Developing a draft Bill

6.1 Written drafting instructions provide the starting point for discussions with OPC. Templates for drafting instructions are available on the OPC website. Clarifications of those instructions, further instructions, and comments on draft provisions may be provided orally, by telephone or in meetings, if this is convenient. On occasions, a drafter will request that an instruction be confirmed in writing (e.g. if it is significant or could depart from existing authority). Further information about issuing drafting instructions to OPC can be found in OPC’s drafting services: a guide for clients and relevant Instructor Guidance Notes.

6.2 After appropriate discussions with instructing officers (which may first lead to the development of a drafting plan), OPC will prepare a draft bill. More detail about the process can be found on OPC’s website. In particular, information on the timeframes for the development of bills and judging the size and complexity of bills can be found on OPC’s website.

Comments by the instructing department on draft bills

6.3 OPC expects the instructing department to provide its comments on the draft bill in a timely manner, in line with the timetable for the particular bill. The drafter can advise when comments are due to be provided on the bill. A failure to provide comments in a timely manner could jeopardise the timetable for the bill.

6.4 Comments need to be provided quickly if the matter is urgent. For less urgent matters, if the appropriate timeframe has not been discussed with the drafter, the instructing department is expected to provide its comments to OPC within 5 working days of receipt of the draft bill. If other departments or authorities are being consulted, comments are due within 10 working days.

Consultation with other agencies on draft bills

6.5 The instructing department is to arrange for copies of the draft bill to be sent to appropriate agencies for comment. Agencies are required to provide their comments in writing within the timeframe stipulated by the instructing department. An agency providing comments on a draft bill is to copy its comments to other agencies which receive copies of the bill.

6.6 OPC will also send copies to any agency that has a right or responsibility to provide policy input in relation to the bill (for further information on the referral of bills by OPC to other agencies, see OPC’s Drafting Direction No. 4.2. Agencies that receive a copy of a draft bill for comment from OPC are required to provide comments in accordance with the covering email accompanying the draft. Copies of the draft bill are automatically provided by OPC to PM&C as part of the legislation approval process.

Ministerial clearance of a bill

6.7 When the department and OPC have agreed on the terms of a draft bill, the department must submit it (and the explanatory memorandum) to the minister for approval of the text. See also paragraph 8.16.

6.8 Where a bill amends legislation that is the responsibility of another minister, approval of the final text of the amendments must also be obtained prior to introduction of the bill, either through agreement at department SES level or, in exceptional circumstances, through an exchange of letters between ministers.

6.9 When a bill has been settled with the department, OPC arranges for lodgement with the Legislation Section at PM&C for the preparation of a legislation approval submission. This can occur ahead of ministerial approval of the bill.

6.10 OPC also provides a memorandum to PM&C identifying the policy authority for the bill. If the drafter is not satisfied that the contents of the bill have appropriate policy authority, this will be set out in the memorandum. Usually, the drafter will raise any gaps in authority with instructors in time for the necessary authority to be sought before the OPC memorandum is finalised. Departments are encouraged to consult the drafter on the terms of draft policy approval letters. Departments can assist drafters by providing them, early in the process, with copies of all correspondence seeking the Prime Minister’s policy approval and the agreement of other ministers, plus copies of the responses.

Advance disclosure/exposure of draft bills

6.11 Draft bills and all associated material, including related correspondence, drafting instructions and typed or manuscript versions of a bill, are confidential to the Government and can attract legal professional privilege and may also attract public interest immunity. Access is on a ‘need to know’ basis.

6.12 Details of bills are not to be released outside government before their introduction into the Parliament unless disclosure is authorised by the Cabinet or the Prime Minister. Where possible, Cabinet submissions seeking policy authority for a proposal will also include a recommendation to release the draft of a bill if consultation outside government is considered desirable (see paragraph 3.9(k)). Otherwise, ministers who wish to release the draft of a bill must write to the Prime Minister seeking approval to do so. The request needs to specify the terms of the release (e.g. public release or targeted consultation with stakeholders). 

6.13 Copies of bills sometimes need to be provided to state ministers or officials, particularly where complementary legislation has to be prepared. Ministers are to write to the Prime Minister seeking approval to make copies available. Drafts are provided on a confidential basis in the expectation that the recipient will not breach the confidence.

6.14 In seeking approval from the Prime Minister for a draft bill to be exposed, ministers must indicate whether all measures in the bill have policy authority. In exceptional circumstances, ministers may consider that exposure can proceed in advance of policy authority. In such cases, ministers must provide reasons in the letter to the Prime Minister. Where necessary, policy authority could be sought in the same letter (see paragraph 3.10), together with an assurance that an Impact Analysis (IA) has been prepared, if one is required.

Consulting for clarity, readability and complexity

6.15 In consulting on exposure drafts, departmental instructing officers may invite consideration of, and comments on, the clarity, readability and complexity of the draft legislation. Any appropriate feedback is expected to be used to assess and improve the legislation to ensure, where possible, that the public is able to access, read and understand the laws that apply to them.