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Annual Report 2008-09 Output 1.5

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Legislative instruments

Summary

The Department drafts regulations and other instruments and publishes Commonwealth legislation and other material, notably by online publication on the ComLaw website. Agencies are required to use our services to draft regulations and commencement proclamations. They may also elect to use the Department’s services to draft other instruments on a user-pays basis. The Department is committed to drafting effective legislation in plain English that makes the law as accessible as possible for the public, legal practitioners and administrators. The Department regularly received positive feedback from clients about the quality of its legislative drafting services.

ComLaw, which incorporates the Federal Register of Legislative Instruments, provides the public with quick, easy and free access to Acts, legislative instruments and related material through the internet.

The Department creates compilations of Acts and regulations (up-to-date versions incorporating amendments) that enable users to see at a glance what the current law is, rather than having to piece together the original documents and amendments in the form they were made. In most cases a compilation is published online within a day or two after amendments come into force. For instruments other than regulations, the responsible agency must provide a compilation as soon as practicable after the instrument is amended, or may commission the Attorney-General’s Department to do so.

Major achievements

Legislative drafting

Demand for the Department’s drafting and advising services remained high overall in 2008–09 (Table 8), as a drop in demand for billable drafting services was matched by an increase in the amount of regulation drafting.

Table 8: Demand for drafting, advising and publishing services, 2007–08 and 2008–09

  2007–08 2008–09 Percentage
increase/
decrease (%)

Total number of draft instruments

786

791

1

Number of select legislative instruments drafted

307

423

27

Total number of pages of select legislative instruments made

4,054

4,425

8

Number of billable draft instruments

222

234

5

Billable draft instruments as a percentage of total draft instruments

28%

30%

7

Total billable revenue from drafting services

$1,251,468

$652,000

–92

Total billable revenue from publishing services

$1,906,139

$1,686,000

–13

Number of instruments assessed and registered on the Federal Register of Legislative Instruments

4,940

4,744

–4

Number of new and compiled items published on ComLaw

1,528

1,737

12

Number of amending items incorporated

18,800

22,856

18

Number of reprints published

30

16

–87

Number of pages of reprints published

7,614

7,956

4

Number of Gazette notices published

1,411

1,337

–6

Number of existing instruments backcaptured

307

781

61

Number of ComLaw visitors

5,026,011

5,429,543

7

The major clients for drafting of regulations and other instruments were the Attorney-General’s Department itself, the Department of Health and Ageing, the Civil Aviation Safety Authority, the Department of Families, Housing, Community Services and Indigenous Affairs and the Department of the Environment, Water, Heritage and the Arts. Major drafting projects included the Fair Work package and instruments for the Emissions Trading Scheme.

The challenge of the Department’s comparatively high proportion of inexperienced drafters, highlighted in recent annual reports, is gradually being overcome. Staff are gaining experience, training programs are being improved, and experienced staff are passing on their knowledge.

The Department provides training packages for client agencies to help them become more effective users of the Department’s drafting service, and so improve the quality of legislation they commission. Demand for these packages continues to be strong.

ComLaw and the Federal Register of Legislative Instruments

Since the beginning of 2005, all Commonwealth rule-making agencies must lodge new legislative instruments for registration as soon as practicable after making them. All earlier instruments had to be lodged for registration by the end of 2007, or they would cease to operate. Some 20,000 instruments were ‘backcaptured’ in this way; most were registered by mid 2008. The last 800 took some time to process as they represented the more complex and difficult cases, those where originals had been lost or mislaid or where there was doubt as to whether the instruments were still in force or, in some cases, had been validly made. All have now been resolved.

The current Comlaw system has reached a point where it is preferable to replace it rather than continue to develop it. The Department is building a new system to keep up with the evolving information technology environment and changes in the legislative landscape, and to provide a more intuitive and accessible system for users. The Department plans to introduce the new ComLaw II system by early 2010. Meanwhile, the existing system is being maintained to meet client and legislative requirements. Progress has been made in migrating historical data from the old SCALEplus.

Other publications

The Department publishes Acts and instruments in printed form and sells copies to the public, industry and the profession through the bookshop network maintained by CanPrint Communications. Legislation for which there is regular demand is printed in bulk, at comparatively low cost. Other legislation is printed on demand.

The Department publishes the Government Notices series of the Commonwealth of Australia Gazette, in both printed form and online.

Overseas work

The Department continued to provide training and drafting services to other countries in the region, undertaking projects in Indonesia, Kiribati, Samoa, and Tuvalu. It hosted two South Pacific drafters in three-month professional placements.

Purchaser/provider arrangements

The Department drafts legislative instruments on instructions received from Australian Government agencies. The Department receives funding through the Federal Budget for drafting of regulations, proclamations and rules of court. For other instruments, agencies are free to obtain services from the market; the Department is a competitor in this area. The Department provides a similar service for compilations. We publish the Government Notices gazette series and charge agencies market rates for these publishing services. Agencies are charged a small lodgment fee for instruments and compilations that are to be registered on the Federal Register of Legislative Instruments. The Department is the sole supplier of these last two services.

Outlook

Demand for the Department’s drafting services will remain at a high level as the Government implements its reform program. The Department will continue to focus on building its capacity to provide legislation of the highest quality by training its staff and maintaining a stable group of drafters who can steadily increase their levels of experience and skill.

The Department hopes to deploy ComLaw II either late in 2009 or early in 2010. Although further development will be needed, the system will provide a platform that allows implementation of recommendations in the Review of the Legislative Instruments Act 2003 tabled on 14 May 2009, depending on the Government’s response. It will also enable implementation of provisions in the Evidence Act 1995 that allow designated electronic forms of Acts to be authoritative for the purposes of court proceedings.

We will continue to migrate existing historical databases to ComLaw and, if possible, create new historical databases to extend its scope.

The Department expects to continue its involvement in providing training and drafting services to other countries in the region, both in Canberra and in the countries concerned. Planning is underway to host a drafting workshop for South Pacific visitors in October 2009.

Performance indicators

Table 9: Performance indicators, Output 1.5—Legislative instruments

Key performance indicators 2008–09 target Result

High-quality drafting of legislative and other instruments in a timely and effective manner

95% of drafting and advising matters are completed within six weeks after instructions are received, or by some mutually agreed timeframe

Achieved

100% of instruments drafted not criticised by the Senate Standing Committee on Regulations and Ordinances as breaching the principles of good drafting practice

Achieved

Committee comments related to sponsoring agencies’ policy decisions to have their legislation drafted in particular ways. The Committee’s concerns were addressed by negotiation with the agencies, often with advice and assistance from the Office of Legislative Drafting and Publishing.

Register legislative instruments on the Federal Register of Legislative Instruments and lodge them for tabling in Parliament in accordance with statutory requirements

100% of legislative instruments that are lodged for registration are registered on the Federal Register of Legislative Instruments within the timeframe set for their commencement and in time to ensure they are enforceable

Achieved

100% of registered legislative instruments are delivered to each House of the Parliament for tabling within six sitting days after registration

Achieved

Prepare and publish Commonwealth legislative materials in a timely and effective manner

95% of Commonwealth legislative material is prepared and published within required timeframes

Achieved

100% of Commonwealth legislative material is prepared and published accurately

Substantially achieved

20 rectifications of legislative instruments compilation approved and registered to the Federal Register of Legislative Instruments during 2008–09. Breakdown of rectification responsibility: 3—agency errors, 3—system errors during conversion, 3—historical errors identified, 11—Office of Legislative Drafting and Publishing compilation and Drafting errors. Various historical and system errors have been identified during reprint checks of Act compilations.

 

Administered items Results

Publications of Acts and select legislative instruments

Achieved

16 reprints of Acts and legislative instruments were published and the 2008 Acts bound volumes were received from the printers in June.

Budget price: $1.129 million

Actual price: $0.996 million


Our people

Letter of the law

Leigh Schneider, Lucy Keogh and Donna Buck, Drafting Unit 1, Office of Legislative Drafting and Publishing 

Leigh Schneider, Lucy Keogh and Donna
Buck, Drafting Unit 1, Office of
Legislative Drafting and Publishing
.

The better you unpack the issues … the more accessible the law will be

‘Drafting is not sexy work, but it is very absorbing and engaging because it’s so intellectually challenging,’ said Lucy Keogh, a legislation drafter in the Office of Legislative Drafting and Publishing. Her comments encapsulate a key satisfaction the Department’s drafters derive from their work.

Recently the Department was asked to draft the Fair Work Regulations to accompany the landmark Fair Work Act 2009. In an amazing turnaround of just six weeks, the Department drafted 250 pages of regulations for the Department of Education, Employment and Workplace Relations (DEEWR). The regulations ranged from definitions to denoting rights and responsibilities in the new workplace relations system.

Organisation and attention to detail were critical skills the drafters employed. Leigh Schneider led the drafting team of Lucy Keogh, Donna Buck and Frances Dunbar. Their first task was to comprehend the 1000+ pages of the Act and its amendments from the Office of Parliamentary Counsel as quickly as possible before initiating drafting.

Once the drafting had begun, Leigh and Lucy liaised with the DEEWR instructors.

‘At one point, we were juggling instructions from up to 20 DEEWR staff,’ Leigh said.

The Fair Work legislation is a centrepiece of the Government’s 2007 election platform. It is a substantial rewrite of the old Workplace Relations package, affecting most parts of workplace law.

As Leigh explained, ‘It’s always an ambition in drafting to be working on a front-page issue and to be able to contribute in a meaningful way to advancing the Government’s policy agenda’.

Lucy summed up the importance of their work: ‘The better you unpack the issues until you get to their essence and the clearer the policy is, the plainer the English will be and the more accessible the law will be. And that’s what it’s all about.’

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