6th Australasian Drafting Conference
3–5 August 2011, Parliament House, Adelaide
Index of papers (by session)
- Session 1: Welcome
- Session 2: The importance of the work of a Parliamentary Counsel
- Session 3: Drafting in the 21st Century—How the role has developed and where it is now
- Session 4: Aboriginal people and the law
- Session 5: Survival of the fit and not so fit—How to think, act and survive as a professional in the modern world
- Session 6: Update on applied law schemes
- Session 7A: Update on referrals
- Session 7B: The development of policy and legislation
- Session 7C: New ways to tackle judicial review since Kirk
- Session 8A: Update on Kable etc in light of Totani and other decisions
- Session 8B: Making legislation more accessible—Customer surveys and complexity flags
- Session 9A: Upholding intergovernmental immunity—Ralph Clarke goes to the High Court
- Session 9B: Managing Emergency Management
- Session 10: The Drafter as Interpreter
- Session 11A: Delegated legislation—What can and cannot be done and what should and should not be done
- Session 11B: Issues and new approaches for drafting legislation in the 21st century—Precedents, style and structure of legislation, outlines, preambles, schedules, notes, examples, diagrams etc.
- Session 11C: Issues for drafting for Private Members of Parliament
- Session 12: The recognition of policy in the law—The limits on the policy underlying a statute being used to interpret that statute
- Session 13: Balancing the Powers of the Executive and Legislative Branches—Executive Compliance with Parliamentary Committees
- Session 14A: Drafting for new drafters
- Session 14B: Theories of constitutional law/The extent to which the State should regulate private individuals
- Session 14C: Criminal law—Drafting guidelines, the classification and formulation of offences, and related issues
- Session 15A: Principles-based drafting
- Session 15B: Aliteracy: a modern problem with serious consequences for professional writing
- Session 15C: Use of explanatory materials
- Session 16: The last word—What makes a successful drafter and how far can we go?
Session 1: Welcome
Welcome, program and housekeeping matters.
Speaker: Richard Dennis (SA)
Session 2: The importance of the work of a Parliamentary Counsel
This session will set the scene for the conference by looking at the work of legislative drafters from an outside perspective—being the judicial perspective. Such matters as the role of drafters in analysing and expressing Government policy in a logical and coherent way, the proliferation of legislation and the impact that Parliamentary Counsel have on the law will be explored.
Speaker: The Honourable John Doyle AC, Chief Justice of the SA Supreme Court Paper
Session 3: Drafting in the 21st Century—How the role has developed and where it is now
The role of legislative drafters is changing. Drafters appear to be called on more and more to assist in policy formulation. The time available for preparing drafts appears to be getting shorter and shorter. Draft legislation is expected to be more accessible and Parliamentary Counsel are now involved in the consolidation and publication of legislation once it has passed and been brought into operation.
Speakers:
Session 4: Aboriginal people and the law
This session will provide an insight into how our written laws impact on indigenous people. The words and concepts that we use may not make much sense when we consider Aboriginal culture and may result in unintended outcomes or consequences for indigenous people within our communities.
Speaker: Lewis O'Brien - Aboriginal Elder (and University of South Australia)
Session 5: Survival of the fit and not so fit—How to think, act and survive as a professional in the modern world
Has the practice of law forgotten about justice? How ethical is it to ignore the humanity of one's employees? Does acting in the best interests of clients extend to working until one reaches burnout? This session examines the concept of professionalism in the context of work environments where colleagues live complex and varied lives. It looks at the notion of work-life balance as an ethical issue and asks if being 'professional' extends to forsaking all other aspects of our own and our colleagues' lives.
Speaker: Rachel Spencer (University of South Australia) Paper
Session 6: Update on applied law schemes
Annette's presentation will provide a brief examination of applied law schemes enacted in recent years, including how the drafting of these schemes has differed from earlier schemes. The particular emphasis will be an update on provisions dealing with 'a single national entity', national regulations (including disallowance of national regulations) and oversight provisions.
There seems to be a new approach to setting up national applied laws schemes, at least where the Commonwealth is not a participating jurisdiction. The Health Practitioner Regulation National Law is a good example. Roger's presentation will give a very brief outline of some of the features of the new approach and then highlight some issues that arise in WA because WA does not apply the National Law as in force from time to time, but mirrors it.
Speakers:
Session 7A: Update on referrals
This session will provide an update on measures for referrals to the Commonwealth under section 51(xxxvii) of the Constitution.
Speaker: Richard Dennis (SA) Paper
Session 7B: The development of policy and legislation
Adam Durst's presentation will be about new ways that social networking and other IT mechanisms can be used to gain responses to Government initiatives and, especially, draft legislation.
Grant Selmes' presentation will be about drafting within a taskforce environment. Increasingly, governments are establishing taskforces to undertake large and complex drafting tasks. Often, these taskforces consist of legislative drafters, technical experts and specialist legislative counsel working closely together, to very tight timelines. The presentation will look at Grant's experience as a drafter within a taskforce environment with an emphasis on the things that are required to make taskforce drafting effective.
Speakers:
Session 7C: New ways to tackle judicial review since Kirk
In Kirk v Industrial Relations Commission the High Court held that attempts by state legislatures to enact privative clause are inconsistent with the constitutionally protected right of appeal from state supreme courts to the High Court found in s 73 of the Commonwealth Constitution. In this session the presenter will consider what tools remain in the drafter's toolbox, following Kirk, to protect administrative decisions from challenge in the courts.
Speaker: Mike Wait (Crown Solicitor's Office) PPS
Session 8A: Update on Kable etc in light of Totani and other decisions
This session will provide an update on the law relating to Kable, especially taking into account the recent High Court cases of Totani and Wainohu.
Speakers:
Session 8B: Making legislation more accessible—Customer surveys and complexity flags
In this session Louise Finucane will discuss recent innovations in the Commonwealth Office of Parliamentary Counsel, including surveys of users of legislation and the introduction of the complexity flag system.
Speaker: Louise Finucane (CTH) Paper PPS
Session 9A: Upholding intergovernmental immunity—Ralph Clarke goes to the High Court
In Clarke v Commonwealth the High Court upheld a challenge brought by Ralph Clarke, a former member of the South Australian Parliament, against the imposition of a Commonwealth tax calculated by reference to his parliamentary superannuation entitlements. The Attorney-General (SA) intervened to argue that the surcharge offended the implied doctrine of intergovernmental immunity (the Melbourne Corporation doctrine). In this session Ralph Clarke will explain the circumstances that gave rise to the challenge. Mike Wait, who appeared for the Attorney-General, will then explain what implications the decision holds for the Melbourne Corporation doctrine.
Speakers:
- Ralph Clarke
- Mike Wait PPS
Session 9B: Managing Emergency Management
This session looks at PCO's role in the government's response to the earthquakes in Christchurch, New Zealand, on 14 September 2010 and 22 February 2011.
Speakers:
Session 10: The Drafter as Interpreter
This session will focus on how modern drafting practices interact with modern approaches to the interpretation of legislation.
Speaker: Jeffrey Barnes Paper PPS
Session 11A: Delegated legislation—What can and cannot be done and what should and should not be done
The purpose of this session is to explore the extent to which regulations can or should be used under an Act from a technical perspective and from a legislative policy perspective. Should or should not certain things be left to the regs and, if so, what can and cannot be done by regulations under an Act.
Speakers:
Session 11B: Issues and new approaches for drafting legislation in the 21st century—Precedents, style and structure of legislation, outlines, preambles, schedules, notes, examples, diagrams etc.
This session will include the latest on innovations in legislative drafting, the use of precedents and drafting guides, discussion on what works well and not so well when devising a draft, the latest trends and fads in the drafting field and issues such as the colour printing of legislation.
Speakers:
- Heimura Ringi (OLDP)
- Mellanie Adams (OLDP)
- Geoff Lawn (WA)
- Jim Soundias (VIC) Paper
Session 11C: Issues for drafting for Private Members of Parliament
A number of offices undertake drafting for Private Members of Parliament. These projects give rise to their own issues and challenges. Speakers will compare the approach adopted in various jurisdictions to this area of work and provide an opportunity to explore and discuss what works well and what are, or should be, the expectations placed on drafters in what appears to be an expanded area of activity in a number of jurisdictions.
Speakers:
Session 12: The recognition of policy in the law—The limits on the policy underlying a statute being used to interpret that statute
This session will be an extension to an earlier session on statutory interpretation and will provide an interesting presentation on the limits on the policy underlying a statute being used to interpret that statute.
Speaker: Dr Steven Churches (University of SA) Paper
Session 13: Balancing the Powers of the Executive and Legislative Branches—Executive Compliance with Parliamentary Committees
This session will examine the relationship between the Executive and the Legislative branches of Government by considering the extent to which Parliamentary committees are able to compel the production of documents and information from the Executive Government.
Speaker: Greg Parker (South Australian Crown Solicitor)
Session 14A: Drafting for new drafters
This session will be available to drafters who have no more than 5 year's experience in working in a Parliamentary Counsel's Office. It will include a panel-led discussion about the "experience" of being a drafter, explore the difficulties that are faced when a person commences work in a professional drafting office, assess various training practices and methods, and consider what is the success to a long and happy career in the field of legislative drafting.
Speakers:
- Gale Jamieson (WA)
- Robyn Hodge (NSW)
- Sandra Lawson (QLD)
Session 14B: Theories of constitutional law/The extent to which the State should regulate private individuals
This session will explore current themes in public health law notably the tensions in reconciling the rights of individuals with the need to protect the wider community. All Australian jurisdictions have faced this issue when drafting public health, quarantine and emergency management laws and the basis upon which their coercive powers can be legitimated demands a more sophisticated approach than the simple view than coercion is justified if it promotes "the greatest good for the greatest number." The basis on which these powers can be imposed and the legislative safeguards that have been put in place will be discussed.
Speaker: Chris Reynolds (Flinders University)
Session 14C: Criminal law—Drafting guidelines, the classification and formulation of offences, and related issues
This session will look at how criminal offences should be formulated and structured within legislation. While actus reus and mens rea are fundamental concepts in criminal law, it is important to understand how the legal elements of an enacted criminal offence need to be considered and reflected in the drafting of offences. The discussion will address both Criminal Code drafting and the position in common law jurisdictions.
Speaker: Matthew Goode (Attorney-General's Department) Paper
Session 15A: Principles-based drafting
Principles-based drafting is a drafting approach increasingly adopted in Commonwealth legislation as a means of promoting clarity and managing complexity. In particular, it has been used to move away from the "black letter" approach that was used in Commonwealth tax laws. The extent to which principles should be used in a particular case can involve a balancing of competing considerations
Speaker: Paul Lanspeary (CTH)
Session 15B: Aliteracy: a modern problem with serious consequences for professional writing
This session will explore the extent to which modern trends have adversely affected reading and writing skills and how writing skills can be improved within a professional environment.
Speaker: John Shelton (Consultant education adviser in writing and thinking) Paper
Session 15C: Use of explanatory materials
Stephen will discuss issues arising from the use of explanatory material to interpret legislation, including differences between the UK and Australia regarding the use of explanatory material.
Speaker: Stephen Argument (OLDP) Paper
Session 16: The last word—What makes a successful drafter and how far can we go?
What special qualities does a drafter require? Must he or she be obsessively concerned with detail, a wordsmith but not wordy, a perfectionist, apolitical or can a normal human being be a successful drafter? The answer to this question and much more will be revealed in this session.
Speaker: Eamonn Moran (HK)