Module 1: Section 6
Section 6 Preview
When and how do we draft application provisions?
This Section looks at application provisions and begins by discussing them generally. It then considers three particular types that must be used carefully:
- provisions to determine the when legislation applies (“temporal application”), including its application in the past;
- provisions making legislation apply to the State (“binding” the State);
- provisions making legislation apply outside the borders of the State (“extra-territorial application”).
These types are the subject of important interpretative presumptions about the application of legislation, with which you must be familiar. You need to know when it is safe to rely on these presumptions and when they should be reinforced or displaced by express provisions.
In this Section your objectives should be to learn when to use and how to draft appropriate application provisions, in particular those that
- apply provisions to circumstances that are already in being when the legislation comes into force;
- make legislation bind the State;
- give legislation extra-territorial application.
You should also aim:
- to be aware of when an application provision is needed;
- to become familiar with the circumstances in which the presumptions connected with retrospective legislation, binding the State and extra-territorial extension arise;
- to be able to write provisions that confirm or displace the presumptions, when necessary.
This Section is divided into four subsections organised in terms of a series of questions.
- Application Provisions Generally
- What assumptions underlie the application of legislation?
- When should application provisions be used?
- When are application provisions most commonly used?
- How should application provisions be drafted?
- Application to Things in the Past
- What types of past-application are there?
- How has past-application generally been treated in law?
- When should retroactive provisions be drafted?
- When should retrospective provisions be drafted?
- When should provision be made for procedural changes?
- Provisions Binding the State
- What are the relevant presumptions?
- What are the legal effects of these presumptions?
- How do we draft provisions to bind the State?
- Extra-Territorial Application
- What is the relevant presumption?
- What legislative competence is required to make extra-territorial legislation?
- Do the presumptions relate to the law of other countries?
- What territorial limits are envisaged?
- What are the drafting implications of the presumptions?
Studying this Section
This Section is lengthy and builds on an understanding of some complex provisions of interpretation. If the latter present difficulties, it may be necessary to look at an authoritative text on the matter. As the Section deals with distinct topics, you may readily study each in separate study sessions.
Throughout this section there are references to the model Interpretation Act in the Resource Materials. You should keep a copy of it handy.