AGLN Seminar 3: How legal services affect the development of legislative schemes?

Articles


good afternoon welcome to the last in
this series of the Australian government legal network’s seminars this seminars
you know is on how different models for delivering legal services affect the
development of legislative schemes my name is Tony Walsh I’m a senior
drafted with the Office of parliamentary counsel but also on the board for AGL in
and so I’d like to welcome you on behalf of the network today’s speakers you will
be familiar suspect to many of you the first of our speakers is Peter Quillin
Peter is the first parliamentary counsel with the office of parliamentary counsel
parliamentary councilors most of you know is responsible for drafting
principled legislation for the Commonwealth such as acts we’re also
responsible for drafting regulations and many of the legislative instruments that
are produced for the Commonwealth OPC also runs the federal register of
legislative interation Peters currently in his third term his first
parliamentary counsel and so will be very familiar to many of you he was
first appointed in 2004 him was recently reappointed for further five years he’s
been a drafter with the Office of parliamentary counsel for over 25 years
drafters hang around for a long time he’s drafted legislation covering a wide
variety of areas and that includes things like taxation an immigration and
Native Title prior to working at OPC Peter was for a number of years with the
tax office in the area dealing with instructing on taxation law and prior to
that dealing with the Administrative Appeals Tribunal the second speaker for
today will be Susie Brown Susie is a senior general counsel with the
Australian Government solicitor Susie advisors on a broad range to a broad
range of Commonwealth agencies predominantly on issues such as
statutory interpretation administrative law constitutional law and environmental
law she’s had considerable experience working as on secondment as in-house
counsel to a number of agents and that included the role of general
counsel Department of Sustainability environment water population and
communities I think it’s fair to say that Suzy understands very well the
everyday pressures faced by clients Suzy’s worked on a number of major
legislative reforms including the development of the carbon pollution
reduction scheme in 2009 the product stewardship acted in 2011 and recent
more recently the biosecurity act in 2015 before being a DJ Suzy was
associate to justice Goren and before that justice gray in the federal court
our final speaker for today will be Simon writer Simon is currently acting
as division head in Treasury’s law design office he joined rejoined
Treasury last year as the principal adviser to the law design office and his
role was to tailored to have responsibility for the markets and
structural reform and legislation management within Treasury before that
someone was general counsel at the Department of Environment of init and
energy he’s worked in as an SES level within the Department of Industry and on
the climate change project prior to that he worked with Treasury and the UK
Department of Trade and Industry in various roles and has also begun his
career in the private sector as a solicitor with Alvin’s so I might begin
this afternoon what will happen is we’ll have the same format as we’ve had in
previous sessions so there will be three brief outlines of brief presentations
and then at the end of that there’ll be opportunity for questions and discussion
I should mention that the seminar is being recorded so if you have any
colleagues who are unable to attend today they’ll be able to access it on a
recording we’ll send an email out about that so I’d like to know a pass to peter
quicken from the office of parliamentary counsel what we’re going to have a look
at today is different instructing structures
departments and the strengths and weaknesses of those and sort of the sort
of things that need to be taken into account depending on which sort of
structure you have I’ll give a general overview of the various different
structures that we see from a PCS perspective and the points that you need
to consider for each of those different types
Suseo then sort of focused more on what legal people in the system need to look
at and then Simon will actually look at a fairly specific case study and sort of
bring it all together looking at how Treasury have implemented their
instructing process so when I was asked to give this speech thought it’d be a
useful idea to ask the drafters you know please see what they thought and so he
had a meeting and the first thing that the drafters came up with was that the
structure is not actually as important as the skills and experience of the
instructing team and how well they work together and perhaps when you think
about this it may sort of end up being obvious but it really is a fundamental
thing that the it’s really the people that we’re dealing with and the way
they’re working together rather than the particular structure that tends to
determine whether or not a legislative project will go well and I think one of
the the reasons for this other thing the draft has came out with is that we see
instructing is an important school that needs to be valued so we actually see
instructing as a specialist skill that’s not so in the same way that other skills
are learned on the job etc some people will be better at them and the Millers
but it’s something that actually is different from just being a policy
officer or just being a lawyer something that the more you do the better you get
at it and that’s something that people need to actually be trained in how to do
instructing coming out of that is a view that we have that in departments need to
develop and also to value their instructing staff and I think this we
see this at different levels across the Commonwealth some departments
have particular areas where they so work on developing instructing staff getting
them to work with more experienced instructors others just sort of seemed
to get a job on the down a corridor the first available person give it to and
say you’ve never instructed before you’ve got nobody around you has ever
instructed but have it go certainly we think departments need to both develop
and value their instructing staff so moving on to the sort of different
structures departments may use so looking at who’s involved in the process
and this is probably the people I’ll look at some who’s directly involved
with OPC in these processes those first group of people that are in registered
projects and the dependent mental policy area which is responsible for developing
the policies so within the department they will nearly always be a particular
policy area that has responsibility for any particular project that comes along
another area that we deal with regularly is the legal area and it could be a
departmental or possibly external legal area which is provided responsible
providing legal advice to the policy area the third one is our office the
opposite parliamentary Council which has documented as a specialist drafting
office and our job is to analyse the policy and then prepare the legislation
and the final grimmer I was just going to mention the administrators or
regulators so they’re the people who actually have to be implement or
administer the legislation sometimes there’ll be an overlap between them and
the policy people but often there’ll be a separate group so we’ve got those four
players and basically what I’m going to look at is the different ways that we
see they’re organized in the legislative process so the first model which is
probably the perhaps the traditional model the model was used numerous years
ago for for nearly all departments was where the policy officers would do the
direct instructing and so in this model we have the policy people working
directly with the OPC drafters there’s probably legal people off to the side so
they may be getting advice during the reparation of instructions they may be
providing advice as we go along but they’re not sort of directly involved
with OPC and similarly off to the other side is the administrator or regulator
so they will have some involvement but again not particularly close involvement
in the direct instructing and drafting process and looking at this the
advantage of this is that the policy area remains closely involved throughout
the whole process so when you consider the the whole point of the drafting
process is to take a policy and implement it into legislation having the
policy area closely involved throughout is obviously a great advantage however
there are a number of disadvantages and the first is that it relies on the
policy area being very skilled in instructing and also knowing the legal
issues so knowing when they’ll have to get advice and again in some areas this
will work well but if it’s one where there’s have you got a department with
50 different policy areas it’s unlikely that all of those 50 areas will actually
have people who over time of being skilled in instructing what we have
found with this structure is that generally instructions are not they’re
often not well developed when they come to OPC so they can be very general some
I’ve even seen some that are so general they actually just repeated the the bid
that was given to parliamentary business committee we did have one set a number
of years ago which said this is the policy outcome that the department
wishes to have OPC should not restrict itself to one approach in determining
how to do that there was a little bit step too far but we do find even when
it’s a fairly narrow issue the instructions are often not well
developed if we haven’t had the other is involved this means it requires greater
input from a PC which we can be problematic the probably the worst model
is where you have the legal people off to the side and you go to them right at
the end so you’ve done the policy you’ve got the draft here’s the draft they then
send it off to legal and legal find there’s some fundamental problem so get
back to square one similarly getting the regulator involved right at the
in and saying here’s what we’re about to do to you or for you is a similar
problem that if at that point they say no no no the whole thing doesn’t work
there’s difficulties the second model I’m going to look at which has become
more popular in a number of agencies is one where there’s a need to pose legal
area so there’s a legal area in the department that has the role of
providing instructions on all legislation so I think Home Affairs is
one or immigration before in the pre pre Home Affairs days was one that had
specialist legal areas that provided instructions so they would get in advice
from the policy areas we tell them what they need to do they would work up the
instructions an OPC would work directly with the legal people at some point with
other areas there may be an administrator or regulator is again off
to the side so that policy people would be talking to them so this says so was a
common model across a number of agencies for some time again there’s advantages
with this the instructions are usually better thought through so they’ve been
developed by the policy people they’ve gone to the legal people so they’ve had
that second review and input from people who know about legal issues so the legal
issues are usually addressed early in the process we don’t get way down the
line and then find those issues that haven’t been addressed there’s usually
or often less turnover in those areas those central legal areas and so the
instructors tend to end up being more experienced and if nothing else even if
the level of turnover was the same you’ve just got one area compared to if
you’ve got the 50 different policy areas it’s very difficult to get the less same
level experience spread across that policy level as opposed to one core
legal area there are disadvantages though of course Chinese whispers so if
you recall the last slide we had the the person implementing it the policy person
talking to the legal person talking to the drafters so if there is an issue
that requires some input from the regulator
Oh PC will say that the legal people what does regulator think about that
they’ll ask the policy people who’ll ask the regulator who tell them who will
tell the policy lawyers who tell OPC and by the time has gone in both directions
it’s likely that the two messages are the answer you get will be rather
difficult another disadvantage with some that can happen is the policy area may
become disengage the policy area may view this as a process where they
produce the original policy hand it to legal and then sit back and not have any
further involvement and that’s obviously problematic if we’re going back saying
well how else should the policy work it can be difficult for the legal heir in
some cases to to get the policy area involved if they see legislation or
something that’s not there for them to do a slightly different problem is where
the legal area becomes a postbox and by that I mean OPC says what should we do
about this and they get our email they press
forward and send it to policy policy get the email open it up type some stuff in
send it to legal who press forward and send it back probably the best example
I’ve got of this is I’ve got some instructions once and I read them and
just couldn’t work out what they what they meant so they’re in a response to a
question I’d ask and I just couldn’t understand what they meant so I rang the
instructors in the legal area and said I’ve got the instructions but I just
can’t understand them nice it here yeah we couldn’t understand them either so
that’s why we sent them to you so the legal area has to be active in Si
certainly not just a post box and part of that is drafters needs some access to
the policy people I think if sometimes in the past some people have had a real
wall that the drafters never deal with the policy people it’s much more useful
if the drafter to have some access even if it’s with the the legal people to the
policy people the third one I want to look at was probably one that’s used
more these days which is the policy area primarily
instructing but with close involvement of the lis
area and this says a much more one that’s used in a number of agencies
these days and probably reflects I think the change over time probably reflects
the rise of more complex legal issues in policy development again the advantages
of this if you’ve got had that early legal involvement instructions are
usually better thought through again the legal issues have generally identified
earlier because there’s been that involvement the policy remains engaged
by having the policy areas the primary instructors they remain engaged in the
process the main disadvantages still relies on the policy people being able
to instruct and being schooled in instructing as they’re the ones actually
providing the instructions the one thing I also just want to mention quickly was
involving administrators so we’ve seen those in each of the slides of hiding
off to the side it’s important to involve the administrators or regulators
throughout the process they actually understand how things work on the ground
and they’re also the ones who are actually going to have to implement the
law they bring a particular knowledge and a particular perspective which is
often very different from the one that policymakers who may have I’m not saying
that the policy people should defer to the administrators in all cases I think
you need to be aware that administrators and regulators will have a particular
view of the world and that may not be the view that fits the particular policy
and so again they need to work with them and fool to those comments and it’s
often useful to have the regulator’s at some point involved with with the
drafters also just want to mention one other aspect involving AGS for legal
advice as you’re probably we’re on a legal services direction advice on
legislation has to be provided by a gso it’s tied to a GS so you may find that
when illegal issue arises in a drafting project the draft will say we want you
to go to a GS for advice and basically our view is that that
roll is tied and therefore both can’t go out to a private firm and can’t be done
in-house there’ll be a whole lot of other legal work that that can be done
in that way but where there’s specific advice we think AGS needs to be involved
and I think if we’ve got one of these projects so if it went often the draft
has a look at the start and think well this has got particular issues often
constitutional ones it’s important to involve AGS throughout the process for
the projects that need their input again it’s pretty unproductive if we say we
think you need a GS advise ie we’ll get that at the end we’ll get that the end
if we get to the end and a GS say no that’s all back to front that can waste
a lot of time again a GS bringing particular knowledge and perspective to
issues they’ve seen a lot of these issues from across other areas of
government and it’s again often useful to have them at meetings so we always
departments need to pay for ideas to attend although I read that they’re now
going to a cost recovery model so no doubt there’ll be bargain basement
prices but it is useful to have them actually at the meeting so that again
you don’t get the thing where the drafter has trying to explain perhaps a
non-legal instructor a legal issue you can get them to try and explain that to
IGS I think you end up actually being at a cheaper way in the long run the one
other thing I just want to mention quickly was outsourcing the instructing
function so this may be something if a department doesn’t have the skilled
instructors they may wish to look at outsourcing the instructing function so
it’s something that so we’ve seen a number of agencies do to overcome skill
shortages either short-term or long-term where fairness worked pretty well where
a GS has taken on the role although again a GS still need to have access to
the policy people you can’t say to ideas well can you instruct on this project
and walk away they obviously need to have close contact with the departmental
people and so those policy offers is really
need to remain fully engaged so hopefully that’s given a an overview of
the different things and some of the things that people need to look out for
and so now Isuzu will come and focus on some of the things of particular
interest to the lawyers involved in the process thank you Thanks thanks Peter and thanks to the
idea lender for having me come and speak today it is covered off different
instructing models I’m going to focus as as he alluded to to some of the
different ways in which you can volve lawyers not so much as instructors but
for the legal advice function in the drafting process and I think my comments
covered to some extent both internal and external lawyers my observations are
based mainly on my own experience as an AGS lawyer on a number of large
legislative projects but in working on those projects I have often although not
always been out posted to the relevant department so I hope I bring a bit of a
person and in some cases like my current role I’m embedded in their legal area
but supporting a number of legislative projects I hope I at least to some
extent capture the perspective of in-house lawyers as well as AGS lawyers so there’s a wide range of models or
ways and engaging lawyers and legislative projects these are really
invite way of examples and we see there a bit of a spectrum I suppose the
lawyers can be the instructors Peter’s largely covered that that issue and so I
won’t touch on it further here I must say while AGS is engaged to be the
instructors it’s not not been my own experience I’ve usually been part of a
team or assisting the instructing team the lawyers can be embedded in the
policy team I’ve worked in this model where you’ve got a very large
legislative project you essentially put together a task force type structure and
the largest one I’ve worked on they started with me three days a week and
they ended up with four five full-time ages lawyers ramped up over time and I
think reflected the complexity of the legal issues and also just that she you
need to support the instructing function as I alluded to that lawyers models have
you part of the in-house legal team you might actually the members of that team
or seconded lawyers in my case you have a virtual Sur comment type
model I’ve also worked in this model we’re on the biosecurity bills half my
time was dedicated to that bill every time a constitutional advice issue arose
they could just come to me it made certainly the procurement easier from
their point of view but it also you know what me to have that continuity of
perspective over a bill that ended up being about I don’t know four hundred
five hundred pages long or you can have a dedicated team of external lawyers
obviously they’ll be working on a range of things but you always go back to that
particular individual team and the last one is responding to ad hoc requests
when the policy area realizes they need legal advice on a
particular thing or as Peter alluded to sometimes I hope esa will say you need
AG s advice on this particular question so the choice of models likely to be
influenced again by a real broad range of factors and these are just some of
them the size and the complexity of the project if it’s a very small small
project relatively simple probably doesn’t justify some of the more intense
models of legal involvement the nature the legal issues that are likely to
arise so an example of that would be if you’ve got if you’ve got complex
constitutional issues so at least two maybe three of the schemes I’ve worked
on a lot of the schemes I’ve worked on have been in the environmental space one
or a key constitutional power underpinning that scheme might be the
External Affairs powers engaged by various international conventions that
provides in many cases quite a complex set of issues to underpin this game and
so more intense involvement by OGS is probably justified and required the
model departments choose might also depend on
the experience of the instructing team in dealing with legislation again this
it is touched on that point I think the less experienced the instructors in
dealing with legislation the more likely you are to need significant input from
the lawyers you finally you know they might do a first pass at the drafting
instructions interrogate them before they get to OPC and of course cost will
influence the choice of model in the time remaining I thought I’d touch on
two themes to consider I guess when you’re choosing a model in them when
working and designing and working on a legislative project in my view there are
there are very very significant benefits in having continuity of the legal team
or the individuals in a complex project my view of those models I mentioned
before which are those model I’m sorry which precisely of those models you
choose that perhaps less important than the fact that you have continuity of the
particular individuals involved and really I guess I’m looking at the the
the the middle three whether they’re whether the law is embedded in a policy
team whether they’re part of the in-house team or whether they’re on some
sort of virtual circum and arrangement I think it’s probably less important than
the ongoing involvement the two key ways in which I think this really assists
both the end product and the process I think it contributes to the robustness
of the legislation and it also assists in communications the the ways in which
can contribute to the legal robustness I think is depending on the project it can
be useful if not almost essential to have a legal advice at the design stage
even before the instructions are issued so again I guess from my perspective as
a constitutional lawyer the constitutional basis of the scheme can
really influence the design and really those issues need to be thought through
before you even get to OPC an example of that might be you come the
the department comes up with its preferred policy then goes to OGS for
constitutional advice the result of the Aegeus advice indicates that actually
there’s very little or limited constitutional powers or that there’s
large gaps in the constitutional coverage you might at that stage decide
that a referral powers from the states is the way to go obviously that has
significant design and timing implications and would would require
significant import from from from the lawyers the other ways I think it can
contribute once I guess the processes started is if you’ve got the same or
involved in reviewing in advising on and reviewing the legislation I find from my
own experience you are far more effective at spotting issues I think
there is limited value very limited value in and Peter touched on this as
well in giving a lawyer a complete piece of legislation particularly that a
longer more complex one and saying what are the legal issues what are the
constitutional issues are your eyes glaze over as you read it page by page
no offense to my colleagues off with safaree counsel but you just simply
don’t you don’t have enough understanding of what it’s designed to
do where the pressure points are likely to be where the challenges might come so
in my experience if I review a bill that I’ve worked on while obviously I will no
doubt miss issues I’m more likely to spot issues and concerns and that might
be constitutional I mean administrative law issues it might be how has
decision-making going to work under this bill those sorts of perspectives I think
that having a lawyer involved in in a project almost no matter what their
expertise they’re they’re more likely to be able to suggest opportunities for all
good points of which to draw in always with different expertise so for example
if I’m working on a bill and it’s got criminal offense provisions I tend to
say you going to test those we look come off
de Pepe you’re gonna test those weather or for civil penalties you’re going to
test those an enforcement lawyer with the lawyers of the regulatory agency
there’s it’s a long time since I’ve done the civil penalty work so I don’t regard
myself was in far from an expert in network but I will tend to recommend a
client they consider those things having said that so I think continuity is
really important as he can probably tell in a in a large and complex project that
justifies those sorts of resources but I would mention that I think that there is
value for lawyers who haven’t been involved in the project doing some
advice work on legislation in my current role agriculture we’ve suggested a few
times sort of stress testing exercise which might might involve coming up with
a few scenarios or a few key legal issues where the bill really needs to
work you really need to be able to take regulatory action or you need to ensure
that these complex provisions do work extraterritorially as you think they do
and I have certainly found it valuable and I know in at least one case the OPC
drafter has when we drafted up we I drafted up the request for advice but it
went back to a colleague who’d not seen the bill before so I think there is a
risk with any project that you get too close and you stop saying the issues
thankfully they came back and said it did work I guess you’ve got to be fairly
robust and communicate to your clients that when you do that might come back
saying it doesn’t work but I think there is real value in times in involving
lawyers who who haven’t heard that close involvement the other the other benefits
of continuity has touched on and this really reflects my experience as well is
the ability have direct communication between OPC and the lawyers and the
lawyers and the instructors and a three-way communication I think you get
better solutions that way also just think you get faster and much more
effective advice for example if I’m working on a on legislation and there’s
square bracket comments IPC you know has constitutional advice on this issue I’ll
almost always ask if if it’s okay if I call why busy but the
instructors president or nauseous they prefer to talk through the issue because
OPC are good constitutional lawyers and their own right they’ve raised the issue
for a reason they might even have a possible solution up their sleeve
but that’s something that tends to come out when you have that community that
discussion rather than rushing and similarly if I’m communicating directly
with instructors policy people the in-house lawyers I get a better feel for
what what the real what the real issues are what might work I think when the
three of you were involved though I perceive the lawyers and the instructors
you can often brainstorm a better solution than one particular party can
come up with the other theme I thought I would touch on is the importance of
capturing knowledge and skills developed on a project and that applies to both
policy / instructing skills and and policy and the policy deep I guess
understanding policy for this game as well as the legal skills but I sort of
think this falls into sort of two categories one is capturing the
documentation I referred on the slide to drafting instructions and explanatory
materials but I should also add of course advice on on scheme making sure
that it’s captured and it’s boring but filed and put on databases so that’s
accessible obviously OGS has its own databases for doing that but in-house
areas do – capturing drafting instruction in South kisses lawyers
sometimes we think oh you know what you don’t need to look at the drafting
instructions they’re not a legitimate extrinsic aid to interpretation but I
have had the odd occasion where the policy area has been able to locate the
drafting instructions and we’re not being asked to advise on future
amendments and that’s given me a level of comfort that I understand why what
the underlying driver was for a provision in the first place and he’s
more confident saying I think you can get rid of it now or whatever whatever
the question I’ve asked the but perhaps more importantly that and that of course
is the explanatory materials and I guess the thing I wanted to say here was you
kind of get one shot at putting together materials that
you can legitimately use a lawyer can legitimately use as an interpretive tool
going forward and the courts will refer to varying extents so I guess it’s to
say I think it’s important to have the right people doing them and invest
enough time and resources in doing them and ideally that’s both the right policy
people and the right legal people because I think it’s a bit of a
combination policy people understand why the provisions were put in and legal
people can make sure that the e/m is not technically incorrect which does happen
on occasions so I guess it’s by way of saying please don’t give it to the new
grad which is not an uncommon thing and I understand the pressures I’ve worked
on projects I know that often you know there’s literally days between
finalizing the bill and having to have it up in the minister’s office or
perhaps s that’s generous timing sometimes it’s less than several days
but that just means you you have to try and manage that project as you go along
and one other tip I would have is to keep a log of issues as you’re working
on a project so it’s not uncommon for OPC to say instructors police say this
explaining this and explanatory materials or OGS to say from a
constitutional perspective it’d be really good if you could explain here
the connection between this and you know the relevant international conventions
that will assist you there’s a constitutional challenge it’s really
easy in the hurly-burly of finishing a project to you know forget about those
issues you’ve got 50 drafts you don’t want to go back through them finding
each issue you were supposed to put in their hands so it’s just a practical
thing to think about the other aspect of that is capturing the expertise of
individuals both policy and legal when you when you’re setting up a team
ideally you might want to think about are these people still going to be
available to advise on and work on the implementation of this legislation in
the future or if we’ve brought in a contractor they kind of go succession
and sort of staff planning issues you know if a whole new regulatory schemes
been set up and I’ve worked on a few haven’t always passed some should some
key staff both legal and non-legal actually move into that regulatory and
administrative function so there’s some corporate knowledge
another way of dealing with that which which with recently as I was paired with
a less experienced lawyer from the in-house area she’s very good lawyer if
you hadn’t done that asleep project that gave an opportunity for skills transfer
but it also means when I move on back to IGS there’s someone in the in-house area
who was involved in this project and I think consider opportunities seminars
workshops just face-to-face meetings to pass on some of that knowledge between
the team that we’re instructing and advising on it and the team that now
have to implement too often I have seen it be very little overlap in connection
between the two and that makes implementation harder
so in conclusion they’re just a few select issues I guess based on my
experience to think about when you’re managing a project and deciding what
model here instructors but also what model for your legal input I think it
can lead to a better designed project and more robust legislative scheme and
hopefully a smooth implementation as well so hand over to Simon right so I’m gonna give a perspective
which I suppose draws in the policy point of view but to begin with I might
give you a little bit of context about where Treasury is at because that really
shapes you know where these observations have come from
so Treasuries o pcs biggest customer in the 45th Parliament so far we’ve
introduced 109 bills and that’s about 3100 pages of legislation so to give you
a sense of scale the next three biggest departments which are finance Social
Services and the Attorney General’s we’ve done about half that in terms of
the number of pages so we’re kind of a factory for producing primary
legislation we also produce a lot of subordinate legislation we’re also
dealing with quite a range of issues so we look after the tax system we deal
with the regulation of corporations and the financial system and financial
services and banking and insurance and life insurance and superannuation and
various other bits and pieces as well so there’s a lot of kind of diversity and
complexity going on in what we’re dealing with so that volume isn’t simply
replicable work it’s it’s quite complex in many cases so this is sort of sense
of range and scale and that has given us a lot of opportunities to think about
the way we do what we do and also the aspect that often gets neglected which
is around the delivery aspect of getting through legislation so that that’s a bit
of context about what Treasury does the the thing I think that’s instructive
always to remember though is that legislation happens through a
complicated set of relationships it’s not kind of meet sequential activity but
this sort of interaction even for relatively simple measures
that means that there are all sorts of considerations and consultations and
service engagements and things like that that are going on to get a piece of
legislation either into the Parliament or through the Executive Council or a
instrument to be made by a minister this this is the sort of perspective the
preak opinion kind of perspective that the law design office has which is that
we sit in the centre of everything and and and the rest of you all kind of
rotate around us hopefully but what we’re trying to sort of articulate when
we think about these things this way is that when you’re planning a piece of
legislation and thinking about what to do that these kinds of considerations
have to be borne in mind from the very beginning and not as a sort of
afterthought you know I’ve been given this job to do let’s focus on the
content and get on with solving the problem because that’s what the minister
wants so the way sorry the what the way that we think about it is what we want
to do is deliver the best possible legislation which achieves the
government’s policy intent and timeframes while minimizing risk and
complexity and taking a whole of system perspective whatever system that might
be in the Treasury context there’s a few things to sort of pull out of that that
statement we talked about best possible legislation where when we think about
that what what we’re thinking about is what can we do in the time that we have
to do it rather than what is the best piece of legislation we can produce
given unlimited time and resources and then the other kind of lodestar that we
all have to bear in mind is what does the government actually want to do
and when does it want to do it by in Treasury we run a very complex process
of thinking about the priority of legislation we we deal in what we call
measures so we don’t we don’t think about them in terms of bills sometimes
we’ll have half a dozen or a dozen measures in a bill and other times we’ll
have a measure that covers five or six bills because we’ve got revenue
imposition bills and things like that that are necessary but we’re engaged in
a continuous process of thinking about when when are things necessary when does
the Parliament one or when does the minister want these things to come
before Parliament and how does it sit in the broader agenda that the government
has around in our case kind of economic policy and regulation going back to the
point I made before about planning and thinking about these things from the
outset the minimization of risk and complexity is critical to what we’re
trying to do the Corporations Act nowadays is about 3,600 pages long no
one is pretending that that’s not a complex piece of legislation the tax act
so multiples of that we’re trying to think about these things from a system
point of view rather than applying more and more band-aids to already complex
systems now it may be hard to distinguish between whether or not we’re perspective but it is something that we
try to inject into what we’re doing from the outset and and think about the way
that these things are delivered in terms of the risk in the delivery process
itself but also the risk to the system and how it operates in the longer term
from a regulatory or administrative point of view and these are sort of
critical things not only for the people in Treasury who think about legislation
and how to deliver it but our policy colleagues as well so what are we what
do I mean I personally think that what what successfully needed to implement
policies through legislation is that collaboration is
to that model so where we’ve got kind of highly transactional demarcated
structures than that that really does generate risk and Peter talked before
about situations where instructions are sort of passed through without any real
appreciation of what the issues are or the complexities involved and that
really just sort of back loads the problem onto tablet PC to trying to work
out what is going on and what is needed these you know this observation applies
to anything else we have similar views about the way that Treasury deals with
revenue costings or development of our regulatory processes around foreign
acquisitions the kind of lack of collaboration leads to gaps relates to
duplications that then lead to problems the other thing that is critical in
getting these things right is engagement between the different parts the
different actors in the system from from the earliest point and that’s not just
about the policy aspects of what we’re doing but the actual delivery process
and making sure that there is a real sense in which people are part of the
process discussion as well as the content discussion to ensure that what
is achievable is realistically managed and that expectations and understandings
about timeframes and what will be done in a particular time and when things
will go out to consultation and when instructions will go to OPC and when OPC
will get those things back to you and what the minister is dealing with will
all be managed in a way that everyone you know kind of legislative development
paradigm is thinking about and aware of in Treasury as I outlined before we’re
dealing with quite a diverse set of sophisticated schemes and the views of
regulated communities are critical to that
and and then there are obviously broader perspectives that come in from other
interested groups and they’re sort of public generally that need to be
integrated into the process from the outset part of the challenge when we’re
dealing with a volume is that that time for consultation and engagement around
the development of legislation can slide and and so that there is a sense in
which were simply churning through it and and getting it into the Parliament
without necessarily finding enough time to consult that that is something we’re
continually working on and trying to improve but when those things are absent
from the process the risks surround the development of a piece of legislation
being what the government actually intended and can deal with when it
actually gets into the parliament much much greater so this is a bit of a
list I won’t go through each of them in detail but one of the things we’ve been
thinking about a lot in Treasuries in Treasury’s law design office is how
policy areas can get the best results out of a legislative development process
so some of these are fairly obvious propositions like whether legislation is
actually actually needed and what the other options might be I’ve talked a bit
about the engaging one of the things that people can perhaps be a bit averted
to is this sense that there is a process and that they need to think about that
people tend to see these as constraining and and sort of coercive exercises
rather than actually being a way of assisting in delivering a legislative
project and getting achieved in the timeframe that’s expected and using
those sorts of tools around project management and deadlines as really
signalling devices to to allow for the raising and escalation of issues and
managing those in a timely way than what can happen which is that all
of the issues coalesce at the very end because there are a set of micro
decisions made about a piece of legislation in development that then
lead to a point generally just before you hit the minister’s office that
you’ve got to sort it all out right at the end and that’s problematic the other
thing that policy areas can struggle with and this is certainly a real issue
where you’re dealing with major complexity in the regulatory and
legislative schemes that you’re administering is that sense of what the
policy is actually intended to do and keeping that very much at the forefront
of the development development process is critical to success otherwise the
risks drift and and a lack of focus become very real coming back to thinking
about the way that policy areare approaches the legislation where we have
a demarcated structure where they say here’s the policy idea now just go and
make that into an you know 50-page piece of legislation please that that is one
very difficult to deal with but secondly it is quite difficult when the policy
area can focus on the content without really thinking about the principles
underpinning what it is they’re trying to do and how they relate to the
intended a and whether the policy really fits with what is in the existing scheme
or not these these sort of things can then come back and create more and more
problems and we have certainly found that in many cases in dealing with OPC
over the years where a lack of clarity uncertainty about what policy is meant
to do and how to actually get to the result leads to very significant issues
in the way that legislation has drafted which which really leads into this
question about whether people are focusing on the substance or the form of
what they’re doing too often there can be a focus not so much on what’s
intended to be achieved so much as trying to look at the piece of
legislation and think about whether that works and
and then providing lay drafts and all those sorts of things that drive draft
as mad so really kind of getting to that sense of the intent and how the policy
is being executed rather than getting caught up in the precise words and part
of the job of an instructor is really to think about and manage those sort of
sensitivities so that we don’t get bogged down in these kinds of problems
and then of course the the main thing that any instructor and OPC want is that
the policy people actually know because the capacity of any of us to fill in the
gaps is very challenging so to talk more about the way Treasury doesn’t I’ve kind
of adapted Peters model a bit we have developed this concept of law design so
we don’t think about it just in terms of instruction what what we are trying to
do is create a discipline which is about yes having good people who are very
capable at providing coherent and clear instructions to RPC but are actually
taking a much broader perspective about the legislation and the legislative
schemes that they’re dealing with and drawing together the legal perspectives
and the policy perspectives and the views of regulators and in the Treasury
portfolios ISM shores the case elsewhere we have some very big and sophisticated
regulators who have far more depth and knowledge about the way the legislation
works in practice but so the law design office in Treasury is meant to fulfill
this kind of intermediary function and it’s a multidisciplinary activity it’s
got lawyers in it it has economists it has all sorts of other people and we
also have a unit that’s focused on legislation management and dealing with
the process issues which is not just about the kind of transactional
dimension of getting something ready and into the parliament or that’s very
important part of its role but also looking at the entire program and how it
fits together and thinking about project management for these measures
and ensuring that everything is proceeding and being managed and risks
are being identified and dealt with in a very timely way when we think about the
skills we want for people in our area we’re not just after the fact that they
have a technical capacity around legal things or a particular policy discipline
but that they are also bringing sensibilities to be about project
management and consultation and collaboration and all of the things that
we want them to do to ensure that we’re in a position to try and give the
government the best legislative products that we can within the time frames that
they want to achieve we don’t act though as the sole intermediary with OPC so
there are two other dimensions in Treasury which is we we deal with a lot
of costing analysis which is around revenue measures which are a very big
part of our business and then there’s the policy analysis as well but getting
back to the point I was about to make we’re not the the sole intermediary we
do allow and try to encourage our colleagues to engage with OPC but we
help manage an intermediate that process so that OPC and where that works very
well given the complexity of what we’re dealing with it is I think perhaps Peter
and Tony can disagree but it seems enormously valuable to getting the right
kind of outcome for the legislation because for the reasons that Suzy and
Peter have talked about having those different perspectives and that greater
depth around particular issues particularly given the technical content
of what we’re dealing with with the tax law or the Corporations Act or any
number of our other regimes we don’t have all of that sitting in Treasury so
the way that we think about it is it’s more than just instructing it’s this
concept of law design it’s meant to be an integrated process I won’t go through
all of these things but what we’re trying to do is make sure that we get a
legislative product that is managed well in the delivery
and is integrates all of the perspectives that need to be brought to
bear in ensuring that that legislative product one meets the government’s
policy in ten but also it does so in a way that it’s mindful of the legal
constraints within it which within which it operates and the broader kind of
regulatory and administrative and you know economic context in which it is
going to work as part of the statute book in the future the critical thing
for us is having that multidisciplinary perspective that’s brought to bear on
these things and the law design office is meant to create an opportunity for
that to happen in a more formal sense because as I said at the outset
conceiving of legislation in a kind of neatly sequential and orderly way is a
fairly I think naive but also risk creating way to consider these things
and so we’re trying to drive a model where we try and integrate these things
and have something which can meet the needs of all of the different actors in
the process at the same time as creating a sustainable and effective way to
deliver a very large thanks very much thank you to our speakers I thought
we’ve gotten some microphones coming around so we might invite questions from
the floor to any of the speakers I’ll ask you if you wouldn’t mind to identify
who are where you’re from and which there you’d like to do that the question
to in this silence hi my name’s Zoe Cameron I’m from common a prime minister
and cabinet I’ve got a few questions if anyone else has any but firstly I wanted
to ask Peter you mentioned early on the importance of training for instructors
and having really skilled instructors and I’d just be interested to hear a
little bit more from you about how you see that might happen if you know of
areas that do it well and and how it’s done well apart from the obvious of kind
of doing it multiple times and doing it over a long period of time are there
other ways that people that are new to the instructing process can can be
trained I think so there’s a PC run legislation process courses which basics
course an advanced one and I think for anyone who hasn’t done instructing
that’s almost a prerequisite like it really does give a yeah an overview of
the whole process and draw out a whole lot of things that are not obvious I
think one of the things about the legislation process is there’s a whole
lot of stuff that is a counterintuitive or or just isn’t something you’d come
across in your normal day a number of departments have built on that I think
Treasury do have some programs where they deliver – yes fairly structured
training on aspects of instructing and policy development as Simon said they’ve
got a slightly different prices so they probably try and try to broader range of
things I’m certainly aware other departments
some have similar sorts of things many years ago when I was with the tax office
even at that stage they had a instructing program which I think ran
for about a week and people did actually a practice instructing thing as well so
I think there’s certainly a lot of potential for agencies to do that and I
think again probably the this group is one that could actually share some
information about what other other agencies are doing I think another
aspect that is very important is sort of mentoring arranged but really the best
way to learn this is is on-the-job really do it working through a project
and if possible having a senior person where who’s experienced that work with a
less senior person and so develop them to have that I think again that’s where
it’s probably a bit easier in the larger departments like Treasury that have a
constant flow of legislation you can do that more but I think even even some of
the departments we say that have fairly large leadership programs it doesn’t
seem to be any or doesn’t see very a great attempt to actually for each
project have an experienced person working with a less experienced person
but I think that’s a another way so as so there’s the probably three I’d give
her the courses a PC run which at a relatively basic level departments
running their own and a mentoring sort of process Thanks you might want to hold
the microphone my name is Elizabeth I’m from the
Department of Home Affairs my questions for Simon you’ve talked about a model
that’s a bit different to what exists elsewhere and their importance of the
law design area in that and you spoke about what it’s trying to achieve could
you give a bit of insight as to how it achieves it other than just having a an
area that sole focus is to assist in the coordination well I could probably talk
about that some links but I mean part of it is to having a kind of area which is
not an uncommon feature in departments that are focused on the task of
delivering legislation and the the added bit that I think we’re focused on is
around the kind of building of structures to foster collaboration
across the departments of government and and also around the mechanics of doing
so so rather than relying on a lot of kind
of good luck and goodwill and people’s good memories to get things done we’re
having a where we’re implementing a much more structured approach to project
management and delivery which is really focusing on the there are kind of two
aspects of this there’s the process and the content and the the default often
particularly with professionally minded people is to focus on the content rather
than the process and what we’re investing a lot in is the process
dimension to try and improve the way that this flow is managed five or six
years ago Treasury had no central management of legislation it still had
similar volumes I know that cause enormous headaches to OPC caused
enormous headaches and Treasury as well and so we’ve seen what the alternative
looks like and it’s not very pretty so what we what we’re trying to do is
and so working on and achieving some success in getting there is is really
injecting a degree of discipline and focus into the process of delivering
legislation across a diverse range of issues rather than kind of hoping for
the best hi I’m Francesca Neely from
attorney-general’s I’m just interested in how OPC prepares drafters to engage
with these different models of instructing and is that through say
having some drafters been working on legislation in particular portfolios
where there will be one model or you know because it seems to be the big
value out of OPC is that they are able to engage with policy and legal and
legislation areas how do you prepare your drafters to be able to do that well
as you know we work fairly much on an apprenticeship training model so we get
in people were sort of a few years experience doing something and then
train them to be drafters I think we would see the ability of work with these
different models is one of those one of the range of skills that we train people
so they obviously have to learn analysis of policy the production of text the
Muir’s of rules we have but also how to work with different instructing
arrangements so when people come to us they tend to move around teams fairly
regularly so although we have appeared arrangement with an SES draft and an
assistant rafter we change those teams regularly which means through that they
will see different instructing arrangements also different ways senior
drafters work with them our senior drafters are expected to be able to work
with pretty much the whole statute book Victor Jara exception and pretty much
whatever instructing arrangements they’re provided with so again it’s that
flexibility that the senior drafters would have developed over the years
which they’re then expected to pass on to the assistant drafters about the only
area we have in relation to specialization we have a number of
drafters who predominantly do Treasury legislation so within that there’s some
who double we do corporations have suffered so maybe predominately
do tax we also find that some drafters from time to time will have a particular
subject matter interest so we’ve got one person who seems to do all the social
security stuff at the moment one person who loves doing the communication stuff
so to an extent the drafters do do work in particular areas but the drafters are
specialized their into expected to be able to work across the full range so I
think the way that the draft has learned to to work with the different teams as I
say through that apprenticeship star which exposes them to the the full range
of both legislation we expect them to deal with and different working
arrangements that we expect them to deal with and it’s really I supposed to me
our perspective it’s a matter of having worked out how a particular project is
working you need to work out where the bits or where the weaknesses are that
need to be filled and how you can suggest that those be filled so if we’ve
got an instructor who if you’ve got a pure policy person with no legal
knowledge will often suggest that they either get their little error involved
or engage AGS to provide some assistance in that sort of area so we try and work
out where the weaknesses are and how we can work around those for the particular
project I think for the perspective of a senior driver who sort of goes into a
new project almost the first thing you do is try to identify what resources the
agency has and how its structuring its function and it you almost get to a
point where you’ve seen every possibility under the Sun and you’re
just trying to work out how the arrangements are in in this case and
then you’ll actively decide who needs to be at the table for example when
decisions are made what might be the best way of managing this process who’ll
need support because they perhaps haven’t got much experience and they
might need to know that these are the processes that you know legislation
approval will follow for example so there’s a really quite an active process
for the drafters of working out where the skill set is where there are
gaps that need to be filled or support that needs to be given and in every case
you almost or a bespoke project management because each agency organizes
itself so differently thanks this questions for Suzy I was really taken
with what you said about having only one chance to develop good explanatory
material and I was wondering if you could say a little bit more about what
you think the key features of good explanatory material I guess for me so I
mentioned that log of issues I think that’s really important obviously that
that’s about ensuring particular points that are made by the lawyers or the
drafters working on the extrinsic materials are picked up I don’t know if
you’re allowed to do this anymore under the legislation handbook so this might
be an unhelpful suggestion but I did I have seen projects where I’m like no the
answer is better than me where explanatory materials give more of a
narrative rather than a clause by clause even if you’re not able to do that I
think a bit of a narrative at the beginning that tells the story and that
connects the provisions rather than in addition to or instead of the items item
approach fairly basic point but one that you still see probably the bulk of Ian’s
do just you know regurgitating restating paraphrasing the provisions is in my
view almost no assistance yeah so that’s why that’s why I mentioned that the mix
of skills because bringing in lawyers had nothing to do with the scheme you’re
not trying to get a good extrinsic materials there either I’ve seen that
done and sometimes that’s simply dunk there’s no resources so get to the end
of this game you bring in three sick on days and you say here’s the bill write
that am your going to end up with something that might be technically
correct but actually pretty useless from both the policy and an interpretive
perspective so I in an ideal world you would have
it can be drafted out of recently junior-level I don’t mean to disparage
the grads in the room but I just my point was it’s got to be someone who’s
been involved in the project I think senior engagement though
including the the extrinsic materials is really important and appropriate input
from the lawyers and if you haven’t had lawyers on the project I think that’s
where I’ve seen this done Wehling in-house areas having an in-house area
which does you know look at and interrogate the extrinsic materials
because OPC as you know I have no role in that so yeah one final tip I would
give is be careful about your editorial process so I was asked to write the the
particular parts of extrinsic materials which are about the constitutional basis
provisions because they’re really tricky and so I brought some quite good text
which talked about the quarantine power supporting the biosecurity Act and the
editors substituted quarantine for biosecurity which is a completely
different thing is not a power under the Constitution as you probably know so two
years later when I went to use those extrinsic material as a site so you know
the even down to the editorial you know things can slip up at that at that
moment some did you want to add something yeah we we do a lot of
thinking about this so one of the challenges with extrinsic materials is
that you’ve got quite a few audiences to deal with so one is just members of
parliament but they’re also the scrutiny committees there are there’s the
judiciary and other people who use it in that sense and then there’s the broad
massive kind of regulated communities and people like that so you’re trying to
talk to a whole bunch of different people about the same thing in different
ways so that is one of the real challenges and yeah it can be a reason
why people tend to stick with a fairly safe descriptive approach but I agree
with Suzy description of the legislation’s know much better than
reading legislation so why bother doing it so this sort of concept of what an
actual explanation is and how to do that in a meaningful way is really important
one of the challenges we have is where a lot of this stuff and maintaining
consistency across the is is an important issue for us we have pretty
regular interactions with the scrutiny committees upper Parliament House to try
and ensure that we’re meeting their needs and and getting that kind of
import and you know it’s a work in progress we’re not try to pretend it’s
perfect but it is a very challenging thing to get right because you try to
write for your audience the difficulty here is your writing for about four or
five of them and doing so in a fairly constrained format the other thing I
would say about it though is it is a very good way to train people to write
well and there are there is the potential to be innovative about these
things as well so in the explanatory memorandum that I probably had most of
our hand in which was for the carbon pricing legislation in 2011-12
we included diagrams and lots of tables and all those sort of things to make a
complex system more tractable for the reader and that’s a real challenge for
us in surgery as well we’ll have tax bills that will be two or three pages
long but require X memos through 60 pages to explain how they work and that
is you know a real issue for us to manage but we’re not the only people in
this boat and the challenge is that there are a lot of different approaches
adopted across the Commonwealth some pretty archaic might just add one more
thing to that which is from the based on the projects I’ve worked on that’s why
I’m an all quiet I think the Treasury model I’m quite
attracted to that and I’ve seen to a less extent less the law design but that
legislation function actually being centralized in Department and are
recognized as a skill set otherwise the EMS always written by someone who’s
never done any and before and a perhaps cleared by a legal area who had nothing
to do with the project that sub-optimal it’s I think that demonstrates that the
extrinsic materials are part of this sit as well in my view is there anybody
else with any questions David ball from the a Triple C edge
people say a question for Simon he said at the start of your talk that one of
the things that Treasury looks at is sort of the broader systems type issues
that a particular piece of legislation might rise I’m wondering if you could
unpack that a bit then give some give some illustrative examples well probably
the best example is around the tax system so I I won’t pretend that any of
our schemes are perfect they’re large and complex and sprawling and they
reflect various sort of interests and feds of governments throughout the years
but one of the things that we’re trying to do by drawing together that the law
design function is try and minimize that propensity for sprawl and complexity in
the legislation part of the difficulty is that once you’ve got a large scheme
up and running it would be nice to sort of sort of every 10 or 20 years sort of
pull it all apart again and start again and certainly when you read parts of the
Corporations Act or even the Competition and Consumer Act nowadays that
temptation is a strong one but we can’t just sort of park these things and sort
of beer away and produce a perfect product they’ve got to work in the real
world in real time what we’re trying to do and where it’s most developed is in
relation to tax is ensure that when we make changes we’re not creating knock-on
effects and problems for the way the system operates in practice and they’re
creating potentials for loopholes and avoidance mechanisms and all of those
sorts of things so net having that system-wide perspective is really
important and for us to do that the relationship with the relevant
administering agency is critical so with the tax office we have a very long
established and quite effective protocol around the way that we deal with them on
legislative issues the tax office is an organization of nearly twenty thousand
people so it has resources to dedicate to this task the way that smaller
agencies may not but they have centralized functioning that thinks
about these things from their point of view but also coordinates the
consultation across the tax office to ensure that the sort of various
practical perspectives are brought in we’re developing a similar mechanism
with a secured president and and the idea there is that we’re not producing
changes to these laws in isolation from the broad context because the damage
that could be created by doing that is sort of manifestly because we’ve seen it
happen in the past problematic not only for the administration of that piece of
legislation but in some cases for the economy as a whole
thanks Simon I’d like to thank our speakers I think we might wind up
today’s seminar there it’s a significant effort to produce a paper in the middle
of a busy schedule so I’d really like to thank our speakers today and thank also
for the participants for attending and useful questions because I think the
questions and answers are often some of the most useful parts of these seminars
so thank you very much for attending and participating you

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