and can be uncertain in its
application. Under the definition matters can be prescribed by the Act itself or by regulations under the Act.

Thus, prescription of matters by legislative rules is not inconsistent with the AIA. The definition simply does not apply to rules or other types
of instruments other than regulations.

Resources issue

Importantly, the FPC response also stated:[7]

Since the transfer of a subordinate legislation drafting function from the Attorney-General’s Department to OPC in 2012, OPC has reviewed the cases in
which it is appropriate to use legislative instruments (as distinct from regulations).OPC does not have the resources to draft all Commonwealth subordinate
legislation, nor is it appropriate to do so.

The FPC response went on to say:[8]

OPC’s view is that some types of provisions should be included in regulations and be drafted by OPC as the Commonwealth’s principal drafting office, unless
there is a strong justification for prescribing those provisions in another type of legislative instrument. These include the following types of provisions:

(a)offence provisions;

(b) powers of arrest or detention;

(c)entry provisions;

(d)search provisions; and

(e)seizure provisions.

Then, the FPC response stated:[9]

OPC’s view is that it should use its limited resources to best effect and focus its resources in drafting subordinate legislation that would most benefit
from its drafting expertise. Further details about OPC’s approach are set out in Drafting Direction 3.8, which is available on OPC’s website at
https://www.opc.gov.au/about/draft_directions.htm.

The FPC response indicates that he is seeking to do less drafting within his office because he has a resources issue. But the unavoidable effect of what
he is doing is to push additional work on to agencies that similarly have resources issue, because of budget cuts across the Commonwealth public service.
This must result in a negative effect on the drafting of delegated legislation in the Commonwealth.

The FPC’s responsibilities under the Legislative Instruments Act

After referring to a series of recent Acts in which the legislative rules approach had been used, the FPC stated:[10]

OPC’s approach is consistent with the Legislative Instruments Act 2003 (the LIA) and the First Parliamentary Counsel’s functions and
responsibilities under the LIA. Under the LIA all disallowable legislative instruments are subject to the same high-level Parliamentary scrutiny.
Also, under the LIA the First Parliamentary Counsel’s responsibility to encourage high standards in drafting of legislative instruments applies
to all legislative instruments and not just regulations.

Without mentioning the provision specifically, the FPC is presumably referring to his obligations under section 16 of the Legislative Instruments Act 2003 (Cth) which provides:

16Measures to achieve high drafting standards for legislative instruments 

(1)To encourage high standards in the drafting of legislative instruments, the First Parliamentary Counsel must cause steps to be taken
to promote the legal effectiveness, clarity, and intelligibility to anticipated users, of legislative instruments.

(2) The steps referred to in subsection (1) may include, but are not limited to:

(a) undertaking or supervising the drafting of legislative instruments; and

(b) scrutinising preliminary drafts of legislative instruments; and

(c) providing advice concerning the drafting of legislative instruments; and

(d) providing training in drafting and matters related to drafting to officers and employees of Departments or other agencies; and

(e) arranging the temporary secondment to Departments or other agencies of APS employees performing duties in the Office of Parliamentary Counsel; and

(f) providing drafting precedents to officers and employees of Departments or other agencies.

(3) The First Parliamentary Counsel must also cause steps to be taken:

(a) to prevent the inappropriate use of gender‑specific language in legislative instruments; and

(b) to advise rule‑makers of legislative instruments that have already been made if those legislative instruments make inappropriate use of such language;
and

(c) to notify both Houses of the Parliament about any occasion when a rule‑maker is advised under paragraph (b).

His response concludes as follows:[11]

Whether particular legislative rules are drafted by OPC is a matter for agencies to choose. OPC will continue to be available, within the limits of its
available resources, to draft (or assist in the drafting of) legislative rules for agencies as required. In this respect legislative rules are in no
different position to other legislative instruments that are not required to be drafted by OPC.

The issues mentioned above set the framework for the discussion with the Senate Committee that followed.

The Senate Committee’s response

The Senate Committee responded to the FPC’s first response in its Delegated legislation monitor No 5 of 2014.

Not novel?

In response to the ‘not novel’ issue, the Senate Committee contrasted the approach taken in section 128 of the Australian Jobs Act 2013 (Cth)
with the ‘traditional’ approach in Australian legislation, under which regulation-making powers were set broadly, in terms of prescribing what was
‘required or permitted’ or ‘necessary or convenient’ for carrying out or giving effect to the Act, while the power to make non-regulations legislative
instruments was generally expressed by reference to specific functions. The Senate Committee stated:[12]

In the committee’s view, the broadly-construed regulation-making power may be contrasted with the usually more specific or constrained provisions allowing
for the making of other types of instruments. However, in the present case, section 128 of the Australian Jobs Act 2013 provides:

128The Minister may, by legislative instrument, make rules (legislative rules) prescribing matters:

(a)required or permitted by this Act to be prescribed by the legislative rules; or

(b)necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Further, the Australian Jobs Act 2013 does not contain a regulation-making power. The committee notes that the broadly-expressed power to make legislative rules in the Australian Jobs Act 2013 therefore effectively replaces the regulation-making power.
[emphasis added]

The fact that the Australian Jobs Act did not contain a regulation-making power was a significant issue for the Senate Committee. It went on to state:
[13]

With this context, the committee notes that many of the examples referred to by FPC appear to be distinguishable from this broad power to make legislative
rules in the absence of a regulation-making power. A number of these may be distinguished on the basis that:

• the relevant instrument-making power is not expressed in as broad a manner in which the legislative-rule making power is expressed in the present case
  (for example, they are limited to matters ‘required or permitted’ by the Act, but not to things ‘necessary or convenient’);
• the rule-making power is complemented by the inclusion of a broadly defined regulation-making power expressed in the usual terms; and
• the rule-making power is constrained by being permitted only in relation to specific parts or subdivisions of the relevant Act (or to specific items).
• However, with the exception of the Income Tax Assessment Act 1997, the committee notes that seven of the remaining eight examples listed in
  paragraph 12 provide analogous powers to the legislative rule-making power in the Australian Jobs Act 2013. That is, the following Acts
  provide for a broad rule-making power that appears to take the place of a general power to make regulations:
• Asbestos Safety and Eradication Agency Act 2013;
• Australia Council Act 2013;
• Australian Jobs Act 2013;
• International Interests in Mobile Equipment (Cape Town Convention) Act 2013;
• Public Governance, Performance and Accountability Act 2013;
• Public Interest Disclosure Act 2013; and
• Sugar Research and Development Services Act 2013.

The committee notes that these Acts are all dated 2013 and, according to the FPC’s advice, were drafted ‘since the transfer of the subordinate legislation
drafting function to the Office of Parliamentary Counsel in2012’.

The Senate Committee also picked up on the FPC’s reference to Drafting Direction 3.8:

In light of the above, the committee considers that FPC’s advice tends to confirm the view that the provision for a broadly-expressed power to make legislative
rules in place of the regulation-making power is a novel approach, employed in the drafting of Acts only since 2013. Further, the committee notes that on 6 March 2014 (subsequent to the committee’s initial comments on this matter), OPC circulated revised Drafting Direction No 3.8, which included the addition of extensive instruction on the use of ‘general instrument-making powers’ of this kind.
The committee notes that Drafting Direction No 3.8 appears to confirm the inclusion of such powers in delegated legislation as a novel approach (emphasis
added). It states:

It has long been the practice to include general regulation making powers in Acts.

More recently, an approach has been taken to adapt that practice for other legislative instruments.[emphasis added]

The Senate Committee then turned to the fact that, in its assessment, the inclusion of a general rule-making power in Acts was something of a surprise.
The Senate Committee stated:[14]

With the exception of the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the committee is not aware of any reference
to the inclusion of a general rule-making power in place of the regulation-making power in the explanatory memorandums (EMs) for these Acts. The EM
for the PGPA Act stated (p 58):

Using rules, rather than regulations, as the form of legislative instrument is consistent with current drafting practice. The Office of Parliamentary Counsel
reserves the use of regulations to a limited range of matters that are more appropriately dealt with in regulations made by the Governor-General than
in an instrument made by some other person. Matters in this category include offence provisions, powers of arrest or detention, entry provisions and
search or seizure provisions. The rules will be legislative instruments subject to disallowance by Parliament and will sunset under the provisions
of the LI Act.

In the committee’s view, the EMs for these Acts did not provide a sufficient opportunity for the Parliament to identify and consider the potential consequences
of the introduction of a general rule-making power in place of the regulation-making power. The committee’s current inquiries seek to provide that
opportunity.

While the committee acknowledges that agencies must seek to best use often limited resources, the committee considers that what appears to be a potentially
significant change or addition to the use of the general regulation-making power should not be effected solely through agency policy.

The new approach had not previously been directly raised with the Senate in any meaningful way. In all the circumstances, this would appear to have been
a less-than-optimal means of introducing the new approach.

Resources issue

On the ‘resources’ issue, the Senate Committee sought to pursue with the FPC the particular issue of the likely effect of the new approach on the quality
of drafting. The Senate Committee stated:[15]

Ramifications for the quality and scrutiny of legislative rules

The committee notes that the broader thrust of its comments on the prescribing of matters by the general instrument-making power relate to the ramifications
of this approach for the quality and level of executive and Parliamentary scrutiny applied to such instruments.

FPC’s advice notes that instruments made under the general instrument-making making power may now be drafted by agencies (unlike regulations, which are
required to be drafted by OPC). OPC may, however, draft or assist agencies ‘within the limits of available resources’. In the committee’s experience,
regulations are characterised by the highest drafting standards, and it seems unlikely that agencies are equipped to achieve the same standards in
the drafting of instruments under the general instrument-making power. In particular, the committee notes that regulations may be lengthy and complex,
covering a range of matters as permitted by the general power on which they are based. Given this, the Parliament’s ability to scrutinise instruments
that are of a similar character, but not drafted, and subject to only limited oversight, by OPC, may be adversely affected where the highest standards
are not maintained.

The Senate Committee then sought the Minister for Industry’s advice in relation to the following questions:[16]

Regarding FPC’s advice that ‘some types of provisions should be included in regulations and be drafted by OPC [without] strong justification for prescribing
those provisions in another type of legislative instrument’, in the event that such provisions are required for the Acts listed on page 3 above, how
will the required measures be introduced in the absence of a regulation-making power?

Will the drafting of complex and lengthy instruments by departments and agencies based on the general instrument-making power achieve the same levels of
quality and accuracy as achieved by OPC in its drafting of regulations?

What is the minister’s understanding of the fundamental or original reason for requiring regulations to be drafted by OPC and made by the Governor-General?
Do such requirements ensure higher standards in such instruments by mandating greater executive responsibility and scrutiny?

The FPC’s second response to the Senate Committee’s concerns

The Minister for Industry responded to the Senate Committee in a letter

dated 5 June 2014.[17]Again,
the response included a detailed response from the FPC. In addition, the Minister’s covering letter opened up a new issue. The Minister stated:

I am concerned that the Rule, which serves an essential function has become the vehicle by which the Committee is exploring OPC’s drafting practice of
including a rule-making power in primary legislation as opposed to the more traditional regulation-making power. In particular, I note that the Committee
has taken the step of having moved a notice of motion to disallow the Rule, notwithstanding the Committee’s queries do not relate to the substance
of the Rule itself, but rather to the underlying power authorising the making of the instrument.

The Senate Committee had moved a ‘protective’ notice of motion in relation to the Rule.[18]

The Senate Committee’s response to the FPC’s second response

In Delegated legislation monitor No 6 of 2014, the Senate Committee responded to the Minister’s comment (at pages 10 to 11):

In relation to the minister’s view that the matters in question ‘cannot be resolved in the context of scrutiny of this rule’, the committee notes that
the question of whether the Parliament regards the new general rule-making power as appropriate to the exercise of the Parliament’s delegated legislative
powers goes fundamentally to the committee’s institutional role and the principles which inform its operation.

The delegation of the Parliament’s legislative power to executive government involves a ‘considerable violation of the principle of separation of powers,
the principle that laws should be made by the elected representatives of the people in Parliament and not by the executive government’. This principle
is effectively preserved through the committee’s work scrutinising delegated legislation, and the power of the Parliament to disallow delegated legislation.

‘Tied work’

In the second response, the FPC acknowledges that the drafting of legislative instruments that are to be made or approved by the Governor-General are,
under the Legal Services Directions 2005, ‘tied work’. This means (in essence) that the drafting can only be undertaken by the OPC (see paragraph
7 of the second response).Though not explicitly acknowledged in the FPC’s second response, the work in question must be carried out without cost to
the instructing agency.

The second response goes on to state (at paragraph 11):

The reason that the drafting of these instruments is tied to OPC under the Legal Services Directions is that they are made or approved by the Governor-General
and not by another rule-maker, rather than because of their content.

Section 16 of the Legislative Instruments Act

In the second response, the FPC specifically refers to his responsibilities under section 16 of the Legislative Instruments Act. He then goes
on to state (at paragraphs 15 and 16):

I am also required to manage the affairs of OPC in a way that promotes the proper use of the Commonwealth resources that OPC is allocated (see section
44 of the Financial Management and Accountability Act 1997), including resources allocated to the drafting of subordinate legislation.

I consider that [Drafting Direction] 3.8 is an appropriate response to these responsibilities in relation to the drafting of Commonwealth subordinate legislation.

Volume of legislative instruments

At paragraph 17 of the second response, the FPC gives some figures in relation to the volume of legislative instruments.However, he concludes by stating:
[19]

As mentioned in my previous letter, OPC does not have the resources to draft all Commonwealth subordinate legislation, nor is it appropriate for it to
do so.

Division of material between regulations and legislative instruments

At paragraphs 24 to 25 of the second response, the FPC addresses the issue of the division of material between regulations and legislative instruments,
stating:

Before the issue of [Drafting Direction] 3.8, the division of material between regulations and other legislative instruments seems largely to have been
decided without consideration of the nature of the material itself. This has resulted in the inclusion of inappropriate material in regulations and
the inclusion of material that should have been professionally drafted in other instruments.

The response goes on:

…[Drafting Direction] 3.8 addresses this matter by outlining the material that should (in the absence of a strong justification to the contrary)
be included in regulations and so drafted by OPC and considered by the Federal Executive Council. I would welcome any views that the Committee may
have on the appropriate division of material between regulations and other legislative instruments and would be happy to review [Drafting Direction]
3.8 to take into account any views the Committee may have.

Quality and accuracy of drafting of instruments not tied to the OPC

The second response states:[20]

I remain of the view that OPC’s drafting approach to instrument-making powers is measured and appropriate and will, over time, raise standards in the drafting
of legislative instruments and support the ability of the executive and Parliament to scrutinise instruments appropriately.

… The quality and accuracy of the drafting of an instrument not tied to OPC under the Legal Services Directions is a matter for the responsible
agency (and the rule-maker).As discussed above, in my view, the approach taken in [Drafting Direction] 3.8 will contribute to raise the standard of
legislative instruments overall.

No information is provided in the second response as to how this raising of standards is to be achieved.

The Senate Committee’s response to the FPC’s second response

The Senate Committee responded to the second FPC response in its Delegated legislation monitor No 6 of 2014.[21]The
Senate Committee stated:[22]

The committee notes the advice of FPC that, where provisions that should continue to be included in regulations (according to the recent OPC drafting directions
relating to the use of legislative rules) are required, ‘it would be necessary to amend the Act to include a regulation-making power that expressly
authorises the provisions’.

However, the committee notes that there is no absolute requirement for such matters to be included in regulations, and it is unclear how, and by whom,
decisions will be made regarding whether or not there is a ‘strong justification’ for not including such matters in regulations. The committee notes
that the stated effect of implementing legislative rules is to make agencies and departments responsible for the drafting of such instruments; and
that FPC has previously advised that OPC will draft or assist agencies only ‘within the limits of available resources’. The committee considers that,
on its face, the new arrangement carries a significant risk that drafting standards may suffer, and that matters will be improperly included in rules.
This is particularly so given FPC’s advice that ‘requiring regulations to be drafted by OPC and made by the Governor-General provides for higher drafting
standards and an additional level of executive scrutiny’.

The committee notes that, to the extent that the implementation of the general rule-making power leads to a diminution in the quality of drafting standards,
there is likely to be a corresponding increase in the level of scrutiny required to be applied by the Parliament. Such an outcome would effectively
fracture the longstanding requirement of direct executive control of, and responsibility for, the standards of drafting in relation to the exercise
of the broadly expressed power delegated by the Parliament to the executive.

The FPC’s third respo