Efficacy of guidance materials and pre-legislative processes

3.54     This section considers how guidance materials for policy makers may be further improved and supplemented.

3.55     As set out above, there is a lot of guidance available to policy makers as they develop policy and prepare drafting instructions for OPC. The Attorney-General’s Department has indicated, as at 1 November 2015, that it is in the process of updating it.

3.56     However, these materials may not be easily discoverable for policy makers as they begin the policy-making process. The guidance material is prepared by a number of government departments and agencies, and sometimes, by the relevant parliamentary scrutiny committee. It is sometimes organised by subject matter, and sometimes by reference to human rights.

3.57     The Legislation Handbook, which provides an overview of legislative processes, was last updated in 2000, before the establishment of the Human Rights Committee in 2011.[89] The Legislation Handbook would benefit from being updated, with specific reference to the approach to rights encroachments, the justifications for such encroachments, and the role of the various parliamentary scrutiny committees. It should also contain an up to date list of the additional guidance material available to assist in the legislative drafting process.[90]

3.58     One example of useful additional guidance relates to sunset clauses and review mechanisms. While some rights-encroaching legislation include time limits or ‘sunset clauses’,[91] and review or reporting mechanisms,[92] there is no general guidance about when sunset clauses or review mechanisms may be an appropriate safeguard for legislation identified as likely to be inconsistent with rights. Such guidance could be included in the Legislation Handbook, and might be an issue dealt with in guidance material published by the Attorney-General’s Department.

3.59     The OPC has indicated that its role is to assist policy makers to translate their policy goals into a Bill. It seeks ‘to assist instructors to develop and refine the policy so that the legislation is effective, clear and introduced within required timeframes’.[93] The OPC could provide further advice to departments about how avoid or minimise legislative encroachments on rights by, for instance, setting out whether less encroaching drafting options are available, and the relative merits of such options. The OPC currently takes this approach where policy makers know their desired outcome, but do not have detailed views on how to implement them.[94] Alternatively, the OPC may wish to follow the approach it takes where questions of constitutional validity arise. While the OPC does not refuse to draft ‘constitutionally suspect provisions’,[95] it will:

  • draw attention to the constitutional doubts;

  • ensure legal advice is obtained from the Australian Government Solicitor, Solicitor-General or Attorney-General; and

  • where appropriate, advise on alternative approaches.[96]

3.60    Under such a model, the OPC might, for instance, draw attention to potential encroachments, direct the policymaker to relevant advisers (for example, the relevant sections of the Attorney-General’s Department), and where appropriate, advise on alternative approaches. If the policymaker decides to continue with the rights encroaching approach, the OPC would follow such instructions.