Engaging with LDAC
Consulting with LDAC before a Bill is introduced
Bills are identified through the legislation programme
Bills are identified for LDAC consultation through the annual legislation programme. Ministers must indicate whether they intend to refer a Bill to LDAC in legislation bids seeking priority for a Bill on the legislation programme(external link).
The Attorney-General may also make recommendations to Ministers when the legislation programme is being settled about referring a Bill to LDAC.
What kind of legislative proposals should be referred to LDAC?
A legislative proposal should definitely be referred to LDAC if the proposal:
- is a significant principal Act, or
- is likely to impact on the coherence of the statute book (for example, because of a significant degree of overlap or interaction with other legislation), or
- is or is likely to be inconsistent with the principles in the Legislation Guidelines (2018 edition) (particularly those relating to fundamental legal and constitutional principles).
You may also wish to refer a legislative proposal to LDAC if:
- the proposal raises basic framework/design issues or questions of instrument choice, or
- you consider the proposal would benefit from advice on how best to apply or ensure consistency with the Legislation Guidelines (2018 edition).
Legislative proposals that are not referred to LDAC before introduction may be reviewed by LDAC when a Bill is introduced. In appropriate cases, LDAC may make a submission to the relevant select committee.
As LDAC does not have the capacity to advise on every legislative proposal, LDAC reviews the legislation bids and identifies those legislative proposals that LDAC considers will benefit most from LDAC advice before introduction using the following criteria: Factors to consider when deciding whether to consult with LDAC on Bills [PDF, 200 KB]
There may be cases in which a department has stated that it intends to consult with LDAC but the Bill does not meet LDAC’s criteria. Conversely, there may be legislation bids that do not indicate that the department intends to consult with LDAC but the Bill appears to meet LDAC’s criteria for engagement. In those cases, LDAC contacts the department concerned to discuss whether the Bill would benefit from pre-introduction LDAC engagement.
When should agencies engage with LDAC?
Agencies should engage with LDAC in the initial stages of developing legislation, when legislative proposals and drafting instructions are being prepared.
The best time to engage with LDAC will depend on the nature of the legislative proposal. LDAC's experience and departments' feedback suggests working with LDAC before final policy approvals adds the most value, particularly where policy decisions will relate directly to legislative framework, design, or fundamental legal or constitutional issues.
Contact the LDAC Secretary to discuss engaging with LDAC and organise a meeting.
Meeting with LDAC
From 2019, LDAC’s operating structure has changed. LDAC’s public service and external adviser expertise has been combined into a new single-committee structure. This has led to some changes to the way that LDAC now operates.
Previously, pre-introduction Bills were generally referred to a LDAC meeting comprised of public service members, with a subcommittee established only if further engagement was needed. For post-introduction Bills, the external members of LDAC would develop a submission to the select committee, which would be submitted via the LDAC chair. LDAC now meets regularly as a full committee to discuss strategic “cross-cutting” issues raised by Bills and its other work.
LDAC engagement on pre-introduction Bills is through LDAC subcommittees established for individual Bills. The subcommittee will engage with officials at appropriate points in the Bill’s development up to and, potentially, following introduction. The subcommittee will usually comprise four LDAC members and (subject to consultation with the relevant department and approval of the Attorney-General) will be drawn from the full membership of LDAC. Alternatively, where engagement is not through officials, LDAC may make a submission to a select committee on a Bill.
LDAC is working on a guide for officials that will outline this new operating model in more detail and provide guidance on how to get the best out of engaging with LDAC.
Usually, officials and Parliamentary Counsel working on a legislative proposal are invited to attend a meeting to discuss and canvas issues within the proposed legislation. Meetings are usually one hour depending on the complexity of the legislative proposal.
In advance of meeting with LDAC, agency officials are asked to provide:
- a summary of issues that they would like to discuss with LDAC, including any proposals for how these might be dealt with
- a draft copy of the Bill (if available)
- any relevant background papers (or draft papers)
The style of working with subcommittees is largely determined by agencies' needs in each case. Subcommittees can work flexibly to take into account timeframes and other factors in the development of legislation. Agencies can engage with subcommittees by meeting in person, phone, or seeking email advice. Generally, a subcommittee will meet with an agency two to three times over the course of developing legislation.
The role of LDAC and its subcommittees is advisory, and agencies determine whether or how to implement its advice. However, the Committee may make reports to the Attorney-General if it considers that a significant and unjustifiable departure from the Legislation Guidelines (2018 edition) has occurred.
Indicating compliance with the Legislation Guidelines (2018 edition)
Ministers and their officials must identify in Cabinet papers seeking approval of Bills for introduction(external link) or authorisation for submitting regulations to the Executive Council(external link) whether any aspects of the legislation depart from the default principles in the Legislation Guidelines (2018 edition). Cabinet papers must explain and justify any departures.
For further information about working with LDAC or questions about whether engagement with LDAC is appropriate, please contact the LDAC Administrator.