Module 2: Section 2
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How should we repeal and amend legislation?
You are likely to be called upon often to draft legislative texts to make changes to existing Acts and subsidiary instruments. The predominant method for making substantive changes to legislation in parliamentary jurisdictions based on the Westminster model is by amending existing legislation rather than by introducing completely new legislation. Even when new substantive legislation is prepared, consequential amendments to existing legislation are frequently needed to make it fully consistent with the new legislation.
Drafting repeals of entire pieces of legislation is less common and more straight-forward. They are needed when an Act or piece of subsidiary legislation is no longer needed, or when it is to be replaced or re-enacted. Repeals of provisions within a legislative text are generally treated as part of the process of amendment.
In this Section, we explore how repeals and amendments are best made, in particular the technique of direct textual repeal or amendment, and the pitfalls to be watched for. We place emphasis on using this technique rather than relying on repeal or amendment by implication.
We also consider how you may develop a procedure for working out repeals and amendments needed in particular cases, and how they are to be dealt with in your draft. We introduce you to devices for communicating to the various classes of users the nature and effect of repeals and amendments, which are not always apparent on the face of a legislative text. In addition, your attention is drawn to the steps that may be needed for amendments to Bills during the parliamentary process. Legislative counsel who work for a legislative assembly are especially likely to be engaged in that task.
Objectives of this Section
By the end of this Section, you should be able:
- to work out systematically what repeals and amendments are needed when drafting a legislative text;
- to draft provisions for repealing complete instruments;
- to draft substantive or consequential amendments in keeping with the practice in your jurisdiction;
- to avoid the more common errors when drafting repeal and amendment provisions;
- to describe the principal techniques for adding formal information to a legislative text explaining the effects of the amendments it is to make;
- to give an account of the responsibilities of legislative counsel in your jurisdiction with respect to the preparation of amendments to Bills during the legislative process.
This Section is divided into seven subsections in which we consider the following questions:
- General Considerations
- How do repeal and amendments differ?
- Does amendment involve repeal?
- How can legislation be repealed and amended?
- When is legislation impliedly repealed?
- Should repeals and amendments be made by primary or subsidiary legislation?
- When are repeal and amending provisions needed?
- When should we replace rather than amend legislation?
- Deciding What to Repeal or Amend
- How do we decide what needs to be repealed or amended?
- How do we prepare for repeals?
- How do we prepare for amendments?
- Drafting Repeal Provisions
- What should be our objectives when drafting repeal provisions?
- How are repeal provisions drafted?
- Are there any special features for re-enacting or replacement legislation?
- Drafting Amendments
- What methods of amendment can be used?
- What should be our objectives when drafting amendments?
- How should amendments be arranged?
- How should we draft amendments?
- Concluding Questions
- What can go wrong when drafting repeals and amendments?
- How can we explain the effects of amendments?
- How do we draft amendments for the parliamentary process?
Studying this Section
The first four subsections provide essential background information on amendments and repeals. You should review them carefully before you move on. They are concerned with the actual mechanics of drafting repeals and amendments. Make sure that you have absorbed the main lessons in a subsection before moving to the next. A series of exercises are provided for you to test your progress, principally in subsection 4. You should also keep handy the model Interpretation Act in the Resource Materials, which is referred to throughout this Module.
Subsections 3 and 4 are the most demanding. You may find it helpful to compile your own checklist of the recommended steps and techniques described in these subsections. In addition to the exercises, we ask you to complete a number of activities as a way of finding out local practice in comparison with what is illustrated in the examples. You will need to have available representative examples of local amending legislation.
Subsection 5 includes a list of questions to ask yourself to avoid making mistakes when drafting amendments. It is complementary to subsections 3 and 4. You can confirm what you have learned in those subsections by comparing your checklist with this list of questions. These lists should contain useful reminders of what to do.
Subsection 5 also contains descriptive material on explanatory information and drafting amendments for parliamentary purposes. This material is in the main designed to enable you to find out the practice in your jurisdiction. The material on explanatory information may have little current practical application, but as communication of legislative intention is an issue of increasing concern, you should be aware of trends in other jurisdictions.
This is a very long Section that deals with difficult aspects of drafting. Do not attempt to cover all the ground in a single session. Do not hesitate to go back over some ground, particularly in Subsections 3 and 4, when you come to the end of the subsection.