- How does the ExCo instruments program work?
- What is, and is not, covered by the ExCo instruments program?
- Templates for bids and variations to bids
- Policy approval for ExCo instruments
- Giving initial instructions to OPC
- Finalising instruments
- More information
Under the Legal Services Directions 2017, the drafting of legislative instruments made by the Governor-General (ExCo instruments) is tied to OPC. These instruments must therefore be drafted by OPC. The order in which instruments are drafted is governed by OPC’s ExCo instruments program.
Before each Parliamentary sittings period, First Parliamentary Counsel seeks bids from departments for ExCo bids to be drafted in the upcoming Parliamentary sittings period. For this purpose, the Autumn drafting period runs from 1 January to 30 April, the Winter drafting period runs from 1 May to 31 July, and the Spring drafting period runs from 1 August to 31 December (these sittings periods are slightly different to the bill sittings periods, which are based on the actual parliamentary sittings). The ExCo Secretariat sends out an Executive Council Circular advising Departmental Legislation Liaison Officers and Executive Council Liaison Officers of the deadlines for these bids to be submitted.
Bids should be emailed to OPC to instrument.instructions [at] opc.gov.au.
Bids are considered by OPC and a program for the drafting of ExCo instruments for a particular Parliamentary sittings period is then developed.
The ExCo instruments program only relates to legislative instruments that are submitted to the Federal Executive Council for making by the Governor-General. These instruments include regulations, commencement Proclamations and Ordinances of the non-self-governing Territories.
The program does not affect OPC’s other drafting services such as the drafting of Court Rules or untied work. Agencies can still engage OPC for untied instruments on a fee-for-service basis, outside the ExCo instruments program. Although made by the Governor-General, commencement Proclamations are also not included in the program, and OPC is available to draft these on an as-needed basis.
The template for ExCo instrument bids is available below. If the priority of an instrument changes, or an additional instrument needs to be added to a department’s bid, a variation bid must be provided to OPC. The variation template is available below. Variations to bids should be emailed to instrument.instructions [at] opc.gov.au.
Policy approval does not need to be in place for an ExCo instrument to be included in a bid. However, OPC requires general policy approval from the relevant Minister (or the Cabinet) to be in place when drafting instructions for the instrument are issued, unless other arrangements are in place with OPC.
If your Department has a particularly urgent matter, an SES officer may issue drafting instructions or a request for OPC services without policy approval. The instructions should explain the reasons for the urgency, why it has not been possible to obtain the policy approval and when the policy approval will be obtained. A variation to the program will also generally be needed.
Policy approval is not required for commencement Proclamations, or for instruments drafted by OPC on a billable basis (i.e. untied work).
Giving initial instructions to OPC
Initial instructions for an ExCo instrument should be issued at least 6 weeks before a finalised version of the instrument is required. They should be emailed to instrument.instructions [at] opc.gov.au.
However, if the instrument or policy is complex, or the instrument is large, it may take significantly longer than 6 weeks to complete a final draft. In this case, instructions should be given as soon as possible. This ensures drafting work can commence when resources become available in accordance with the priority given to the instrument.
When a finalised instrument is required depends on the timeframes needed for any internal departmental processes, consultation and Ministerial timeframes to seek the signature of your Minister and meet the “Cut-off for Final Papers” deadline set by the ExCo Secretariat. These deadlines are advised to Departmental Legislation Liaison Officers by Legislation Circular. Sufficient time must also be allowed if an exposure draft of an instrument is needed.
If your Department has a particularly urgent matter, please ensure the relevant OPC instrument client adviser for your Department is contacted as soon as possible to discuss the timeframes by which the instrument needs to be developed. Departments should also contact the Secretariat as soon as possible if it is considered that an instrument may need to be considered urgently by the Federal Executive Council.
In general, the minimum time that should be expected for a revised draft of an instrument to be finalised is 3 working days. This is because of the large volume of other editorial work (both for Bills and instruments) that generally coincides with the times that draft instruments are required to be finalised. If there are a large number of changes required before an instrument can be finalised, obviously, the turnaround time will be greater.
OPC instrument client adviser for your Department.
Other useful information, including OPC’s Instruments Handbook, can be found on the legislative handbooks page.