The role of drafters of legislation

Ross Carter*

Ross Carter, Principal Parliamentary Counsel, Secretary of the Commonwealth Association of Legislative Counsel (CALC) 2015-2022, and author of Burrows and Carter – Statute Law in New Zealand (6th ed, LexisNexis NZ Ltd, 2021), discusses the work of Parliamentary Counsel. The views contained in this article are those of Ross Carter alone, not the Parliamentary Counsel Office or the New Zealand Government.

Most New Zealand legislation is drafted at, and published by, the Parliamentary Counsel Office (PCO), led by Chief Parliamentary Counsel (and Chief Executive) Cassie Nicholson. The Drafting Group drafts Bills, amendments to Acts, and secondary legislation required for the Government's legislative programme. Drafting is done by about 40 Parliamentary Counsel (drafters), all legally-qualified, grouped in five subject-area teams. Their work is both challenging and specialised, and the issues they deal with range across a wide spectrum. The Drafting Group is led by Deputy Chief (Drafting) Richard Wallace, a drafter at PCO since 2003.

Do drafters advocate for or against proposed legislation, or just give effect to policy?

Drafters prepare legislation to implement the Government’s policy. Departments’ policy advisers, and lawyers: (a) develop policy proposals of, or approved by, Ministers (the Cabinet); and (b) instruct PCO to draft legislation to implement the proposals.

In drafting, and advising on, legislation, drafters ask instructors many questions to determine what outcomes the legislation is to achieve. They then help identify whether, and how best, legislation can implement the Government’s policy. PCO’s objective is technical: to promote high-quality legislation that is easy to find, use, and understand. To that end, PCO exercises stewardship of New Zealand’s legislation as a whole. A department’s chief executive is responsible to the appropriate Minister for supporting that Minister to act as a good steward of the public interest, including by maintaining the currency of any legislation administered by their agency. Policy ideas are, in the end, those of, or approved by, democratically-accountable elected Ministers and other MPs.

As Deputy Chief (Drafting) Richard Wallace has noted, “We work for whichever government of the day, we don't worry about the policy, we don't worry about the government. That's not our concern. Our concern is to make really good legislation.” (https://www.rnz.co.nz/ national/programmes/the-house/audio/2018838304/ painting-the-legal-jigsaw-one-piece-at-a-time).

How do you identify the legislative options that may be open?

Ideas for legislation come from many sources (e.g., Ministers, backbench MPs, Law or Royal Commissions, or other reviews or inquiries). Government departments’ policy advisers, and lawyers, identify the policy problem, and evaluate possible solutions. They, or their drafters, may also identify existing precedents from New Zealand’s statute book or overseas. (For example, comparable overseas legislation helped inform New Zealand’s Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 and Terrorism Suppression (Control Orders) Act 2019.) But many proposals innovate, either to solve new problems, or to fit New Zealand’s unique legislative context. A whole new scheme may be needed. If so, PCO develops it and refines it, usually over many iterative drafts. Different drafters may, within the requirements of current legislative drafting practice, devise different detailed effective solutions to matters not covered by standard provisions. The aim is clear. Simple and effective solutions that best fit New Zealand’s statute book as a whole.

What are drafters looking for when reviewing legislation?

Drafters’ work is heavily scrutinised – by themselves, PCO drafter peer reviewers, PCO’s excellent legislative editors, Ministers and other instructors, other interested departments or agencies, parliamentary authorities, MPs, submitters, the affected public, lawyers, and courts and tribunals. PCO drafters and editors checking legislation look for (and in most cases eliminate) errors that need correction, compliance with current and best legislative drafting practice, and possible demonstrable improvements, including changes to simplify and clarify expression. When revising existing legislation for re-enactment, drafters can do a lot to update, simplify, and otherwise follow best current legislative drafting practice.

Plain language legislation – is it really plain, or does it give rise to its own issues?

Drafters aim to draft legislation that is as clear, simple, and as effective as is practicable.

Plain language makes legislation much easier to find, use, and understand.

Legislation can use general-principles-based, or more detailed, drafting. There is something to be said for each approach. Both can, however, also give rise to issues of interpretation.

Plain language legislation is essential, but cannot alone solve all problems of interpretation:

“[O]ne result of the modern style of drafting may be that there are simpler provisions which are more general and therefore there might be more scope for argument as to what they cover. Statutory interpretation will, therefore, occupy the minds of judges, lawyers and citizens for some time longer. Although hopefully, the interpretation exercise will be less strenuous than it once was.” (Justice Susan Glazebrook, “Statutory Interpretation in the Supreme Court” PCO, Wellington, 4 September 2015, p 3.)

PCO is committed to plain language drafting. But it requires a focus on improvement. So PCO’s intentions for 2020–24 include showing continuous improvement in the use of plain language in legislation, and commissioning audits to compare legislation, in order to measure progress.

PCO therefore applies a plain language standard. It also uses a checklist that expands on, and helps ensure compliance with, each element of the standard.

Most users think modern legislation is generally much easier to use than considerably older legislation. But there will always be criticism, some justified, of the drafting of legislation. All users of legislation (including its drafters) are inconvenienced by shortcomings in its drafting.

So drafters aim to draft legislation that is as clear, simple, and as effective as is practicable. This includes in large and complex Acts, like those for financial markets conduct or social security.

This is a never-ending journey of improvement and continual focus for drafters. Many critics of legislative drafting have never themselves drafted legislation. My view is that it is hard, but very rewarding, to draft high-quality legislation that is easy to find, use, and understand.

Fit-for-purpose issues – how far can PCO drafters take this consideration?

PCO’s vision is for legislation that is great law for New Zealand. That means legislation that is accessible, fit for purpose, and constitutionally sound. Policy is tested by PCO (gently) to help ensure that, and how, it is workable to achieve the wanted outcomes. This can result in a proposal being dropped. Mostly, the result is that the proposal is just adjusted and refined.

Legislation’s purpose (overall, and at lower levels) is often stated in the legislation itself. This helps to ensure those who frame, enact, and interpret and apply the law are focussed on whether it is fit-forpurpose (technically effective to achieve its purpose). For example, the purpose of the winter energy payment (as stated in the Social Security Act 2018, s 70) is to provide targeted financial assistance to help certain people meet their household heating costs during the winter period. Whether financial assistance of this kind should be provided and how it should be targeted are, of course, policy questions. Drafters help ensure fitness-for-purpose by identifying and resolving technical issues – such as inconsistencies, or whether secondary legislation is within power (authorised by its empowering legislation). Achievement of legislation’s political purposes raises wider questions – such as whether the winter energy payment is a way to, and is the best way to, achieve health and welfare.

Legislation is machinery made of words to achieve outcomes. Legislators select and approve the outcomes, and how they are to be achieved. But drafters help legislators frame, assess, and approve good options. Technical post-legislative reviews (as, for example, under the Russia Sanctions Act 2022, s 29), and parliamentary elections, help identify whether, and how well, legislation has worked, and what to do in the future. Some legislative change is highly contentious, but a lot is just good routine maintenance. Legislation is a core part of New Zealand’s infrastructure, so it needs constant maintenance.

How do you balance speed against accuracy in times of emergencies (e.g., the Covid-19 pandemic)

How quickly some draft legislation is needed is outside drafters’ control. Urgently-required legislation (say, for emergencies, or Budgets) raises special challenges (and rewards).

PCO has faced unprecedented challenges in supporting the Government’s legislative response to COVID-19. They have affected a lot of PCO’s day-to-day work. Chief Parliamentary Counsel Cassie Nicholson was deservedly LawFuel’s 2020 New Zealand Lawyer of the year. Deputy Chief (Drafting) Richard Wallace also provided immense leadership in this area.

The normal legislative process has been challenged by the need for speed in decision making, the highly uncertain and rapidly changing state of knowledge of the pandemic, and the breadth of issues to be managed across the economy (and so across Government). PCO has worked with other agencies at speed to deliver — and incrementally adapt and improve — fit-for-purpose processes for each round of legislative changes. At the same time, we have continued to deliver the new Government’s broader legislative programme, including new priorities for this parliamentary term (PCO Annual Report 2020-2021, pp 3 and 13).

As Richard has said, “There's been a huge amount of legislation produced in response to [Covid-19]. And we're really proud of what we've achieved in that space. There's been really great work done right across government, working through what's needed to respond to the particular circumstances … We've done our best in the circumstances, knowing that there will generally be an opportunity to make further amendments in the future, because [the legislative response to] Covid-19 is so fast ... in some ways it's more forgiving. We don't want to ever rely upon that. But there is a reality behind that.” (https:// www.rnz.co.nz/national/programmes/the-house/ audio/2018838304/painting-the-legal-jigsaw-onepiece-at-a-time).

The High Court said one order made under the Health Act 1956, s 70, was, in one respect, “not a model of good drafting”, but added “we also bear in mind that the Order was prepared in a situation of great urgency, in the eye of a global pandemic, when the crisis was escalating rapidly”: [2020] NZHC 2090 at [274]. The Court of Appeal analysed the order as (a) involving no (sub)delegation; but (b) involving some probably unauthorised exemptions (not subject to a challenge by Dr Andrew Borrowdale, a former drafter at PCO, who litigated to test the order’s lawfulness): [2021] NZCA 520.

New Zealand’s Regulations Review Committee has also criticised recently New Zealand’s Covid-19 Protection Framework Order for its complexity and for containing provisions that are not activated or applied to any area at any time. This drafting approach was taken to optimize flexibility and speed of drafting. The Regulations Review Committee’s work in this area is ongoing, and others such as our Law Commission are also reviewing these laws. The empowering Act may not contain enough core attributes of the scheme, but emergency legislation must also be flexible and responsive to changing facts.

The pandemic’s challenges have been recognised widely. “The legislative drafters around Australia should be congratulated for what they do on a regular basis and in particular for what they have done and continue to do during this time of national uncertainty” (Graeme Johnson & Sascha Kouvelis Lawyers, Sydney in (2020) 94 Australian Law Journal 315 at 322).

It is rewarding to be part of a high-performing team contributing to the pandemic response. The pandemic has affected legislation across the statute book, not just public health laws. Examples are orders modifying laws about making wills and taking statutory declarations. One order continued social assistance (temporary additional support) without an application process that may have been impossible or impracticable to comply with during an epidemic.

For a video where Christy Harcourt describes work as a Parliamentary Counsel, including managing PCO's Covid-19 drafting work, see: http://www.pco.govt.nz/ life-at-the-pco/.

How do you prepare for New Zealand Bill of Rights Act 1990 and Te Tiriti assessments?

Departments’ policy advisers and lawyers who develop policy look closely at consistency with the New Zealand Bill of Rights Act 1990 and Te Tiriti o Waitangi/The Treaty of Waitangi. But PCO works with them also as part of legislation being vetted for compliance with these key principles (e.g., by Ministry of Justice or, for legislation that Ministry administers, Crown Law Office). This is to help make legislation good law because it is constitutionally sound.

Judicial reviews of Covid-19 legislation show the duty to legislate consistently with the New Zealand Bill of Rights Act of 1990 is a meaningful duty. An example is the recent case of Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291, where a vaccination order was set aside as limiting rights unjustifiably. The order was not needed for the specified purpose of ensuring the continuity of and trust in public services.

The Legislation Design and Advisory Committee (LDAC) and its Legislation Guidelines (2021 edition), which are a guide to making good legislation, help with finding good solutions to especially tricky or recurring issues. The work of the Regulations Review Committee, collected in the Regulations Review Committee Digest (7th ed, New Zealand Centre for Public Law, 2020), is also helpful on secondary legislation issues (like powers to charge fees by regulation, or transitional regulations to override primary legislation).

In May 2022 the Australian Law Reform Commission, hosted a multi-national webinar, including a contribution from New Zealand PCO, on what should go in primary legislation and what should go in delegated legislation. The on-demand recording, including slides and a transcript, are available online. 1

What is the role of the Commonwealth Association of Legislative Counsel?

The Commonwealth Association of Legislative Counsel (CALC) was established at the Commonwealth Law Conference held in Hong Kong in 1983. CALC's objective is to promote cooperation in matters of professional interest among people in the Commonwealth engaged in, or engaged in training people in, legislative drafting, editing, or translating. CALC has over 2500 members around and outside the Commonwealth. It holds regular conferences and webinars. CALC also publishes a journal (The Loophole) and CALC Newsletter, both available free-of-charge at CALC’s website: www.calc.ngo.

New Zealand drafters (and editors, and translators) of legislation have had a long-standing, and very worthwhile, involvement in CALC. New Zealand PCO drafters must hold a legal qualification. 2 Most are barristers and solicitors. Many are also associate members of, and so also enjoy being part of, the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture.

* Ross Carter has been a drafter at PCO since 1998. He was also a Law Commission Researcher (1993 - 1997) and Private Secretary to Hon Dr Michael Cullen, Attorney-General (March - May 2005).

1. Legislation Act 2019 ss 136(2) and 137, Legislation (Repeals and Amendments) Act 2019, 5 11(2)(b), and Legislation (Recognition of Overseas Lawyers) Order 2014 (Ll 2014/123)