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Legislative Process

Legislative Process

Policy stage before drafting a new law or making amendments to an existing law.

1. Client Department

  • Formulates the policy.
  • Policy should set the story stating the background of current circumstances, the issue(s) or problem and possible solutions.
  • Most obvious solution is the administrative or legislative solution.
  • If client department opts for legislative solution, then a new law is proposed or amendments are made to the existing law to fix the issue or problem.

2. State Solicitor’s Certificate of Necessity (CoN)

  • Client department formally request State Solicitor for Certificate of Necessity (the CON).
  • Client department or government agency must attach policy papers, concept notes, supporting documents and drafting instructions.
  • In recent years, client departments have not attached drafting instructions but instead attach an already drafted Bill or Regulation.
  • Client department or government agency develops a policy to either amend an existing law or propose a new law or to alter the Constitution or an Organic Law.
  • Polices usually state the problem faced and if the solution is to be fixed by legislative mechanism, then the policy outlines that.
  • Once client receives CON, client must prepare an NEC Policy Submission requesting NEC to approve for drafting the law. When NEC approves, the NEC Decision is given to FLC to draft the law.

3. National Executive Counci (NEC) to Office of Legislative Counsel

Drafting of law or amendment to existing law.

First Legislative Counsel receives:

  • NEC Decision;
  • Policy, Concept notes, any supporting notes or documents attached with State Solicitor’s; and
  • Drafting instructions.
  • NEC directs Office of Legislative Counsel to draft the legislation
  • The drafting of legislation is based on Drafting the Instructions and all the documents attached.

4. The Drafting Stages of a Legislation

Drafting process itself will depend on the legislation, the drafter and the time frame

For shorter Bills or simple amendments, legislative counsel may be able to prepare a full draft based on the initial instructions provided in the policy submission.

For larger and complex Bills, legislative counsel will prepare a first or sketch draft based on the policy submission, identifying issues that need to be addressed for directions.

Each provision of the draft must be fully annotated to provide the background, objective and rationale behind the provision. Legislative counsel is responsible for the final legislation. The First Legislative is not bound to follow the organisation or the language proposed in the draft legislation.

i. Initial Contact Between Drafter and Instructing Officer

How soon drafting can start?

Who will be on the drafting team ( that is, participating directly in the drafting process)?

Whether there will be consultations with other people during the drafting process.

Final copy given to instructing officer when the client department is satisfied that the intentions/policy is catered for or covered in the legislation. First Legislative Counsel issues Certificate of Compliance (CoC). The client department then proceed to NEC to seek approval for tabling of the Bill in Parliament.

ii. NEC Certifies Bill for Tabling in Parliament

Once National Executive Council approves the Bill (or an amendment Bill) for tabling, OLC prepares copies of the Bill to be circulated for the three readings and enacted by the National Parliament.

iii. Timelines for Drafting Legislation

Drafter must be given enough time to draft a piece of legislation. Drafter should not be expected to draft a law by the next day, within 2 weeks or 3 months. In practice, it takes a minimum of 6 months to 2 years to draft a new piece of legislation. Depending on the nature of the new Bill or amendment, it may take shorter than six months.

iv. Legislative Drafting Process for Regulation
  1. Client department develops policy and consultation stage.
  2. Client department forwards draft Statutory Business Paper, policy papers, concept notes and other supporting documents (if any) and drafting instructions to State Solicitor to get legal clearance and to be issued a Certificate of Necessity. State Solicitor grants Certificate of Necessity to client department.
  3. Client department submits policy gets NEC Approval.
v. From National Executive Council to Office of Legislative Counsel

NEC Decision is received by First Legislative Counsel (FLC) and directs FLC to draft regulation. FLC drafts in accordance with drafting instructions and all the documents attached. FLC may delegate drafting task to any of his counsel. A Legislative Counsel deals directly with the client department and the instructing team of officers from the client department.

When the client department is satisfied that the draft Regulation has all their intentions covered, they must inform FLC in writing so that FLC directs NEC to facilitate signing of the Regulation by the Head of State, the Governor General. FLC gives final copy of regulation and grants Certificate of Compliance to client department.

vi. From National Executive Council to Head of State
  1. NEC Secretariat takes regulation to Government House to be signed by Governor-General.
  2. The Regulation goes for Gazettal at the Government Printing Office.
  3. FLC prepares Notice of Commencement of Regulation to be gazetted to effect the Regulation.
  4. Regulation to commence on date of publication of Gazette.
vii. Commencement Process of Laws

Commencement Clause:

Section 110 of the Constitution provides that “ A proposed law becomes law on the date when the Speaker certifies that it has been passed by Parliament.

Some legislation come into force upon certification but some may come into operation upon notice in the National Gazette.

In some complex Bills, some parts may come into force upon certification and some by way of notice in the National Gazette.

Some sections of the law such as the administrative or transitional part may take effect first while the rest of the sections may take effect later according to what the commencement clause states.