Commonwealth Legislative Drafting Manual

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Roger Rose
30 Nov 2017
9781848599635 (PDF)

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In 1976, recognising that there was a shortage of trained legislative drafters in the Commonwealth, the Commonwealth Secretariat first published a legislative drafting manual aimed at informing those practitioners with little or no previous experience in the skill, and assisting those with some experience who had never considered why drafting needed to be undertaken in a particular way.

That aim remains, but more than 40 years later there have been important changes in the way legislation is drafted. These mainly concern the perceived need to make it more accessible to those to be affected by it, in particular by the use of plain language and sentence structures that relate more closely to those used in formal non-legislative documents.

In the light of these and other changes, the Commonwealth Legislative Drafting Manual has been completely rewritten, and it now guides the practitioner step by step through the various things he or she needs to know. It also contains a series of appendices relating to the procedure for the preparation of legislation, the contents of drafting instructions, and some hints to the beginner on the best approaches to the task.

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  • Foreword
  • Preface
  • Acknowledgements
  • What is Legislation and why is it Drafted the Way it is?

    If asked to define what is meant by ‘legislation’, most people would probably say that it is ‘a set of written rules for the conduct of society’. That is of course correct in very general terms, but leaving aside the fact that rule-making authorities exist at different levels in society (national, state, municipal and other authorities such as those set up to manage airports and harbours, even down to local sports or social clubs of various kinds), the term ‘legislation’ is usually used to mean rules that are made by a body that has been given the power under the Constitution to make them. This body goes under a variety of names in different jurisdictions but it is typically referred to as ‘Parliament’.

  • The Role of Legislative Counsel

    Although legislative counsel may have been consulted, or even involved, at the policy-making stage, the formal starting point in the process of translating policy into legislation should be the reception of drafting instructions. Counsel should, in obtaining the necessary depth of understanding of the policy, be prepared to ask searching questions. He or she is, however, under a professional duty to look critically at the instructions and to point out where there seem to be aspects of the policy that might be in conflict with the Constitution or other legislation, or where aspects of the proposed legislation might for some reason be difficult to operate or enforce.

  • Background Legislation

    The Constitution and the Interpretation Act are of fundamental importance to legislative counsel, who must be completely familiar with the detailed provisions of both.

  • The Basic Elements of a Legislative Sentence

    In the early part of the nineteenth century, George Coode formulated basic principles concerning the aim of legislation and the basic composition of a legislative sentence that are relevant today. He found that legislation aims to regulate relationships between persons by securing a benefit to a person or class of persons. It does this: directly, by conferring a right, privilege or power on a person or persons; or indirectly, by imposing an obligation or liability on others.

  • Modern Commonwealth Conventions in Legislative Drafting

    It is an important rule of drafting legislative rules that the same words and expressions are used to mean the same things, as there is a presumption that the use of a different word or expression within the same item of legislation is intentional and indicates a shift in meaning.

  • Plain Language Drafting

    The general Commonwealth trend has been to move away from the traditional drafting styles of the past involving the use of largely unfamiliar words and expressions and lengthy sentences, which were thought to be necessary in the interests of conveying precise meaning. Recent changes in perception have recognised that legal writing generally, and legislation in particular, should be able as far as possible to be readily understood by those to be affected by it.

  • Structuring Legislative Drafts

    Each distinct legal proposition should be comprised in a single sentence. In legislative terms this means a section or subsection. If a legal proposition is contained in more than one subsection, each should have a close enough relationship to provide a unity of purpose.

  • Punctuation (and Capitalisation)

    The function of punctuation in legislation is, as in any type of writing, to facilitate comprehension and hence aid interpretation. Each of the punctuation marks used in legislation is examined, with commas (those that are in practice the most difficult) left to last.

  • Definitions and Interpretation Provisions

    It is important to remember that, in general, words in legislation carry their ordinary dictionary meanings and do not need to be expressly defined. However, sometimes it is necessary to restrict or enlarge that ordinary meaning (as commonly with, e.g., ‘person’, ‘document’), and many words are capable of carrying different meanings that can vary with the context in which they are used (e.g. ‘oil’, ‘theatre’). Sometimes a word is inherently vague or imprecise (words denoting means of transportation are common examples: ‘vehicle’, ‘aircraft’, ‘vessel’). It is in these cases that it becomes necessary to clarify the meaning for the purposes of legislation.

  • Words to use with Special Care (and Other Drafting Problems)

    The drafting of legislation requires very precise language. Unfortunately some of the commonest words in the English language are capable of being used loosely, leading to potential ambiguity or lack of clarity of expression. Other related matters: singular and plural, elliptical writing, indeterminate terms, gender-neutral drafting and expressions relating to time, will be examined in turn in this chapter.

  • The Legislative Scheme: Principles Governing the Type of Legislation Required and the Ordering of Its Provisions

    Fundamental questions to be answered - These are not always adequately addressed by those giving instructions to legislative counsel, and it is the latter’s responsibility to establish fundamental matters at the outset, such as matters relating to the type of legislation required: Can the required policy be implemented by amending existing legislation?; Is the new legislation to be self-contained or is more than one piece of legislation required?; Is it going to need amplification by subsidiary legislation, and if so,how far?

  • Introductory and Preliminary Provisions

    Introductory Provisions - the Long title is a brief statement giving a short summary of the principal way or ways in which the statute will affect the law by indicating the central legal mechanisms it employs. Before short titles became conventional (only in the latter part of the 19th century) the long title was the only title (statutes were conventionally more usually referred to by reference to the year or years of the reign of the monarch in which they were enacted), and it was a device for limiting the scope of parliamentary debate.

  • Final Provisions

    This chapter examines repeals, transitional and savings provisions, and Schedules. The first three of these are very closely interrelated.

  • Penal Provisions

    The same care must be taken to draft penal provisions as any others. Legislative counsel must be prepared to ask why a particular format has been used in the past, and whether aspects of the style used are appropriate in modern drafting.

  • Delegated Powers to Make Legislation

    Constitutional power to legislate is expressly vested in the body generally known as ‘Parliament’. Nevertheless, the power to legislate is often delegated by Parliament owing to: pressure on parliamentary time; the difficulty of legislating in detail; the technical nature of some legislation and its consequent unsuitability for parliamentary debate. Legislation produced as a result of this delegation is called variously: subsidiary legislation; subordinate legislation; delegated legislation; secondary legislation; statutory instruments; and statutory rules.

  • Amending Legislation

    Statutes may be amended in one of two ways: expressly, by an amending Act or, where so allowed by the legislation being amended, by subsidiary legislation; or impliedly, because of inconsistencies in different statutes that cannot stand together (but note that courts will attempt to interpret statutes, or provisions in them, so that both can remain in being and do not readily construe an implied amendment or repeal. However, a drafter should never rely on implied amendment.

  • Specific Types of Application

    Retrospective and retroactive provisions most commonly arise: in relation to transitional and savings provisions, where new provisions need to apply retrospectively to deal with past matters (for example, to apply new conditions to a licence previously granted or to apply a new procedure to an outstanding case or matter); and where validation is required for some previously unlawful state of affairs.

  • Statutory Corporations

    Functions of statutory corporations - a number of different kinds of activity can be identified which might lead to the setting up of a statutory corporation to oversee them: to regulate certain types of activity; to provide centralised management for important industrial, commercial or other activities or services; to bring a degree of independence to decision-making on matters in which the Government has an interest; to provide and operate certain public facilities or services out of public funds; and to provide an advisory or consultative input for Government decision-making.

  • Licensing Legislation

    In public law administration, two kinds of system are commonly used in order to authorise the carrying on of an activity that would otherwise be prohibited: licensing and registration. A licence is a legal device by which permission is granted, in public law terms normally by the Government or a public authority, by means of some form of official document to carry on the activity. A simple form of licence is often referred to as a permit. Registration is a process used for official recording of persons and/or activities in an authoritative list.

  • Financial Legislation

    The expression ‘financial legislation’ is commonly used in two senses. In its wider sense, it refers to the whole body of legislation concerned with all aspects of finance, including that dealing with banking, financial institutions, financial services, insurance, capital markets, loans, securities, etc. In its narrower sense, ‘financial legislation’ refers to the body of statutes concerned with public finance, in particular that of the central government, namely government accounting; expenditure; borrowing, guarantees and lending; and income from taxation.

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