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About the PCO

Briefing Notes for the Attorney-General on the

Role and Operations of the
Parliamentary Counsel Office

October 2005

CONTENTS

1 Constitution and functions
1.1 Constitution of the Parliamentary Counsel Office
1.2 Functions 1.3 Funding
1.4 Annual report of the Parliamentary Counsel Office for the year ended 30 June 2004
1.5 Statement of Intent for the Parliamentary Counsel Office for the period 1 July 2005 to 30 June 2008
1.6 Review of the resourcing and operations of the PCO
2 Organisation
2.1 Organisational structure
2.2 Governance and organisational overview
2.3 Law Drafting Services 2.4 Access to Legislation 2.5 Conditions of employment and remuneration
3 Relations with external agencies
3.1 Rules Committee
3.2 Law Commission
3.3 Drafting assistance to Pacific Island governments
3.4 Legislation Advisory Committee
3.5 Overseas drafting offices 3.6 Commonwealth Association of Legislative Counsel
4 Other
4.1 Regulations Review Committee Digest
4.2 Legislation course (Laws 323)
4.3 Bill Sewell Memorial Prize
4.4 New Zealand Centre for Public Law conferences—The Primary Functions of Government
4.5 Conferences and publications
5 General comments
6 Appendices
1 Report of the Parliamentary Counsel Office for the year ended 30 June 2005
2 Statement of Intent for the Parliamentary Counsel Office for the period 1 July 2005 to 30 June 2008
3 Organisational structure of the PCO
4 Organisation chart of drafting teams
5 Michèle Asprey’s report: Review of the PCO’s Current Legislative Drafting Practices
6 PCO Reprints policy and reprinting programme for 2005/06

1 Constitution and functions

1.1 Constitution of the Parliamentary Counsel Office

The Parliamentary Counsel Office (PCO) is constituted as a separate office of Parliament by the Statutes Drafting and Compilation Act 1920. The Act provides for separate divisions to undertake the drafting of legislation and the compilation of legislation.

The Act provides that the PCO is under the control of the Attorney-General, or if there is no Attorney-General, the Prime Minister. The reason for providing for the Prime Minister to have control of the PCO was to avoid the effect of the powers of the Attorney-General being exercisable by the Solicitor-General if the office of Attorney-General becomes vacant.1 On the introduction of the Bill in the Legislative Council, the Attorney-General, Sir Francis Bell, referred to the fact that the PCO was being established as an office of Parliament “and should be removed from the Public Service”, the objective being to emphasise its independent role.

The PCO is not part of the Public Service under the State Sector Act 1988. It is thus not under the direct control of the State Services Commissioner. However, the PCO is part of the State services within the meaning of the State Sector Act and, as such, is subject to certain provisions of the Act. These include sections 57 to 57C of the Act, which relate to the setting and enforcement of minimum standards of integrity and conduct.

1.2 Functions

The Statement of Intent for the PCO for 2005/08 states that the outcome of the PCO is contribution to parliamentary democracy under the rule of law.2 The PCO seeks to achieve this outcome in 2 ways. The first way is by ensuring that the legislation that it drafts, that Parliament enacts, and that the Executive makes in the exercise of delegated law-making powers, is effective, based on sound legal principles, and clear. The second way is by making legislation available to the public. This is reflected in the 2 principal functions of the PCO and the output classes of Vote: Parliamentary Counsel. These functions are the drafting of legislation and the publication of legislation.

Government Bills and Statutory Regulations

The PCO drafts Government Bills and Statutory Regulations. The drafting of Bills includes drafting amendments required by select committees and by Ministers at the committee of the whole House stage. The PCO also drafts other instruments such as appointments of, and terms of reference for, Royal Commissions and Commissions of Inquiry under the Commissions of Inquiry Act 1908, regulations under the Royal prerogative relating to medals and honours, the exercise of the Governor-General’s powers under section 406 of the Crimes Act 1961 (which relate to applications for the exercise of the prerogative of mercy), and certain constitutional documents.

Local and private Bills

The PCO examines and reports on local Bills and private Bills. This involves providing drafting assistance to local authorities and their legal advisers in the case of local Bills and to the promoters and their legal advisers in the case of private Bills. In most cases, this involves providing drafts or redrafts of Bills.

Members’ Bills

At the direction of the Attorney-General, the PCO provides drafting assistance for Members’ Bills. The practice of Attorneys-General is to direct the PCO to provide drafting assistance for a Member’s Bill if it is reasonably clear that there is likely to be sufficient support in the House for the Bill to pass. The Prostitution Reform Act 2003 is a recent example of an Act drafted by the PCO under a direction from the Attorney-General. The PCO can expect to receive directions to draft up to about 5 Members’ Bills a year.

Publication of legislation

The second function of the PCO is to make legislation available to the public. Under the Acts and Regulations Publication Act 1989, the Chief Parliamentary Counsel is responsible for the publication of—

The PCO publishes copies of individual Acts and Statutory Regulations. Acts are generally published within 10 working days of assent and Statutory Regulations are published within 4 days of making.

The PCO also publishes annual volumes of Acts and Statutory Regulations. The annual volumes are published in the first half of the following year, usually in April or May. The PCO expects, in a typical year, to publish up to 5 volumes of Acts and up to 6 volumes of Statutory Regulations. Seven volumes of Acts and 6 volumes of Statutory Regulations were published for 2004. That is a record number.

The PCO also makes copies of Government Bills and Supplementary Order Papers available for the House and for purchase by the public.

Copies of Acts, Statutory Regulations, reprints, the annual volumes, Bills, and Supplementary Order Papers are printed and published under a contract with Securacopy, a trading division of the Blue Star Print Group (New Zealand) Limited (Blue Star). The current contract continues until 31 March 2006. Further details about the printing arrangements for legislation and the pre-publication work involved (undertaken under a separate contractual arrangement with Legislation Direct, also a trading division of Blue Star) are referred to later in these Briefing Notes.

Reprinting of legislation

The Compilation Division of the PCO has, since 1920, compiled reprints of Acts and Statutory Regulations with their amendments incorporated. Reprints of Acts and regulations are published individually in pamphlet form. Publication of reprints is discussed in more detail in a later section of these Briefing Notes.

Other PCO legislation publications

The PCO also publishes annually the Tables of New Zealand Acts and Ordinances and Statutory Regulations in Force and 4 interim indexes to the Statutory Regulations. The Tables are also available on the Internet at www.pco.parliament.govt.nz. It is proposed to cease publication of the interim indexes when the PAL Project is completed. A continuously updated electronic table will be published in place of the current interim indexes.

Public Access to Legislation Project

The Public Access to Legislation Project (PAL Project) is designed to improve public access to legislation. In addition to making legislation available in printed form, the project is intended to make it available free of charge in electronic form on the Internet from a database owned, maintained, and updated by the PCO on behalf of the Crown. The PAL Project is also referred to later in these Briefing Notes.

1.3 Funding

The PCO is funded by annual appropriation. The Attorney-General is the responsible Minister for Vote: Parliamentary Counsel.

In relation to the 2005/06 financial year, Vote: Parliamentary Counsel comprises 2 Output Classes that directly reflect the statutory functions of the PCO. These are listed below, together with the appropriation (GST exclusive) for the 2005/06 financial year for the 2 Output Classes—

Output Class—Law Drafting Services 2005/06 appropriation $8.365 million (52.7% of the Vote)

Output Class—Access to Legislation 2005/06 appropriation $7.517 million (47.3% of the Vote).

The appropriation for the Output Class—Law Drafting Services includes funding, approved as part of the 2004/05 budget round, to enable the PCO to appoint up to 3 additional drafters and related support staff.

The appropriation for the Output Class—Access to Legislation includes additional funding to enable resumption of work on the PAL Project following agreement with Unisys to resolve technical and commercial issues. The appropriation also includes additional funding to continue the programme for reprinting legislation in accordance with the PCO reprints policy and annual reprinting programme for 2005/06.

1.4 Annual report

A copy of the annual report of the PCO for the year ending 30 June 2004 is attached as Appendix 1.

1.5 Statement of Intent

The PCO will shortly begin the process of preparing its Statement of Intent (SOI) for 2006/09. This is now a requirement under the Public Finance Act 1989. A copy of the PCO’s SOI for 2005/08 is attached as Appendix 2. Previous SOIs have listed the strategic objectives of the PCO and priority projects relevant to each of those objectives over a 3-year time horizon. The PCO has made progress with some of these projects. However, many of them have not been progressed due to other pressures, particularly drafting commitments and problems associated with the PAL Project. The following are instances where progress has been less than satisfactory—

The PCO will consult with you in the process of developing the SOI for 2006/09.

1.6 Review of the resourcing and operations of the PCO

The Treasury supported increases in appropriation for the PCO for 2004/05 and 2005/06. However, in doing so it proposed that there be a review of PCO capability and resourcing. The Treasury’s concerns relate to continual increases in PCO funding and the fact that, in addition to drafting legislation, Parliamentary Counsel are increasingly being required to provide legal and policy-related advice to departments in the development of legislative proposals. It questioned whether the latter is an appropriate allocation of resources.

The terms of reference for the review (agreed with the Treasury and the State Services Commission) are to consider and report on—

The review has been conducted by Michael Walls and Richard Clarke, QC. Michael Walls is a business consultant and company director. He was formerly a commercial lawyer and Chairman of the partners of the law firm, Chapman Tripp. After leaving private legal practice, he was head of New Zealand investment banking for ABN AMRO. Richard Clarke is a Wellington Queen’s Counsel. He was a Parliamentary Counsel from 1974 to 1981. He has been a partner in the law firms Chapman Tripp and Rudd Watts and Stone (now Minter Ellison). Richard Clarke was Chair of the Legislation Advisory Committee from 1999 to 2004.

The review was based on 2 underlying principles. The first is that a single centralised law drafting office remains appropriate for New Zealand. The second is that the PCO continues to be funded by fixed annual appropriation and does not cost recover for the provision of legislative drafting services. Both of these issues were the subject of extensive review in 1998 by PricewaterhouseCoopers, who recommended continuation of a single drafting office for New Zealand and funding by fixed appropriation.


 

Withheld under section 9 (2) (g) (i) of the Official Information Act 1982

 

2 Organisation

2.1 Organisational structure

The organisational structure of the PCO is set out in Appendix 3.

2.2 Governance and organisational overview

In managing the PCO, the Chief Parliamentary Counsel is assisted by a management team comprising 2 Deputy Chief Parliamentary Counsel, a Manager Support Services, and a Management Support Coordinator. This team meets each week to consider issues affecting the PCO. The management team deals with matters relating to resourcing, annual budgets, staff appointments, significant operating and personnel issues, the development of policies and practices, accommodation, and significant operating and capital expenditure.

The 2 Deputy Chief Parliamentary Counsel have responsibilities reflecting the 2 principal functions of the PCO and the output expense categories. They are—

The drafting of legislation is undertaken by Parliamentary Counsel and Assistant Parliamentary Counsel. There are currently 29 full-time equivalent (FTE) drafters, grouped into 3 drafting teams. Each team is responsible for the legislation of a group of government departments and public sector organisations. Each team has a team leader who is responsible to the Deputy Chief Parliamentary Counsel (Legislative Drafting) for allocating drafting instructions, monitoring work flows, liaising with instructing departments, and staff supervision and review. The drafting teams meet regularly to discuss drafting issues. The drafting team leaders meet regularly with the management team.

The 3 drafting teams, including the Parliamentary Counsel in each and the departments and agencies for which they work, are set out in Appendix 4.

Two coordinators are responsible to the Deputy Chief Parliamentary Counsel (Access to Legislation) for the Prepublication Unit (which provides prepublication services for legislation in conjunction with Legislation Direct) and the Reprints Unit (which compiles reprints of Acts and Statutory Regulations with their amendments incorporated). A Publishing Systems Development Adviser reports directly to the Deputy Chief Parliamentary Counsel (Access to Legislation).

Four coordinators are responsible to the Manager Support Services (Julia Kennedy) for information systems, secretarial services, editorial services, and management support services. A Librarian, a Communications Adviser, and a Records Adviser report directly to the Manager Support Services.

The PAL Project is managed within the PCO by the PCO PAL Project Director (who reports to the Chief Parliamentary Counsel as project sponsor), a PCO PAL Project Manager, and a Project Administrator. A Steering Committee chaired by the Chief Parliamentary Counsel is responsible for the overall strategic direction of the project, and includes representatives from the PCO and Unisys, the Office of the Clerk, and the Inland Revenue Department. Two additional external members with IT project management and government agency experience are also members of the Steering Committee.

The PCO has key relationships with a number of other organisations.

The Parliamentary Service provides a range of services to the PCO that include accounting and financial reporting services, payroll and the provision of human resources advice, and the parliamentary core computing network. Service level agreements are in place to manage the provision of these services.

The PCO works closely with the Office of the Clerk and has developed protocols with that office. The PCO also works closely with the Legislation Coordinator in the Cabinet Office, whose role is to provide support to the Government of the day in developing, monitoring, and modifying the legislative programme, and with the Secretary of the Cabinet Legislation Committee.

The PCO fulfils its obligation to publish New Zealand legislation through a contract with Securacopy (a trading division of Blue Star) for the printing, distribution, and sale of legislation.

Pending the completion of the PAL Project, prepublication services for legislation are provided under a contract with Legislation Direct.

The Auditor-General is the auditor of the PCO. The Auditor-General has appointed Audit New Zealand to perform the audit of the PCO on his behalf. Audit New Zealand also undertakes the annual Departmental Internal Control Evaluation (DICE) review on behalf of the Treasury.

2.3 Law Drafting Services

Introduction

The drafting of legislation is perceived by some as a mechanical exercise requiring no particular expertise and where a unit of output equates with a corresponding unit of input. That is a complete misconception. A few considerations may be mentioned in this regard. Legislation is not drafted in a vacuum. It has to take account of existing legislation and the common law and be consistent with international legal obligations, fundamental legal principles, the New Zealand Bill of Rights Act 1990 and other important statutes, and the Treaty of Waitangi.

Drafting legislation involves translating policy decisions into effective, principled, and clear law. The challenge of communicating complex matters in an accessible way that avoids risk of misunderstanding is considerable. Judicial attitudes have an important bearing on the way in which legislation is drafted. Drafters need to keep up to date not only with changes in the law generally, but also with judicial trends in the interpretation of legislation.

Policy decisions are often high-level ones. Implementing them in legislation can result in the design of a legislative scheme that is often complex and involves several levels—primary, secondary, and tertiary. The interrelationship between these different levels presents difficult challenges for the drafter. Policy changes have to be accommodated. Select committees have significant influence on New Zealand legislation. New Zealand legislators have a “hands on” approach to legislation. Bills can be changed beyond recognition following their introduction. This contrasts with many overseas legislatures where Bills remain pretty much intact during their passage.

Drafting Bills and Statutory Regulations

The PCO estimates that it will, in any year, be required to draft between 60 and 80 new Bills and between 300 and 400 Statutory Regulations. It expects to examine and draft amendments to up to 8 local and private Bills. The number of Bills and Statutory Regulations is difficult to predict with any accuracy. The drafting of legislation is demand driven.

The drafting of a Bill begins once the Bill has been included in the legislation programme, policy decisions made, and drafting instructions have been given to the PCO. All Bills are drafted in accordance with the priorities assigned to them by Cabinet in the legislative programme for each year. The legislation programme enables the PCO to devote resources to the drafting of Bills according to their importance to the Government as reflected in the legislation programme.

The drafter will initially produce a first draft. Typically, this will involve discussions with the instructing department as the drafting proceeds to clarify issues, refine policy, provide for matters that have not been addressed, deal with changes in policy, and suggest possible alternative approaches. Legislation is drafted in the context of existing legislation, case law, international law, key statutes such as the New Zealand Bill of Rights Act 1990, and the Treaty of Waitangi.

Once a draft Bill has been settled with the instructing department, it will be sent for comment to other departments with an interest in the subject-matter. Their points and objections have to be considered and dealt with. Drafts of some Bills are being released for public consultation, eg, the Insolvency Law Reform Bill.

The drafting of Bills and regulations generally involves continuous revision. It is highly iterative. With large and complex Bills, the drafting process can take months.

When drafting is completed, the Bill is referred to the Cabinet Legislation Committee and then on to Cabinet for approval.

Parliamentary Counsel attend all meetings of select committees when consideration is given to amendments to Bills and draft the amendments required by those committees. Drafters will, if time permits, usually attend other meetings of select committees to hear evidence from key organisations. As with the drafting of a Bill, the drafting of amendments to Bills usually involves a number of revisions before amendments are finalised. They are incorporated in a “revision tracked” version of the Bill showing the proposed amendments in a single document.

Parliamentary Counsel always attend the consideration of a Bill at the committee of the whole House stage, draft amendments required by the Minister, and provide advice on drafting issues that arise during the committee stages. Parliamentary Counsel will draft opposition party amendments the Government wishes to adopt.

Parliamentary Counsel also check proofs of the “as reported” copies of Bills to ensure that all amendments made during the select committee have been incorporated. Parliamentary Counsel also provide advice on the commentaries that accompany “as reported” versions of Bills. The Office of the Clerk is responsible for preparing proof assent copies of Acts. Parliamentary Counsel also check the proof assent copy of each Bill to ensure that the Bill submitted to the Governor-General for assent incorporates all amendments made to it during the select committee and the committee of the whole stage, that section numbering is correct, and internal cross-references are also correct. This is an important, but time-consuming task. As a result of difficulties encountered with the preparation of the proof assents of the Bills divided from the Electricity and Gas Industries Bill in October 2004, the Office of the Clerk and the PCO are reviewing their checking procedures and will report to the Speaker when the review is completed.

About 40% of the drafting resources of the PCO is committed to the drafting of Statutory Regulations. As noted above, the PCO can expect to draft between 300 and 400 regulations each calendar year. However, the number now usually exceeds 400. Figures for recent years are—

Regulations can be small, large, routine, or complex and difficult. Vires issues are frequently involved in the drafting of Statutory Regulations and other delegated legislation.

Statutory regulations and other delegated legislation are sometimes dismissed as unimportant. That is a misconception. Delegated legislation is a critical component of most legislative schemes and often has the most direct impact on the citizen, whether individual or corporate. The consequences and costs of poorly drafted delegated legislation can be just as significant as for Acts of Parliament. For these reasons, the same degree of skill and care is required to draft delegated legislation as for primary legislation.

There is no annual legislation programme for regulations. The drafting of regulations requires the authority of a Minister. Policy decisions underlying proposed regulations will have to be obtained from the relevant Cabinet Committee and from Cabinet before drafting can proceed. However, if the regulations are merely routine, they can be drafted on the instructions of the responsible Minister without the need to get Cabinet Committee and Cabinet approval.

The drafting process for regulations is much the same as for Bills. The Cabinet Office Manual requires that all regulations submitted to Cabinet are certified by a Parliamentary Counsel as being in order for submission to Cabinet. This means that the Parliamentary Counsel must be satisfied that the regulations can lawfully be made and that there are no grounds on which the Regulations Review Committee might draw them to the attention of the House with the risk of disallowance under the Regulations (Disallowance) Act 1989. The Parliamentary Counsel certifies whether, in his or her opinion, the regulations can be validly made. The Parliamentary Counsel does not assess litigation risk to the Government in proceeding to make regulations where there is a vires issue. He or she does not advise on the likelihood of successful challenge in the courts.

If a Parliamentary Counsel is not prepared to give an unqualified certificate, he or she will advise the Attorney-General of the reasons for this and send a copy of the advice to the Minister responsible for the regulations. The Crown Law Office may also be asked to advise on the issue.

All regulations are referred to the Cabinet Legislation Committee for consideration before they are submitted to Cabinet for reference to the Executive Council.

Revenue Bills

As a result of the passage of the Statutes Drafting and Compilation Amendment Act 1995 and the making of the Inland Revenue Department (Drafting) Order 1995, all Revenue Bills are now drafted in the Inland Revenue Department Tax Drafting Unit. The PCO, however, still drafts amendments to the Student Loan Scheme Act 1992, and the Child Support Act 1991. The PCO will also draft parts of revenue Bills that will not become Acts administered by the Inland Revenue Department.

In 2001, the Minister of Finance, the Minister of State Services, and the Attorney-General considered whether the drafting of revenue legislation should be transferred back to the PCO. It was decided that the current arrangement for the drafting of revenue legislation should continue until the end of 2002 when it should be reviewed. The arrangement has not been reviewed. One of the recommendations made in the draft report of the reviewers of the PCO’s resourcing and operations is that the PCO should draft revenue legislation.

Legislation programme

Bills are drafted in accordance with the priorities that they have on the legislation programme. The procedure for developing the legislation programme each year has involved the Legislation Coordinator in the Cabinet Office sending a circular to all government departments inviting them to submit bids for inclusion in the programme. Responses are sought by about mid-January. The proposed programme for the year is referred to the Cabinet Legislation Committee and then to Cabinet for approval.

In recent years, the PCO has undertaken an assessment that involves relating the available drafting resources to the estimated time that would be required to draft the Bills included in the bids. The purpose of this is to ensure that available drafting resources will be sufficient to meet the Government’s requirements. The analysis assumes a Parliamentary Counsel will work the equivalent of 1600 hours of chargeable time a year, which is the benchmark in some law firms. Adjustments are made for training and supervision and for drafting local and private Bills, Members’ Bills, and Statutory Regulations.

The 2005 legislation programme contained 5 categories of Bills. These were—
Category 1: Bills that must proceed as a matter of law
Category 2: Bills that must be passed in 2005
Category 3: Bills to be passed in 2005 if possible
Category 4: Bills to proceed to a select committee in 2005
Category 5: Bills for which instructions are to be provided to PCO in the relevant calendar year.

Plain language review

In 2004, the PCO engaged Michèle Asprey, an Australian lawyer and expert in plain language in legal writing, to review the drafting of New Zealand legislation from a plain language perspective. Ms Asprey examined examples of past and recent New Zealand statutes and regulations. She suggested a number of ways in which the drafting of New Zealand legislation could be improved. These centred on—

Ms Asprey interviewed a number of drafters. A common concern was with the apparent lack of any empirical evidence that plain language techniques work. Her conclusions were that while there are no hard and fast rules, case studies show that, in the legislative context, plain language techniques help readability. Not every situation will call for the same approach. There is always room for improvement, but improvement tends to be incremental.

Ms Asprey stated that—

the overall style of the language of the recent legislation I have seen is fairly modern, reasonable and not overly plagued with legalese or outmoded forms of expression.

The PCO will consider Ms Asprey’s recommendations in detail. A copy of her report is attached as Appendix 5.

2.4 Access to Legislation

Reprinting of legislation

The reprinting of legislation is undertaken by a team of reprints officers (6 FTE). New Zealand legislation has been consolidated and reprinted since the 1850's. A consolidation is an enactment that rationalises the law on a particular subject and is re-enacted by Parliament. A reprint simply republishes a particular enactment with all its amendments incorporated, but the enactment is not re-enacted by Parliament. Reprints published by the PCO have official status under the Evidence Act 1908 as authoritative statements of the law.

The 1908 consolidation was the last consolidation of the New Zealand statute book. Reprints of all Public Acts were published in 1931 and 1957. Reprints of individual statutes and some regulations were published between 1958 and 1979 in the annual volumes.

In 1979, the Reprinted Statutes of New Zealand Series (RS Series) commenced. The objective of the RS Series was to reprint every Public Act at intervals of not more than 10 years, with Acts that were heavily amended being reprinted at more regular intervals. Reprints of Acts were published individually and in volumes, known as “the brown volumes”, with about 3 volumes being published annually.

The RS Series did not achieve its objective. The interval between reprints of many Acts exceeded 10 years. Some important and heavily amended Acts were reprinted only once while other Acts of lesser significance were reprinted regardless of their importance or demand for them. The RS Series was discontinued in 2003. Few regulations (about 20) were reprinted from 1979 to 2003.

Since 2003, Acts and regulations have been reprinted and published in individual pamphlet form in accordance with the PCO reprints policy and an annual reprinting programme. The reprints policy is based on similar policies in Australia. The annual reprinting programme is settled following consultation with users of legislation, including the judiciary, the New Zealand Law Society, community groups, librarians, and government departments. The programme aims to reprint more regulations than has traditionally been the case. Reprinting regulations is important because regulations can often have more direct impact on the public than statute law.

Copies of the PCO reprints policy and the reprinting programme for 2005/06 are attached as Appendix 6. Additional funding was appropriated in the 2005/06 Budget to enable the PCO to compile and publish reprints of Acts and regulations in accordance with the reprinting programme for 2005/06. It is estimated that approximately 10,000 pages of reprinted legislation will be published annually. By way of comparison, the New South Wales Parliamentary Counsel’s Office aims to publish between 10,000 and 12,000 pages of reprinted legislation each year. Queensland aims to publish about 18,000 pages annually. Subject to Government agreement, it is proposed to review the level of funding for printed reprints once the PAL Project comes on line, as it is anticipated that the greater availability of legislation in electronic form will result in a drop in demand for printed copies of reprints.

Public Access to Legislation Project

The objectives of the PAL Project are to—

The PCO is undertaking the project in collaboration with the Office of the Clerk and the Tax Drafting Unit of the Inland Revenue Department (IRD). Unisys New Zealand Limited (Unisys) is the PCO’s implementation partner for the project. The PAL Project is fundamental to achieving improvements in providing ready access to New Zealand legislation.

The project was originally scheduled to go live in February 2003, but the commissioning of the new PAL systems was deferred as a result of technical and commercial issues. As a result of the successful conclusion of negotiations between the PCO and Unisys on the commercial basis on which the project could be completed and Cabinet approval of the resulting agreement, the project resumed in March 2005. It is expected that the project will be completed in late 2006 or early 2007, and will have a significant impact on the PCO in the next 3 to 5 years. One result of the PAL Project will be the integration of systems at the PCO for drafting and publishing legislation. In addition, on completion of the project, Unisys on behalf of the PCO will house and maintain the new PAL system at Unisys’ Kapiti Data Centre.

A significant number of PCO staff are involved in the PAL Project on a day-to-day basis. At least 2 staff members from most groups within the PCO are now part of the PCO PAL Project team, in order to spread the heavy workload involved in participating in project meetings and reviewing documents, to provide backup to each other in case of illness or the demands of business-as-usual, and to facilitate communication with, and feedback from, the other members of each team member’s business unit.

The following work is required to complete and implement the PAL system:

The current project plan indicates that Unisys will complete the PAL Project by the last quarter of 2006. However, the timing of the introduction of the new PAL system also needs to take into account the parliamentary sitting programme and the impact of the introduction of the new systems and processes on the day-to-day operations of the PCO and of the Office of the Clerk and the Tax Drafting Unit of the IRD.

Website of New Zealand legislation

A website of up-to-date New Zealand Acts and regulations is available free to the public under an arrangement between the PCO and Brookers Limited (Brookers). This arrangement was originally entered into in September 2002 on a short-term basis as part of the PAL Project. The Brookers database will be replaced by a database of legislation to be owned, maintained, and updated by the PCO and made available on the Internet. The interim arrangement with Brookers has had to be continued pending the completion of the PAL Project. The PCO pays Brookers a monthly fee for this service. The website attracts about 26,000 unique visitors per month, many of whom are from overseas. This level of usage is regarded as high for a government legislation website.

The Knowledge Basket

The Knowledge Basket website (at www.knowledge-basket.co.nz) provides free public browse access to New Zealand Acts and Statutory Regulations in an uncompiled form (that is, without their amendments incorporated), Bills and Supplementary Order Papers, reprints of Acts published since 1 November 2002, and reprints of Statutory Regulations published since 1 October 2003. This access is provided on behalf of the PCO as part of an agreement between the PCO and Blue Star relating to the PCO’s contract with Securacopy for the printing, distribution, and sale of legislation.

Printing arrangements

The printing, distribution, and sale of printed legislation is carried out on behalf of the PCO by Securacopy. The current arrangements continue until 31 March 2006. Pending completion of the PAL Project, it may be necessary to continue the current arrangements with Securacopy until the completion of the project. A separate submission will be made to the Government about this.

Prepublication services for legislation

The PCO’s Prepublication Unit (PPU) was set up in 2003 as part of the PAL Project to provide specialist services using XML based mark-up language software to prepare for publishing in electronic and printed form Bills, draft Supplementary Order Papers, draft Statutory Regulations, pre-assent copies of Acts, Acts, Statutory Regulations, and reprints. The staff in this team are mostly former employees of Legislation Direct.

Because the PAL Project is not now expected to be completed until late 2006 or early 2007, the current arrangement with Legislation Direct to provide prepublication services for legislation has been further extended. The arrangement will now end on completion of the PAL Project, when the PPU will take over responsibility for the prepublication and publication functions.

PPU staff continue to work at Legislation Direct on a daily basis in order to maintain the standard of service delivery necessary to meet the requirements of Parliament and the Government for the printing and publication of legislation, and to provide legislative data in electronic form to the Knowledge Basket. PPU staff also assist Legislation Direct with work on reprints. In addition to their prepublication work, PPU staff also continue to make a significant contribution to work on the PAL Project.

2.5 Conditions of employment and remuneration

The Chief Parliamentary Counsel and Parliamentary Counsel are office holders, not employees. Under the Statutes Drafting and Compilation Act 1920, the Chief Parliamentary Counsel and Parliamentary Counsel are appointed by the Governor-General on the recommendation of the Prime Minister. This means, in effect, that they hold office at pleasure. For the appointment of Parliamentary Counsel, the appointment process requires a recommendation from the Chief Parliamentary Counsel to the Attorney-General and, if the Attorney-General agrees, the recommendation is referred to the Prime Minister who, in turn, advises the Governor-General to make the appointment.

All other PCO staff are engaged on individual contracts of employment.

The PCO has policies covering a wide range of matters relating to PCO staff. They include policies relating to discretionary spending and gifts, remuneration, leave (including parental leave), computer systems and Internet use, training, study leave, and information and personnel security.

Remuneration of the Chief Parliamentary Counsel is determined by the Remuneration Authority under the Remuneration Authority Act 1977. Salaries and terms and conditions of Parliamentary Counsel and all other staff are determined by the Chief Parliamentary Counsel under section 6A of the Statutes Drafting and Compilation Act 1920, which requires the Chief Parliamentary Counsel to make a separate determination for every member of the PCO.

As a result of amendments to section 6A, which came into force on 25 January 2005, the Chief Parliamentary Counsel is no longer required to consult with the State Services Commissioner on salaries and terms and conditions of employment, but is required to consult with the Commissioner before entering into any collective employment agreement. There is no collective employment agreement with staff in the PCO.

In December 2004, the PCO moved to a fixed date (now 1 January) for all salary reviews. Previously, salaries were reviewed on individual anniversary dates. Salaries are determined in accordance with the PCO’s remuneration policy. In determining salaries for drafting and non-drafting staff, account is taken of professional and other skills, performance, salary rates in the public and private sectors, ability to pay, and relativity with other staff.

The PCO needs to be able to recruit and retain well-qualified and able lawyers and other staff who perform specialist roles, for example, IT systems development and management, editorial, and publishing. In the long term, salaries paid to legislative drafters will never compete with remuneration at partner level in large law firms or with salaries paid to associates and senior associates in those firms. Legal salaries in the private sector are influenced by demand and the often aggressive recruiting of New Zealand lawyers by overseas law firms. However, salaries should not fall behind public sector legal salaries and need to take account of market movements. Salary levels for Parliamentary Counsel are comparable with salaries paid in the Crown Law Office.

Parliamentary Counsel are appointed from different experience backgrounds; private sector law firms, government, academic staff of the universities, the Law Commission. The PCO does not recruit graduates directly from the universities. It prefers to engage lawyers with at least 3 years’ legal experience in the public sector or private sector.

3 Relations with external agencies

3.1 Rules Committee

Rules of practice and procedure for the Supreme Court, Court of Appeal, High Court, and District Courts are made by the Governor-General by Order in Council with the concurrence of members of the Rules Committee. In the case of rules relating to the Supreme Court, Court of Appeal, and High Court, the concurrences required are those of the Chief Justice and at least 2 other members of the Rules Committee of whom 1 is a High Court Judge. In the case of District Courts rules, the concurrences are those of the Chief District Court Judge and at least 2 other members of the Rules Committee of whom 1 is a District Court Judge.

The Rules Committee is a statutory committee established under section 51B of the Judicature Act 1908. The Attorney-General is a member of the Committee ex officio. The other members are the Chief Justice, a Judge of the Court of Appeal, the Chief High Court Judge, 2 High Court Judges, the Chief District Court Judge, 2 District Court Judges, the Solicitor-General, the Secretary for Justice, and 2 practitioners. The Committee Chair is the Hon Justice David Baragwanath, a High Court Judge based in Auckland. The Secretary to the Committee is Richard Living, an officer in the Ministry of Justice. The Committee is assisted by a Judge’s Clerk who undertakes research, drafts consultation papers, and takes minutes of the Committee’s meetings. The Clerk is based in the Auckland High Court. The current Clerk is Bernice Ng.

Although not a member of the Rules Committee, the Chief Parliamentary Counsel attends its meetings. The Committee meets 7 times a year in Wellington. Parliamentary Counsel draft all of the rules for which the Rules Committee has jurisdiction and often attend meetings as well.

Until 1999, the Committee’s principal focus was the High Court Rules. The High Court Rules were enacted as a schedule of the Judicature Amendment Act (No 2) 1985 (largely to avoid possible vires issues). The High Court Rules have been constantly amended. There are usually 3 substantial High Court Rules Amendments each year. Amendments have included—

In 1999, the jurisdiction of the Rules Committee was extended to include the District Courts Rules. The rules for both the High Court and District Courts are similar in a number of respects. The object of extending the Committee’s jurisdiction was to ensure that changes to the High Court Rules that needed to be reflected in the District Courts Rules 1992 were made in a timely way. Rule changes for District Courts had tended to lag behind.

The Rules Committee has also developed new Court of Appeal (Criminal) Rules (in 1997 and in 2001), new Court of Appeal (Civil) Rules (in 1997 and 2005), and the Supreme Court Rules 2004. The Committee has also taken responsibility for rules applying in District Courts under Acts other than the District Courts Act 1947, eg, rules under the Construction Contracts Act 2002 and the Local Government Act 2002.

The Rules Committee is currently engaged in 2 major projects. The first is a reform of the High Court Rules. It has appointed a subcommittee chaired by the Chief Parliamentary Counsel to scope and coordinate this task. A major “root and branch” reform is not envisaged, rather a “tidying up” more in the nature of a consolidation after 20 years of continuous amendment. The reform will, however, address 3 big topics, electronic filing, execution, and cross-border issues. Despite the limited scope of the project, the work involved will be considerable and involve reorganising the High Court Rules, adoption of a different numbering system, as well as rewriting many of them. Dr D L Mathieson QC has been engaged as Special Counsel to the PCO and is co-ordinating and advising on this project.

The second is a major reform of civil processes in District Courts. Of all civil claims commenced in District Courts, 94% do not proceed beyond filing. A subcommittee of the Rules Committee has proposed reform based on the principle of proportionality, that is, that the claims process should reflect the complexity of the issues involved. It has developed and consulted on a model that will ensure that straightforward claims are dealt with simply and quickly while the procedure for more complex cases is more appropriate to the issues. This reform may well require substantial amendment to, if not complete rewriting of, the District Courts Rules 1992. A team of Parliamentary Counsel is engaged in redrafting the District Courts Rules.

A team of Parliamentary Counsel drafted the new Family Courts Rules 2002. The Rules Committee does not have responsibility for the Family Courts Rules. The task of rewriting and consolidating all the rules that apply in Family Courts into the new Family Courts Rules 2002 was coordinated by the Ministry of Justice working with the Principal Family Court Judge, other Family Court Judges, and practitioners. The task took 9 years.

The Rules Committee also initiates consideration of statutory changes in areas that affect its work and the operation of the courts. These statutory changes are typically straight-forward and non-controversial. They are usually able to be dealt with in Statutes Amendment Bills. Statutory changes that have recently been enacted or that are proposed for enactment include—

3.2 Law Commission

The PCO provides a limited amount of drafting assistance to the Law Commission. Parliamentary Counsel have recently drafted an Arbitration Amendment Bill, a 110-clause Insurance Contracts Bill that accompanies the Commission’s Report Life Insurance NZLC R87, and amendments to provisions of the Customs and Excise Act 1996.

3.3 Drafting assistance to Pacific Island governments

The PCO has provided drafting support to the Government of Niue and is able to assist other Pacific Island governments. Ross Carter has assisted Niue with the drafting of counter-terrorism and other legislation.

3.4 Legislation Advisory Committee

The Legislation Advisory Committee (LAC) was established in 1986 by the then Minister of Justice (Rt Hon Sir Geoffrey Palmer). The terms of reference of the LAC are—

LAC members are appointed by the Minister of Justice. The Chief Parliamentary Counsel is a member of the LAC.

The principal focus of the LAC in recent years has been on producing a new edition of the Legislation Advisory Committee Guidelines: Guidelines on Process and Content of Legislation (LAC Guidelines: published 2001) and a Supplement to the LAC Guidelines (published 2003). The principal purpose of the LAC Guidelines and the Supplement is to assist policy makers and lawyers in government in the process of translating policy decisions into effective, principled, and accessible legislation. A subcommittee of the LAC chaired by Professor John Burrows QC is currently updating the LAC Guidelines. Parliamentary Counsel are assisting with rewriting chapters in this regard.

A wide range of topics is covered in the LAC Guidelines, including methods of implementing policy objectives in legislation, compliance with legal principles, statutory interpretation, compliance with the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993, international law obligations and standards, public powers, creation of public bodies, delegated legislation, remedies, criminal offences, appeal and review mechanisms, powers of entry and search, and cross-border issues.

The LAC advises government departments on proposed legislation and on particular issues that arise in connection with the development of legislation. The LAC makes submissions on Bills to select committees. It has also held seminars to promote understanding of the LAC Guidelines. A seminar featuring the LAC Guidelines organised by the Continuing Education section of the New Zealand Law Society in 2000 was attended by over 300 people, including public and private sector lawyers and policy advisers. A further seminar on the LAC Guidelines was held on 15 September 2005 in the Legislative Council Chamber. Applications for registration exceeded available capacity (approximately 200) and a repeat seminar will inevitably have to be arranged. Deputy Chief Parliamentary Counsel, Geoff Lawn, gave a paper on aspects of instructing the PCO in the drafting of legislation.

3.5 Overseas drafting offices

Australia

The Australian Parliamentary Counsel’s Committee (PCC’s Committee) is a committee of the heads of the Commonwealth, State, and Territory drafting offices in Australia. It meets on a regular basis to deal principally with issues relating to uniform legislation in Australia. The PCC’s Committee invites the Chief Parliamentary Counsel to its meetings and sends copies of draft legislation it considers to the PCO. The Chief Parliamentary Counsel tries to attend at least 1 meeting a year, although this is not always possible. The PCO has excellent relations with the Australian drafting offices. There is a high level of co-operation with them and a significant amount of information is exchanged.

The PCC’s Committee holds an annual IT Forum of the IT personnel in the Australian and New Zealand drafting offices. It provides an opportunity to discuss developments in technology affecting drafting offices. Staff responsible for the PCO’s IT systems and who are also involved in the PAL Project attend these IT Forum meetings. Government-owned databases of up-to-date legislation to which the public has access have been available in Australia for years. PCO staff attended an IT Forum meeting in Hobart in July 2005.

The Australian and New Zealand drafting offices now hold regular conferences for drafters. The first of these was organised by the PCO and held in Wellington in 2000. The second was held in Melbourne in August 2001. A drafter’s conference was held in Sydney from 3 to 5 August 2005. The theme of the Sydney conference was the “View From the Other Side”. The conference focused on external factors affecting the drafting of legislation, particularly the implications of court decisions. Speakers included the President of the New South Wales Court of Appeal and the Director-General of the New South Wales Department of the Premier and Cabinet. Six Parliamentary Counsel, including the Chief Parliamentary Counsel, attended the Sydney conference. The Chief Parliamentary Counsel and Ross Carter presented a paper entitled “The Old Girl Still Looks Good to Me” on the purposive interpretation of legislation in New Zealand. Bill Moore presented a paper on working with instructing departments, and Julie Melville presented a paper on parliamentary scrutiny of legislation in New Zealand.

Jacqueline Derby, a Parliamentary Counsel with 15 years’ drafting experience, took up a 6-month secondment to the Australian Office of Parliamentary Counsel (the office responsible for drafting Bills for the Australian Parliament) in April 2005. A senior drafter from the Australian office took up a corresponding 6-month secondment to the PCO, also in April. The secondments, which have now been completed, have been beneficial to both the PCO and the Australian Office of Parliamentary Counsel.

Other countries

The PCO has contact from time to time with drafting offices in other jurisdictions, including the Republic of Ireland, Scotland, and Canada. The PCO is currently engaged in discussions with the Government of the Falkland Islands about the secondment to the PCO of a lawyer engaged in legislative drafting in the Falkland Islands.

The benefits from contact with drafting offices in other countries include—

3.6 Commonwealth Association of Legislative Counsel

The Commonwealth Association of Legislative Counsel (CALC) was established in Canberra in the early 1980s on the initiative of the Australian Office of Parliamentary Counsel. It has a membership of about 400 legislative drafters from Commonwealth countries, including Africa, the Caribbean, the United Kingdom, Canada, India, Asia, and the Pacific (Australia, Pacific Islands, and New Zealand). CALC has a governing Council. The President is Lionel Levert, former Chief Legislative Counsel of Canada. The Chief Parliamentary Counsel was reelected to the Council at its meeting in London on 9 September 2005 representing the Pacific region.

CALC holds a conference of legislative drafters every 3 years in conjunction with the Commonwealth Law Conference. A CALC conference was held on 8 and 9 September 2005 in London (at the University of London) ahead of the Commonwealth Law Conference in London scheduled for 12 to 15 September 2005. The CALC conference was organised by the Parliamentary Counsel Office in London. The Chief Parliamentary Counsel and Ian Jamieson, Deputy Chief Parliamentary Counsel, attended the conference. The Chief Parliamentary Counsel chaired a conference session on the organisation of legislative drafting offices. Briar Gordon, a Parliamentary Counsel who was on leave in London, also attended the conference.

4 Other

4.1 Regulations Review Committee Digest

The PCO has agreed to provide, in conjunction with the Office of the Clerk, funding to support updating of the Regulations Review Committee Digest. The Digest is published by the Centre for Public Law, Faculty of Law, at Victoria University of Wellington. The Digest is a comprehensive account of the work of the Regulations Review Committee. It describes the role of the Committee in scrutinising regulations, and analyses reports made by the Committee under the different limbs of Standing Order 378(2) and its “investigative” reports on specific aspects of delegated legislation. The PCO will contribute $3,000 a year for 3 years towards updating the Digest. The Office of the Clerk will make a similar contribution. Work on updating the Digest in 2005 will focus on including reports of the Committee under Standing Order 378(2) since the original publication of the Digest, Government responses to reports, and adding a search function.

4.2 Legislation course (Laws 323)

Parliamentary Counsel taught Legislation (Laws 323) at Victoria University of Wellington in 2004. This is an optional subject for the degree of LLB. Five counsel were involved in teaching the course to about 60 third- and fourth-year students. They are also teaching the course in 2005.

4.3 Bill Sewell Memorial Prize

The Law Commission, Ministry of Justice (for the LAC), and the PCO contribute to a prize for legal writing to commemorate the late Dr Bill Sewell. Bill Sewell had a PhD in German and taught German at Otago University. He also qualified in law and worked at the Law Commission. He was the principal author of the Law Commission’s reports Format of Legislation3 and Legislation Manual Structure and Style4 and he assisted the PCO with the redesign of New Zealand legislation in 2000. There are 2 prizes, both worth $1,000. Papers are to be about clarity and principle in Acts of Parliament.

4.4 New Zealand Centre for Public Law conferences—The Primary Functions of Government

The New Zealand Centre for Public Law has held 2 conferences under the theme of The Primary Functions of Government. The PCO made a financial contribution of $2,000 in 2003 and 2004 towards the holding of these conferences. The Chief Parliamentary Counsel presented a paper at the conference held in November 2004 in the Legislative Council Chamber. The PCO has agreed to make a similar financial contribution to the third and final conference in the series to be held in November 2005.

4.5 Conferences and publications

Parliamentary Counsel give lectures, seminars, and papers at the universities and at conferences. Articles on legislation-related subjects have been published in New Zealand and overseas publications (see further, the Report of the Parliamentary Counsel Office for the year ended 30 June 2005, pp 44–46.)

5 General comments

Increases in the baseline funding for the PCO over recent years have enabled the PCO to increase its drafting and publishing resources and its support services. It is now better placed to meet the drafting requirements of the Government. In particular, it is possible for teams of drafters to work on large Bills and on Bills that are required quickly. This means that the drafting gets done more quickly and the burden of drafting a large and complex Bill no longer falls solely on an individual drafter working alone. The PCO is now more comparable in size and capacity with drafting offices in Australia.

There are, however, significant differences between the PCO and the Australian offices. The Australian Office of Parliamentary Counsel in Canberra only drafts Bills for the Australian Government. Regulations are drafted in another drafting office that is part of the Attorney-General’s Department. The Australian Office of Parliamentary Counsel does not draft legislation that falls within the jurisdiction of the States and Territories. The State and Territory drafting offices do not draft legislation that is the responsibility of the Commonwealth. There are 3 separate drafting offices in Canberra that employ over 80 drafters.

The Parliamentary Counsel Office in London has 65 drafters. Some are assigned to the Law Commission and some work on the rewrite of United Kingdom tax legislation. That office only drafts Bills. It does not draft delegated legislation.

The PCO needs to recruit and retain well-qualified and able lawyers who wish to make a career of legislative drafting. Legislative drafting needs to be seen as an attractive and professionally satisfying career. It is generally regarded as taking up to 6 years for a well-qualified and able lawyer to become proficient in legislative drafting. It is a specialist skill.

The PCO is a professional office that has to work to very high standards. Like legislative drafters in other countries, Parliamentary Counsel make mistakes. Error correction is more difficult under MMP. The pressures on getting legislation right, if not perfect, are high. The PCO is fortunate in having highly-qualified and able lawyers to draft New Zealand’s legislation and able specialist support staff. The PCO will continually seek the support of the Government to ensure that it has the resources to enable it to meet the requirements placed on it.

Legislation must be accessible to readers. It must be drafted in as a clear a way as possible. The PCO has made many changes to the way in which New Zealand legislation is drafted through the simplification of expression, the use of outline Parts, purpose provisions, examples, tables, and other graphic aids. The format of New Zealand legislation was changed in 2000 to aid readability. In much of this, the PCO has been greatly assisted by the work of the Law Commission, particularly Sir Kenneth Keith and his successor as President of the Commission, Hon Justice David Baragwanath (now Chair of the Rules Committee).

Legislation must, however, also be accessible to readers in the physical sense. Users must be able to access legislation in an up-to-date form. The PAL Project is critical in this regard.

The PCO will continue to keep you informed of developments within the office and with the PAL Project in particular on a regular basis.

George Tanner QC
Chief Parliamentary Counsel
20 October 2005

1 See the speech of the Attorney-General, Sir Francis Bell, on the Second Reading of the Statutes Drafting and Compilation Bill 1920: New Zealand Parliamentary Debates 1920, Hansard vol 188, 745.
2 The Australian Commonwealth Office of Parliamentary Counsel has a similar objective: parliamentary democracy and an effective statute book. See Report of the Parliamentary Counsel Office for the year ended 30 June 2004, 6.
3 NZLC R27 (1993)
4 NZLC R35 (1996)

6 Appendices

6.1 Report of the Parliamentary Counsel Office for the year ended 30 June 2005

The Report of the Parliamentary Counsel Office for the year ended 30 June 2005 is available in both HTML and PDF (926Kb) formats.

6.2 Statement of Intent of the Parliamentary Counsel Office for the period 1 July 2005 to 30 June 2008

The Statement of Intent of the Parliamentary Counsel Office for the period 1 July 2005 to 30 June 2008 is available in both HTML and PDF (682Kb) formats.

6.3 Organisational structure of the PCO

Organisational structure of the PCO (51Kb GIF)

6.4 Organisation chart of drafting teams

Organisation chart of drafting teams (67Kb JPG)

6.5 Michèle Asprey’s report: Review of the Current Legislative Drafting Practices

Michèle Asprey’s report, Review of the Current Legislative Drafting Practices, is available in PDF (174Kb) format.

6.6 PCO Reprints policy and reprinting programme for 2005/06

The PCO Reprints policy and reprinting programme for 2005/06 are available in HTML format.