Shaping laws in the Pacific The role of legislative drafters A study of legislative drafting services in Forum Island Countries Pacific Islands Forum Secretariat 2013
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Executive Summary The Pacific Islands Forum Secretariat is pleased to present this report on legislative drafting services in Forum Island Countries (FICs). This report responds to the interest of Leaders of the Pacific Islands Forum, as stated in the Pacific Plan for Regional Integration and Cooperation, to deepen regional cooperation in the legal sector of the Pacific region and explore opportunities for regional support to the legal institutions of FICs. This report focuses specifically on the provision of legislative drafting services in FICs. Legislative drafting is often an under-appreciated role in the process of government in FICs, notwithstanding the important role of legislative drafting in giving legal effect to a wide range of national policies, including the implementation of legislative commitments under regional and international treaties. Legislative drafters are effectively translators, translating policy objectives into a legally effective form. As such, the importance of FICs having access to high quality legislative drafting services cannot be overstated. The human and financial constraints experienced in the national administrations of most FICs have a significant impact on their ability to recruit and retain experienced in-house legislative drafters. Larger jurisdictions often have sufficient human resources in their public services to enable specialisation in the separate but related processes of public policy development and legislative drafting. However, the reality for legislative drafters in most FICs is an expectation that, in preparing draft legislation, they also undertake a lead role in developing and articulating the public policy proposals which the proposed legislation serves to implement. Compounding these difficulties are growing demands from national governments for the development of legislation, and the increasing technical complexity of issues requiring legislative responses. This report provides an overview of: the function of legislative drafting in public policy development; existing national and regional resources for providing legislative drafting services; common challenges faced by FICs in accessing high quality legislative drafting services; and options for addressing these challenges. In identifying these options, the report provides examples of measures undertaken by different government law offices in FICs to improve their delivery of legislative drafting services. The report consolidates the information and views obtained through a series of consultations with a broad range of stakeholders in the region s legal sector, including Attorneys-General, heads of Ministries of Justice, Parliamentary Counsel, members of Law Reform Commissions and officials from regional and international organisations that provide legislative drafting assistance to FICs or work with them on law reform projects. In particular, this report draws on discussions held at the 2012 meeting of the Pacific Legislative Drafters Technical Forum convened by the Forum Secretariat which developed a Regional Action Plan for progressing the goal of FICs having ready access to high quality legislative drafting services.
The consultations have emphasised the complementary role of national and regional policies and activities to support FICs access to high quality legislative drafting services. At a national level, the allocation of sufficient resources to support effective legislative drafting services requires prioritisation. Regional and international organisations, including development partners, can also support FICs through closer consultation with national government legal offices to ensure that external legislative drafting assistance is appropriate to national priorities and consistent with national processes. The Secretariat is committed to supporting its Members through facilitating regional cooperation, and where relevant integration, in the legal sector. This report is intended to serve as a resource by which national, regional and international organisations, including development partners, can gain a useful understanding of the context of legislative development in FICs and work cooperatively to improve the availability and quality of legislative drafting services in our region.
Acknowledgements [To be finalised]
List of Acronyms AGD FFA FIC ICRC ILO OCO OPC PCO PDLD PIDC PIF PIFS PILON RRRT SOPAC SPC SPREP UNDP USP Attorney-General s Department of Australia Forum Fisheries Agency Forum Island Country International Committee of the Red Cross International Labour Oceania Customs Office of the Parliamentary Counsel Parliamentary Counsel Office Professional Diploma in Legislative Drafting Pacific Immigration Directors Conference Pacific Islands Forum Pacific Islands Forum Secretariat Pacific Islands Law Officers Network Regional Rights Resource Team Applied Geoscience and Technology Division of the SPC Secretariat of the Pacific Community Secretariat of the Pacific Regional Environment Programme United Nations Development Programme University of the South Pacific
CONTENTS Executive Summary Acknowledgements List of Acronyms and Glossary ii iv v 1. Introduction 1 2. The role of legislative drafters Translating policies into law 4 3. Accessing legislative drafting services in Forum Island Countries 6 4. Challenges and options 20 5. Regional support for legislative development and drafting 29 6. Conclusion 31 Annex A
1. INTRODUCTION Ours is a region of huge cultural diversity, containing one-third of the world s languages in far-flung islands covering a vast part of the globe. We face unprecedented upheavals and disruption through global warming, damage to the fragile eco-systems of the Pacific, emigration, and other stressors. At such times, law comes under the same strains as the people. Our job as lawyers is to ensure that it is adaptable but stable, so that people can live their lives under its security. 1 1.1 High quality and effective legislation is an essential cornerstone of free and well-functioning democracies. It follows that having ready access to high quality legislative drafting services is fundamental to the Member governments of the Pacific Islands Forum and, in turn, the communities on whose behalf they govern. 1.2 There has been a long-standing recognition within the Forum of the importance of national legal frameworks to underpin the implementation of policies designed to promote regional objectives, including those relating to economic growth, sustainable development, security and good governance. High level regional statements and instruments, such as the Biketawa Declaration and the Forum Principles of Good Leadership, also document the Forum s commitment to the rule of law and democratic governance. 1.3 The Forum has also recognised the value of regional cooperation between the respective legal institutions of Member countries. In the context of the Pacific Plan for Regional Cooperation and Integration (the Pacific Plan), Forum Leaders agreed to: Deepen regional cooperation between key actors in the legal sector in the region, including senior government law officers, legislative drafters and judges. Explore the possibilities for regional support, including through pooling of resources and regional integration, in legal institutions and mechanisms providing legislative services, and in the area of judiciaries, courts and tribunals. 1.4 This report responds to Forum Leaders interest in exploring possibilities for regional support in the field of legislative drafting. In doing so, the report examines: a) the function of legislative drafting in public policy development; b) existing national and regional resources for legislative drafting; c) common challenges faced by Forum Island Countries in accessing high quality legislative drafting services; and d) options for addressing these challenges. 1 Address to the Pacific Islands Law Officers Meeting 2011 by the Rt Hon Dame Sian Elias, Chief Justice of New Zealand.
The purpose of the report 1.5 A key objective of this report is to raise awareness about the challenges faced by government law offices in FICs in meeting the growing demand for drafting legislation, often in the face of diminishing legal resources. In doing so, this report aims to address a concern commonly expressed by government lawyers that there is insufficient appreciation both within national governments as well as among regional and international organisations that advocate legislative reform of the time and resources required to develop comprehensive and legally sound laws. In this way, the report seeks to assist FICs, regional and international organisations, including development partners, to identify their roles in the development of relevant and effective legal frameworks in Pacific countries. 1.6 At the outset, it is recognised that significant factors affecting the ability of FICs to recruit and retain legislative drafters, such as salary and conditions of employment, raise issues which are not amenable to measures at a regional level. As such, the report does not examine those type of issues in detail but considers a range of other common challenges, such as the management of externally provided legislative drafting services, the development of legal literacy and policy skills of public servants and officials, and access to published laws. 1.7 The report focuses primarily on the resources required to meet the legislative drafting needs of FICs. While the report recognises that law reform commissions can play an important role in the process of reforming policies and laws on a broad range of issues, this report does not specifically examine the current state of resources for law reform commissions, or the broader debate which has been underway for some time, particularly in academia, about the value of establishing a regional law reform commission. 1.8 While the report focuses primarily on the legislative drafting services available to the executive arm of government, the consultations indicated that there is a considerable gap in terms of the legal services both legislative drafting services and general legal advice available for members of the legislature who do not form part of the executive. This is an issue that has been regularly identified in the context of parliamentary strengthening programmes conducted by the UNDP in a number of Pacific countries. Limited access to legal advice for non-ministerial members of the legislature means that many Bills are passed with only cursory consideration by members, and it is difficult for members to develop or draft amendments. This has a significant impact on the role of the legislature in public policy development and warrants further examination. A regional legislative drafting service? 1.9 The initial focus of the Forum Secretariat s consultations was on the viability of establishing a regional legislative drafting service, consistent with the emphasis in the Pacific Plan of pooling common resources to address national capacity constraints. However, the consultations indicated that there was limited interest in such a proposal, given that FICs generally preferred to develop the capacity of their national legislative
drafting services and given that countries currently have access to various forms of regional assistance for legislative drafting (for example, through the Forum Secretariat and the Pacific desks of the Australian Attorney-General s Department and New Zealand Parliamentary Counsel Office). Changing circumstances may generate fresh interest in a regional service in the future, but for present purposes, this report has not assigned priority to this type of regional response to the common challenges faced by FICs in accessing high quality legislative drafting services. The development of the report 1.10 This report consolidates information and views obtained from formal and informal consultations in 2011 and 2012 with officials from Member countries and regional and international s about the state of legislative drafting services in FICs. In summary, the consultation process involved: (a) in-country consultations in 6 Member countries; 2 (b) a request for information and views from other Members via a questionnaire process; 3 and (c) consultations with development partners (e.g. AusAID, NZAID and the European Union) and international and regional organisations, including the Secretariat of the Pacific Community (SPC), the Secretariat of the Pacific Regional Environment Programme (SPREP), the United Nations Development Programme (UNDP) and the Commonwealth Secretariat. 4 1.11 The report has also been informed by discussions at regional legal meetings, in particular the 2011 and 2012 meetings of the Pacific Islands Law Officers Network and the 2012 meeting of the Pacific Legislative Drafters Technical Forum (the Drafters Forum), which was convened by the Forum Secretariat. 2 The countries were: Tonga, Solomon Islands, Papua New Guinea, Kiribati, Palau and Samoa. While it would have been preferable to undertake consultations in each FIC, the expense of such consultations was beyond the budget available for the study. In light of this and in order to ensure a representative cross-section of jurisdictions, the team selected two countries from each of the 3 sub-regions of the Forum, ie PNG and Solomon Islands for Melanesia, Kiribati and Palau for Micronesia, and Tonga and Samoa for Polynesia. 3 Responses to the questionnaires were received from Nauru, Vanuatu and the Republic of the Marshall Islands. 4 Consultations were conducted by a team of 3 Fiji-based consultants, and in some cases, the Secretariat s International Legal Adviser. Meetings with relevant officials varied from country to country but in general included Ministers of Justice, Attorneys General, Chief Justices, the Court Registrars, Solicitors General, Secretaries for Justice, Parliamentary Counsel, Judicial and Legal Services Commission, Opposition Leaders, and representatives of law societies.
Key points High quality, effective legislation is an essential cornerstone of a free and well-functioning democracy. Having ready access to high quality legislative drafting services is fundamental to Member governments of the Pacific Islands Forum, and in turn the communities they govern. This report examines the challenges faced by the government law offices of Forum Island Countries in meeting the growing demand for developing and updating laws. In this way, the report seeks to assist Forum Island Countries, as well as regional and international s (including development partners), in identifying ways for improving the development of relevant and effective legal frameworks in Forum Island Countries.
2. The role of legislative drafters Translating policies into law 2.1 Legislative drafters play a significant but often under-appreciated role in the process of developing and implementing public policies. A legislative drafter is effectively a translator a lawyer who translates public policy objectives into a legally effective form (in other words, legislation). 2.2 Legislation refers to written rules of law made by a legislature or by a body on which law-making powers have been conferred, usually by the constitution of a state. As a source of law, legislation takes its place in the hierarchy of a state s various sources of law, which usually include the terms of the state s constitution, the common law and customary law. In states with a written constitution, legislation will be subordinate to the constitution (which means that legislation must be consistent with the constitution). As a general principle, where the provisions of an Act of parliament are inconsistent with a rule of common law or customary law, the Act will prevail. 2.3 Legislation can be described as authoritative written commands of legal force. Legislative drafting is a technical and complex exercise that involves articulating with an appropriate degree of precision the legal rights and obligations of individuals, government and other entities (such as companies, statutory authorities, associations etc). It requires superior written and analytical skills to translate often broadly described policy objectives into clear and concise legislative language that is constitutionally valid and able to be effectively understood, applied and enforced. 2.4 In general, the process of legislative drafting involves government policy officials instructing legislative drafters to develop legislation to give effect to a government s policy objectives in a specific area. A legislative drafter prepares a Bill which is subsequently tabled in the legislature by the Minister or Ministers responsible for the relevant policy proposals. The legislature then considers the Bill which may include scrutiny by specific parliamentary committees and decides to pass it, or not. Once passed and assented to by the relevant authority (e.g. Head of State, King, President), the Bill becomes an Act of the relevant legislature. 2.5 The process described above relates to the drafting of primary legislation, i.e. a Bill for an Act of Parliament. Many Acts confer on Heads of State, Ministers, Cabinet, and in some cases other public officials, powers to make regulations, declarations, rules, by-laws, etc. These types of legal instruments are known as subsidiary legislation and play an important role in any government scheme to legally regulate a particular area of activity. Legislative drafters are typically responsible for drafting both primary and subsidiary legislation. 2.6 In addition to drafting legislation, legislative drafters in some jurisdictions also provide briefings to officials, members of the executive and members of the legislature about the content and operation of proposed Bills.
2.7 The legislative drafting process is to be distinguished from the law-making process, which is a term regularly used to describe the role of legislators, i.e. elected members of the legislature, in considering, debating and passing (or not) a Bill. While the legislative drafting process is fundamental to the law-making process, legislative drafters are typically public servants who are engaged in the process of legislative development, but not the process of political consideration of legislation. 2.8 Larger and well resourced public services, such as those in Australia and New Zealand, generally have sufficient human resources to enable specialisation in the separate but related processes of public policy development and legislative drafting. However, the reality for legislative drafters in most Forum Island Countries is an expectation that, in preparing draft legislation, they also play a significant role in developing and articulating the public policy proposals which the proposed legislation serves to implement. Key points Legislative drafting is a technical and complex exercise. It requires superior written and analytical skills to translate often broadly described policy objectives into clear and concise legislative language that is constitutionally valid and able to be effectively understood, applied and enforced. Legislative drafters develop draft legislation (known as Bills) to give legal effect to a government s policy objectives in a certain area. Legislation (also referred to as statutes or Acts) articulates the legal rights and obligations of individuals, government and other entities, such as companies, statutory authorities and associations.
3. Accessing legislative drafting services in Forum Island Countries 3.1 The national administrations of all FICs employ government lawyers who undertake legislative drafting, although, as will be discussed below, jurisdictions differ significantly in terms of the numbers and levels of experience of legislative drafters. Most FICs supplement their national legislative drafting services through a range of other means which include donor-funded direct support to government legal offices and the provision of legislative drafting services by international, regional and other national organisations. National legislative drafting services 3.2 The resources allocated to the function of legislative drafting vary considerably across the different jurisdictions of the Forum s membership. Large jurisdictions such as Australia and New Zealand have separate statutory offices to undertake the role of legislative drafting. For example, in Australia, the drafting of federal level legislation is undertaken by the Office of Parliamentary Counsel (OPC) which is established under the Parliamentary Counsel Act 1970. Its principal functions are drafting Bills for introduction into either House of the Commonwealth Parliament, drafting amendments to Bills, drafting subordinate legislation, preparing compilations and reprints of Commonwealth legislation and publishing Commonwealth legislation. 3.3 The countries surveyed for this report demonstrate a range of approaches to the location of legislative drafters within their governmental structures, as well as varying degrees of resources allocated to the function of legislative drafting. Examples of different approaches include: (a) a discrete legislative drafting office, as in the case of Papua New Guinea. The PNG Office of Legislative Counsel was established in 1972 under the Legislative Drafting Service Act 1972. Nauru also has a specific statutory office the Office of the Parliamentary Counsel established under Part 3 of the Legislation Publication Act 2011; (b) specific legislative drafting units or divisions within the offices of the Attorney-General (also referred to in some jurisdictions as the Crown Law Office or State Law Office). For example, Vanuatu s State Law Office houses a Parliamentary Counsel Unit, and Samoa s Office of the Attorney-General (AG) houses a Legislative Drafting Division. In recent years, both Offices have made concerted efforts to increase the number of lawyers in their offices who focus primarily on legislative drafting; (c) legislative drafters working within the secretariat of the jurisdiction s legislatures, as in the case of the Republic of the Marshall Islands, the Federated States of Micronesia and Palau. In these jurisdictions, government Bills are also prepared by the relevant government law office or ministry; and
(d) the allocation of legislative drafting work to government lawyers in the offices of the Attorney-General who undertake this work in addition to the full range of other government legal work, such as criminal prosecution, providing legal advice to government ministries, and representing the government in civil litigation. This approach is more common in the smaller jurisdictions such as Tuvalu and the Cook Islands. 3.4 Some Member countries have federal systems of government and accordingly legislative drafting services are required for the different levels of government. For example, in the Federated States of Micronesia legislative drafting services are provided at the national level by the Department of Justice and the Congress and each of the four federated states also employ legislative drafters for their respective legislatures. 3.5 As these examples indicate, there are a range of different approaches by which governments set up their legislative drafting services. It is evident that there is no one right model for the establishment and maintenance of legislative drafting services, with the model and levels of staffing largely influenced by the size of the jurisdiction, the structure of government and the level of legislative activity. 5 3.6 As a general observation, there is limited access to legislative drafting services for non-ministerial members of parliament (MPs). In the north Pacific, ie Federated States of Micronesia, the Republic of the Marshall Islands and Palau, the stronger separation of power between the executive and legislative branches has resulted in relatively well resourced legislative drafting services being available within the secretariats to the legislatures. However, in the Westminster-model parliaments of the south Pacific, parliamentary legal services are less common and parliamentary counsel/legislative drafters are both physically and administratively located within the executive branch, and do not normally offer services to non-government MPs. In practice, this means that private members Bills are rarely drafted, and MPs often have difficulty in accessing legal advice on the content and implications of a Bill or in accessing assistance in drafting amendments to a government Bill. 3.7 Jurisdictions with law reform commissions, in particular Samoa and Solomon Islands, advised that the commissions sometimes prepare draft Bills or draft provisions to accompany their recommendations to government on options for legislative reform on the issues which they have inquired into. 5 Amongst the countries surveyed for the report, there was a wide variation in the number of Bills and amendments that were considered each year by the respective legislatures. For example, Kiribati reported an average of 3 Bills per year. On the other hand, other jurisdictions such as Samoa reported much higher numbers of Bills and amending Bills being introduced into their legislatures in any year.
External support for national legislative drafting services 3.8 The majority of countries surveyed for this report indicated that they did not have sufficient numbers of qualified national legislative drafters to meet the demand for legislative drafting from their governments. However, the consultations also indicated that governments draw on a number of mechanisms to supplement their national legislative drafting services. This report characterises these mechanisms in the following way: (a) bilateral support to national legislative drafting services through donor-funded provision of external legislative drafters; (b) the provision of legislative drafting services by regional and international s; and (c) the sourcing of legislative drafting services from consultants. Each of these mechanisms is described in further detail below. Bilateral support to national legislative drafting services 3.9 Current examples of direct support which are available to the government law offices of Forum Island Countries include: the programme of assistance to specific Member countries provided by the New Zealand Parliamentary Counsel Office (PCO); and the programme of assistance provided to Member countries on specific areas of legislative reform by the Australian Attorney-General s Department (AGD). 3.10 This assistance is largely provided off-shore, with the majority of the technical work being undertaken by government lawyers in Australia and New Zealand, but supplemented by in-country visits to consult with the government lawyers and relevant ministry officials of the relevant country. 3.11 Annex A provides further details about the assistance provided by these offices. Assistance from regional and international organisations 3.12 A diverse range of regional and international organisations operate in the Pacific region, providing policy and technical assistance to Forum Island Countries on a broad range of issues. Pacific regional organisations with functions in relation to policy development and technical assistance include: the Pacific Islands Forum Secretariat; the Secretariat of the Pacific Community, including the Regional Rights Resource Team and the Applied Geoscience and Technology Division (SOPAC); the Secretariat of the Pacific Regional Environment Programme; the Oceania Customs (OCO); the Forum Fisheries Agency (FFA); and the Pacific Immigration Directors Conference (PIDC). Relevant
international organisations operating in the Pacific region include: the United Nations 6 ; the International Labour Organisation (ILO); the International Committee of the Red Cross (ICRC); and the Commonwealth Secretariat. 3.13 Regional and international organisations provide, in a variety of ways, assistance to Forum Island Countries in developing legislation. This assistance is generally provided to advance projects on specific issues (rather than providing long-term or direct assistance to national government legal offices) and is usually provided through the engagement of consultants (rather than being provided by in-house legislative drafters). The Forum Secretariat and the OCO are exceptions in this regard, both organisations employing an in-house legislative drafter to provide drafting assistance to their constituent members. In general, regional and international organisations provide assistance to countries in the development of legislation without requiring financial contribution from the country for the provision of the specific assistance. 3.14 Table A provides a (non-exhaustive) overview of the subject areas in which regional and international organisations currently offer assistance in relation to the development of policy and legislation. Subject area Agency Type of assistance Prevention of sexual and gender based violence SPC Regional Rights Resource Team RRRT advocates reform of legislation to strengthen legal frameworks to respond to sexual and gender based violence. RRRT has previously engaged consultants to prepare draft legislation. Labour law Environmental regulation Customs International Labour Organisation Secretariat of the Pacific Regional Environment Programme Oceania Customs Organisation The ILO Country Office for South Pacific Island Countries employs labour law experts who provide technical legislative drafting assistance to ILO s Pacific Member States (ie Fiji, PNG, Solomon Islands, Kiribati, Vanuatu, Samoa, Marshall Islands, and Tuvalu). SPREP provides assistance to Member countries in developing environmental policies. The Legal Advisor advises on environmental legislation. If a request is received for the drafting of legislation, an experienced legislative drafter is contracted to undertake the work. The OCO employs a full-time legal drafter to assist its Member countries develop and draft customs policies, legislation, and guidelines as part of efforts to strengthen and modernise OCO 6 Including specific agencies such as the UN Office of the High Commissioner for Human Rights, World Health, UN Women and the UN Office of Drugs and Crime, and the International Telecommunications Union.
International humanitarian law Fisheries Immigration Deep Sea Minerals International Committee of the Red Cross Forum Fisheries Agency Pacific Immigration Directors Conference SOPAC (Applied Geoscience and Technology) Division of SPC Members customs systems and procedures. The Regional Delegation in the Pacific of the ICRC employs a legal adviser who advocates the adoption of international conventions dealing with international humanitarian law, and provides technical assistance to Pacific countries with their implementation of these conventions into domestic legislation. FFA assists its members with advice and assistance in reviewing and drafting fisheries legislation, and in general with implementing international rights and obligations under the 1982 UN Convention on the Law of the Sea, the 1995 UN Fish Stocks Agreement, as well as measures adopted by RFMOs (especially the WCPFC). Policy and legal advice is also given on international instruments such as the Code of Conduct for Responsible Fisheries, the FAO Port Measures Agreement, the IPOA-IUU, and other international instruments that might require domestic implementation, including regional agreements such as the US/Pacific Islands Multilateral Treaty and the multilateral Niue Treaty Subsidiary Agreement. FFA works closely with SOPAC and its other partners in assisting countries with maritime boundary negotiations, and the associated legal work. The PIDC provides advice and assistance to its Members in the development of immigration legislation. SOPAC s EU-funded Deep Sea Minerals Project provides technical advice and assistance to 15 Pacific ACP countries in developing and drafting laws for the regulation of seabed mineral activities, including policy and law to establish a licensing regime, fiscal terms, and environmental regulation. SOPAC employs a Legal Adviser and a Legal Assistant who provide assistance with policy development, legislative drafting and public
consultation to PACP Governments engaging in this emerging industry (where there is very little precedent policy and law currently), and also can contract external consultants to provide these services. The Forum Secretariat s in-house legislative drafting assistance 3.15 Since 2006, the Secretariat has engaged a full time legislative drafting officer. This position was established to assist FICs meet the significantly increased legislative demands which resulted from international and regional responses to terrorism and transnational crime, following the 9/11 terrorist incidents in the United States. The Secretariat s legislative drafting officer is also available to provide legislative drafting assistance to FICs on other policy areas, with priority given to legislative proposals related to the Pacific Plan. Engagement of consultant legislative drafters 3.16 Officials from Forum Island Countries advised that they regularly engage consultants to undertake specific legislative drafting projects. In some cases, a government ministry will fund the engagement of the consultant from its core budget. More commonly, the consultant will be engaged by a donor partner or regional or international organisation which is sponsoring or managing a particular project. 3.17 Officials indicated a broad range of experience in terms of the quality of legislative product delivered by consultants, whether engaged by the governments themselves or by regional and international organisations. The government law offices of some jurisdictions regularly contracted private lawyers, who had previously worked in those offices and as such understood the drafting styles and processes of the jurisdiction and as such, provided a competent service. However, the majority of jurisdictions conveyed frustration with their frequent experience of having to remedy the legislative products developed by consultants who, while experts in the relevant policy field, were not sufficiently qualified to competently undertake legislative drafting work. This issue is discussed in more detail in the next section. Key points Amongst FICs, there are a range of different approaches by which governments set up and resource their legislative drafting services. No one right model is advocated by this report, with the appropriate model and levels of resources being determined by a jurisdiction s particular circumstances such as size, structure of government and level of legislative activity. Most FICs supplement their national legislative drafting services by: accessing legislative development and drafting assistance provided by Australia, New Zealand, and regional and international organisations; and engaging consultants to provide legislative drafting services. The various national, regional and international organisations which provide assistance to FICs each vary in terms of: the subject matter on which they provide assistance; the countries eligible for assistance; and the extent to which legal policy review/development assistance is provided (in addition to legislative drafting assistance).
4. CHALLENGES AND OPTIONS 4.1 Consultations with a wide range of stakeholders in the region s legal sector have highlighted a broad range of challenges in providing and accessing high quality drafting services. This section discusses challenges which were commonly experienced across the region and describes responses by different countries in addressing some of these challenges. Recruiting and retaining legislative drafters 4.2 The challenges faced by FICs in recruiting and retaining experienced legislative drafters have been recognised within the regional community of government lawyers for many years. The issue of legislative drafting resources for FICs was one of the key issues considered in the initial meetings in the 1980s of the Pacific Islands Law Officers Meeting (PILOM), a regional association of senior government law officers which is now known as the Pacific Islands Law Officers Network (PILON). 4.3 Key reasons for the difficulty include: the heavy demand placed on drafters who are expected to provide a range of legal services, such as prosecution and advising, as well as drafting; the specialised nature of drafting work which may not be of interest or suitable to the skills of many lawyers; and the terms and conditions of employment in public service being less attractive than private practice. The 2012 meeting of the Drafters Forum, convened by the Forum Secretariat, also highlighted the generation gap in the ranks of government lawyers. Government law offices are able to recruit from the increasing number of law graduates of the University of South Pacific but experience a deficit of middle to senior range lawyers, with this group being promoted to other senior government positions or taking up opportunities in the private sector or international sphere. Positive developments 4.4 Notwithstanding continuing challenges in recruiting and retaining legislative drafters, there are examples of positive developments with some jurisdictions significantly enhancing their national resources for legislative drafting and legal publishing. For example, in recent years the government law offices of Samoa and Vanuatu have prioritised the development of specific legislative drafting units within their offices. 7 Nauru has also recently established a statutory office of parliamentary counsel. 8 7 While generally well resourced in terms of numbers, both offices indicated that the majority of lawyers in these units were relatively junior and required further training in the field of legislative drafting. 8 Nauru s Office of Parliamentary Counsel was set up in 2008, and became a statutory office in 2011. In 2012, the OPC engaged three full-time legislative drafters, all expatriate (the only 2 Nauruan lawyers who resided on the island were employed elsewhere, in the Department of Justice and the Parliament Secretariat).
Quality of externally sourced legislative drafting services 4.5 A recurring issue raised during consultations concerned the quality of legislation prepared by consultants (whether engaged by government ministries or regional and international s, including development partners). Government lawyers provided many examples of instances where draft legislation was unsatisfactory in terms of the appropriateness of the legislation to the specific jurisdiction, the quality of the drafting, and the consistency of the Bill s format with the jurisdiction s preferred format. Examples were given of Bills which had been cut and pasted from a Bill for another jurisdiction and retained references to places or positions specific to the other jurisdiction, as well as Bills which were inconsistent with the jurisdiction s Constitution. In some cases, draft Bills were prepared without necessary accompanying draft regulations. This meant that even if the Bill w as passed by the legislature, the Act was largely ineffective until the necessary regulations were drafted and entered into force. 4.6 The delivery of poor quality draft legislation means that valuable time and money is wasted, and defeats the purpose of outsourcing given that the legislative product has to be largely re-drafted by national legislative drafters. 4.7 The consultations identified a range of factors giving rise to the situations described above. The principal factor appears to be that many consultants engaged to undertake legislative drafting projects do not have appropriate experience and training as legislative drafters. The selection of such a person often arises because of a lack of appreciation by the agency responsible for engaging the consultant (for example a ministry or regional or international organisation) of the specific skills set of a legislative drafter and insufficient consultation with the national government law offices about the project. 4.8 The issue of the quality of externally sourced legislative drafting services was considered at the 2012 meeting of the Pacific Islands Law Officers Network. PILON Members noted the concerns of members in relation to some forms of development assistance in legislative drafting being counter-productive. Members further noted that: the rule of law requires that the law be prospective, lawfully made, publicly accessible, clear and coherent; and that achievement of these objectives requires wider recognition in the region and among development assistance partners that legislative drafting should be undertaken by professional specialist legislative drafters. 9 9 Outcomes Report, PILON Meeting, 29-31 October 2012, Kokopo, Papua New Guinea; available at www.pilonsec.org.
Options for managing the quality of legislative drafting services 4.9 Some government law offices have taken proactive steps to ensure greater oversight of the engagement of legal consultants so as to improve the quality of legislative outputs. For example, the Office of the Attorney General of Samoa and the Crown Law Office of the Cook Islands have developed protocols 10 which: require the involvement of the respective offices in the process of engaging a legislative drafter; specify the skills set required of a lawyer engaged to provide legislative drafting services; 11 and set out the process and format for Bills in the respective jurisdictions. Professional development and training opportunities 4.10 Government lawyers all stressed the importance of professional development and training opportunities for legislative drafters engaged by government law offices. 4.11 Legislative drafters largely develop their skills through on-the-job training. Experienced legislative drafters consider that the process of acquiring sufficient skills to work without supervision usually requires at a very minimum 5 years on-the-job training. In addition, lawyers in Pacific jurisdictions often undertake university level courses offered for legislative drafting, including: - the Professional Diploma in Legislative Drafting (PDLD) programme offered by the University of the South Pacific (USP). This is an introductory level course for legislative drafting, taught correspondence style over a period of 30 weeks; and - the University of London Advanced Legislative Drafting Course. This course is taught in an intensive, in-class mode, and is offered on an annual basis. 4.12 Government lawyers indicated that, while these courses provided a certain level of training for legislative drafters, there was a significant gap in terms of regionally accessible university level courses which provided more advanced level tuition. 10 In the case of Samoa, the relevant resource is the Legislative Drafting Handbook; and in the case of Cook Islands, it is the Solicitor General s Legislative Drafting Directives for the Cook Islands. 11 For example, the Cook Islands requires that a legislative drafter must: hold a legal degree; have a minimum of 5 years experience working as a legislative drafter; and prior to being engaged to draft legislation for the Cook Islands, provides a list of all substantive legislation that he or she has drafted and state the extent of his or her involvement in the drafting of each piece of legislation (for example, as the sole drafter, a co-drafter, or a contributor in some other way); and if requested, provide copies of the substantive legislation that he or she has drafted and involvement of his or her involvement in its drafting.
4.13 Government lawyers noted the particular value of on-the-job training, whether it be through: the placement of a legislative drafter from a Forum Island Country for short term periods (ie generally 3 months) in a larger parliamentary counsel s office, as occurred under the Australian Legislative Drafting Pairing Program run by the Australian Office of Parliamentary Counsel; or the placement of an experienced expatriate legislative drafter in a government law office to provide on-the job training and mentoring to less experienced lawyers. For example, the Attorney-General s Office of Samoa has employed this approach, and with the assistance of donor funding, engaged senior legislative drafters for two year periods from Fiji, New Zealand and Australia to provide in-house training and supervision to legislative drafters. 4.14 While the consultations indicated that there were a range of professional development and training opportunities, it was apparent that some government law offices were less familiar with the availability of opportunities. As training opportunities were generally donor funded, their availability is subject to donor priorities and funding models. Prioritising and tailoring training opportunities 4.15 Improving the skills of legislative drafters was identified as a key priority in the Regional Action Plan for Developing Sustainable Legislative Drafting Capacity in Forum Island Countries, which was developed by participants of the Pacific Legislative Drafters Technical Forum, held in 2012. The Plan identifies ways to improve existing training resources, as well as highlights areas where more training is needed, for example in improving general legal writing skills. So as to promote continuity and long-term effectiveness of training, the Plan also recommends the delivery of train the trainer courses. Improving policy development skills of government officials 4.16 While there is a clear need to improve the legislative drafting skills of government lawyers, government lawyers also stressed the importance of improving the policy skills of government officials more generally. There is a widespread (and generally unrealistic expectation) that government lawyers not only draft legislation but also develop the substance of the policy supporting the legislation. As stated by senior officials from the Government of Nauru in a written submission, one of the biggest challenges in legislative drafting whether it is done in-house, by a regional body or by an external consultant is the lack throughout the region of policy development capacity. 4.17 While legislative drafters play an important role in identifying the legal issues that will need to be addressed and clarified in developing a piece of legislation, they are generally not experts on the subject matter of the proposed law. So for example, while a legislative drafter will be able to draft legislation to regulate the possession of firearms in a
jurisdiction, they are generally dependent on experts in firearms control to provide advice and instructions about how to regulate possession to achieve specified public policy outcomes (for example, the complete prohibition of firearms possession by civilians, or the establishment of a licensing system for firearms possession). The development of a legislative proposal will usually require extensive consultation both with the different ministries or departments, as well as with individuals and groups likely to have an interest in the proposed law. Government lawyers in FICs are regularly requested to draft a legislative response to a public policy objective with very little information or support provided to research, analyse and develop the most appropriate legislative response to the issue. Options for improving policy development 4.18 The consultations indicated two main approaches for improving public policy development: By improving the public policy skills of government lawyers and legal policy officers. For example, some government law offices have encouraged their lawyers and others working in legal policy areas to participate in the Pacific Legal Policy Twinning Program offered by the Australian Attorney-General s Department. This programme, which commenced in 2010, places 2 Pacific Island lawyers or legal policy officers per year on 3 month placements within AGD to build on their legislative development and reform skills, by developing legal policy and preparing drafting instructions for new legislation. The program is also open to applicants who do not have law degrees. AusAID s support for the law and justice sectors in Papua New Guinea and Solomon Islands has also included the placement of technical advisers in the respective justice departments to work with national government lawyers in developing their skills to formulate legislative proposals, prepare legislative drafting instructions, and critically review draft legislation. By improving the awareness of policy officials about their role in the legislative process. For example, the Parliamentary Counsel s Unit of the State Law Office of Vanuatu conducts a Drafting Process Workshop for government officials to explain the function of legislation and how legislation is developed. This training seeks to instil a broad awareness within the government of the different roles and responsibilities of policy officials and legislative drafters in developing legislation. 4.19 An additional approach was recommended by the Government of Nauru in a written submission: