From policy to legislation part I: introduction to drafting

This post in brief

• Legislation is written by parliamentary drafters, not policy officers.
• Drafters are typically analytical, precise, outcomes-focused and independent. They are also usually very good at their job.
• Drafting begins with the policy officers giving written instructions to the drafters.
• The instructions set out in detail what the policy problem is and how the instructors would like to solve it.
• Drafting is an iterative process, with many drafts, reviews and re-drafts before both the instructors and drafters are satisfied.

From policy to legislation part I: introduction to drafting

Despite what my mother might say when she’s bragging about her son’s job to her friends, policy officers don’t actually write laws themselves. Once the policy is settled, it is the parliamentary drafter who writes the actual text of the bill.[i] The policy officer’s job is to tell the drafter what the policy is, so that the drafter can draft text that will give legal effect to the policy. The former is the process of giving drafting instructions.

In this post, I’ll give a brief overview of who the drafters are, and of the drafting process. Later posts will identify common problems with drafting instructions that can derail or delay the drafting process - if you’re already familiar with legislative drafting, please feel free to skip to the next post.

Who are the drafters?

The Office of Parliamentary Counsel (OPC) drafts the bills that are introduced into the Commonwealth Parliament by the Australian Government (as opposed to bills introduced by the opposition or cross-bench). As this is the jurisdiction that I work in, I will focus on the processes used by OPC. However, the Australian states and territories have their own separate drafting offices. Broadly, the drafting process in the states and territories is similar to the Commonwealth. I expect (but have not checked) that the process would also be similar in other Anglophone common law countries, especially England and the other countries with a Westminster-style of responsible government.

The drafters employed by OPC are lawyers who typically have considerable training and expertise in legislative drafting (obviously), statutory interpretation, constitutional law, and administrative law. Drafting roles are well paid (for the public service, that is – top barristers and partners at top tier law firms would usually earn more in private practice) and highly sought-after: entry into the drafting offices is very competitive.

What this means is that OPC drafters are typically some of the best lawyers in the Australian Public Service: they are well trained, have analytical skills of the highest order, and are typically very good at their jobs. I’m often amazed at how quickly drafters can get across the intricacies of a complex and unfamiliar piece of legislation.

Traits of a drafter

It’s also worth pausing for a moment to consider the traits of the typical drafter, as understanding how drafters think enables the instructors to communicate more clearly and efficiently with them.[ii] In my experience, drafters are:

• Analytical. They have to understand the concepts behind the often-complex legislative schemes they are amending. Drafters will not accept woolly or ill-defined concepts in your instructions without further elaboration and explanation.
• Precise. Using the correct words, punctuation and grammar matters a great deal when the legislative text will be scrutinised by lawyers and judges once it’s law: a certain amount of pedantry is necessary.
• Outcome-focused. Drafters work under extreme pressure to produce an immense amount of draft legislation. They are tighly focused on the task at hand. Although professional and friendly, when a drafter calls you they won’t usually engage in endless small talk before getting down to business.
• Independent. OPC ultimately serves the Government as a whole, not just the instructing agency. This means that drafters will not take your suggested approach at face value and will often propose - and push strongly for - a different approach if they think it is better.

Why mention this? Drafters will (and usually should) challenge policy officers on aspects of their instructions. In my experience drafters are always polite and professional when they do this. However, if the instructor has a different personality type to the drafter, there is the possibility that good-faith disagreements could devolve into unnecessary personality conflicts (rare as they are).[iii] Recognising the potential for this goes a long way to avoiding unhelpful conflicts.

The drafting process

To guide policy officers who are instructing on legislation, OPC publishes a number of guides, including Giving written drafting instructions to OPC and OPC’s drafting services – a guide for clients. For those who want even more detail on the drafting process, OPC also publishes its drafting manuals and drafting directions.

Giving written instructions

Broadly, the instructing agency will initiate the process by giving the drafters a set of written drafting instructions. These instructions are ideally comprehensive (explain all relevant aspects of a well-developed policy), though depending on the urgency of the bill and other factors this may not always be the case. Pages 3 – 9 of the OPC guide to giving instructions has a comprehensive list of the matters that OPC likes to have addressed in the instructions. However, the most important thing that the instructions must do is explain (a) the problem that the policy is intended to address, and (b) the outcome that the policy is intended to achieve.

Drafting commences

Once OPC assigns a drafter or a drafting team, the instructors and drafters will meet to discuss timelines for the project. The drafters will then begin to provide the instructors with drafts of individual proposals, which the instructors must review. If the instructor is not satisfied with the draft they will provide further supplementary instructions (sometimes in writing, but sometimes verbally if the matter is simple). The process of draft, review, further instructions will usually repeat through a number of iterations until a final draft is settled upon. That settled draft may be subject to public consultation (and further drafting iterations, based on feedback from that consultation) or the settled draft may be introduced to parliament.

And that, broadly speaking, is the drafting process. In the next post I will focus on how to make the initial written drafting instructions better, so that the drafting process can proceed smoothly and result in better legislation.

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[i] Of course, in the legal or constitutional sense, the law that results from the bill is made by Parliament when it is passed by both houses and receives royal assent. But in a practical sense, it is the drafters (not politicians) who write the actual text of the legislative provisions.

[ii] In my career generally, I have often found tools such as the DISC Assessment and the Herrmann Brain Dominance Instrument useful to understand the different personality types of people you work with. People often underestimate the extent that failing to account for the different outlook of someone else can affect how well you communicate with them.

[iii] I should say extreme personality conflict is rare because policy officers are also often selected for traits similar to those of drafters: we also tend to be rational and details-focused (but perhaps not to the same extent as drafters).