Wednesday May 24, 2017 07:46 am 
 
THE PREPARATION OF DRAFTING INSTRUCTIONS
by
John F Wilson

~ INTRODUCTION
1.1 Law drafters draft Bills and statutory instruments (subsidiary legislation) in response to the requirements of a Government department. Some Bills might be simple and in standard form and can be drafted quite speedily. Others might involve major new legislative areas and take months or even years to draft.

1.2 Whatever the nature of the Bill or instrument, experience shows that the drafting of legislation can only be effectively done on the basis of written instructions from the Government department with policy responsibility for the subject. This means that once a decision to introduce legislation has been reached within a Ministry, the Secretary or Chief Executive Officer will need to produce written drafting instructions for the law drafter. These instructions should be clear and detailed enough to permit drafting to proceed with the minimum internal consultation and with as few changes as possible.

1.3 The purpose of this paper is to indicate the topics that should be covered in such instructions and the form they should take.

~ SCOPE OF THE INSTRUCTIONS
2.1 Drafting Instructions should explain the reasons for the proposals – i.e, the problem the proposed legislation is intended to solve, or benefits which it is intended to confer. They should set out the principal objectives of the proposed legislation, and how the objectives are to be achieved by legislation.

2.2 The instructions should mention any public response which has already been obtained in respect of the proposals, including consultation through e.g. the Law Reform Commission. The drafter is not asked to weigh the responses, but it is useful to know what the various views were.

2.3 Instructions should deal with the legal aspects of the proposal. They should tell the drafter what the present state of the law is; what the law is proposed to be; and why.
Thinking these issues through in order to write the instructions will often help to sharpen the issues from different points of view and create new ideas for better legislative solutions.

2.4 Drafting Instructions should deal with any legal issues known to the Ministry and if appropriate cite relevant case law e.g. on income tax liability in the case of a revenue statute. They should also mention any legal issues on which advice has been given or sought. Such advice should be obtained from the Solicitor General, Director of Public Prosecutions or other specialist section.

2.5 It is sometimes advisable that before preparing drafting instructions, instructing officials should have a meeting with the law drafter to establish a relationship and find out anything the drafter needs to know and be guided by the drafter’s advice.

~ CONTENTS OF THE INSTRUCTIONS
3.1 Drafting instructions should contain sufficient background information to enable the drafter to understand the problem or initiative. They should state how the problem has arisen and why the legislative solution is being proposed. This includes all issues the legislation is intended to deal with. Proposed legislation often has a history which contributes to the solution proposed by the instructing department. This is required by the drafter in the drafting process but care should be taken to distinguish between background information and the actual legislative proposal.

3.2 The principal objectives of the legislation should be clearly and fully stated. It is helpful for the drafter to know the purpose of the legislation and for the instructing department to think through its precise purpose, so that the drafter properly understands what the legislation is intended to achieve.

3.3 The instructions should include an accurate and comprehensive description, in straightforward language, of how the objectives of the legislation will be achieved. The instructions should provide a picture of how the legislation will actually work, describing the machinery envisaged and the necessary powers and duties.

3.4 Important issues of policy and administrative details should be included in the instructions. For example, if a power to make regulations is envisaged, the instructions should identify the kinds of things that are intended to be dealt with by the regulations. Instructing officers should not be reticent about pointing to gaps in the instructions or particular areas where advice is being sought or is required. It is better for the drafter to know of the uncertainties than for the department to cover them up.

3.5 If the draft legislation is to be the subject of a consultative process, the instructions should describe the nature of it and the projected timeframe.

3.6 The instructions should include information about the availability of all relevant legal opinions and legal research. Also relevant court decisions, or an indication of their availability, and legislation in other jurisdictions that might provide assistance.

3.7 The instructions should mention any Acts or regulations to be repealed. Also any transitional or savings provisions needed to deal with issues arising as a result of the repeal of one law and the enactment of new law.

3.8 The instructions should state the proposed timeframe i.e. the date for coming into force of all or part of the legislation, or information about how the law is to come into force.

3.9 The instructions should include information about relevant background material, for example -
(a) reports of committees, law reform bodies, or the like, on which the proposals are based;
(b) discussion documents, texts or articles;
(c) whether other departments and agencies are affected by the proposals. The instructions should indicate if there have been consultations and note any outstanding issues.
(d) areas of concern on which the advice of the law drafter is requested;
(e) the name and contact information for the senior official responsible for giving instructions and answering questions.

(Note - A draft Bill is NOT adequate as Drafting Instructions)

~ CONTENTS OF DRAFTING INSTRUCTIONS

Drafting instructions should -
(a) state clearly whether the Cabinet has given approval in principle for the drafting of the legislation;
(b) state clearly the principle objectives the legislation is intended to achieve;
(c) state clearly the anticipated implications of the legislation;
(d) contain all relevant information touching upon the legislation;
(e) contain appropriate references to decide cases which have bearing upon the legislation;
(f) state clearly any unresolved issues which have a bearing upon the matters that are to be included in the legislation, accompanied by any opinion, legal or otherwise, and the views of the sponsoring Ministry on the opinion;
(g) contain suggestions as to the penalties to be imposed for infringement of the provisions of the legislation;
(h) indicate whether an existing legislation might need amendment, or whether consideration should be given to that existing legislation;
(i) contain suggestions regarding commencement, and the reasons for suggesting different dates for different provisions;
(j) state clearly whether departments which may be affected by the legislation have been consulted, and the views of those departments;
(k) be accompanied by the Reports of Commissions of Inquiry or committees, the recommendations of which form the basis for the legislation or have a bearing on the legislation;
(l) contain suggestions for the transitional or temporary provisions, or for saving provisions.

~ FORMAT OF DRAFTING INSTRUCTIONS

Proposed Legislation:

Sponsoring Department/Ministry:

Department/Ministry contact officer (Name/Ph/Fax, etc):

Date of Cabinet approval in principle (Copy to be attached):

Main objectives of the proposed legislation:

Practical implications of the proposals:

Unresolved issues:

Legal advice received:

Level of penalties (if any):

Acts to be amended or repealed:

Transitional or saving provisions:

Proposed commencement date:

Other Departments consulted:

Other matters (including relevant background information, reports, etc):

Proposed timetable.

 

Design: 4sites