Module 2: Section 3
Section 3 Preview
When do we need transitional and saving provisions?
In this Section, we are concerned with matters that are vital for the coherent introduction of new legislation to ensure that the relationship between the existing law and the new legislation, and the transition from one to the other, are properly bridged.
These provisions determine how circumstances that have already arisen under existing law are to be treated after that law is amended (including by being repealed or replaced). Matters of these kinds require the drafter to exercise careful judgment as to when they are needed and what they should contain.
By the end of this Section, you should be able to do the following:
- decide when saving and other transitional provisions are necessary;
- draft sound saving and other transitional provisions.
This Section is divided into four subsections organised in terms of the following questions:
- General Considerations
- What is the function of transitional provisions?
- How do saving provisions differ from other transitional provisions?
- What purposes do these provisions serve?
- How important are these provisions?
- Are these provisions required in all legislation?
- When should you work on these provisions?
- Legal Effects of Repeals
- What are the legal consequences of a repeal?
- What are the common law rules on the effects of repeals?
- What modifications are made by the Interpretation Act?
- How should the Interpretation Act be used?
- Content of Saving and Other Transitional Provisions
- What matters are likely to require these provisions?
- How are unqualified saving provisions expressed?
- How are transitional provisions affecting past matters expressed?
- How are provisions instituting transition arrangements expressed?
- Drafting Saving and Other Transitional Provisions
- How does the presumption against retrospective legislation relate to these provisions?
- How do we decide which matters should be saved?
- What forms may saving provisions take?
- How should the drafting of transitional provisions be approached?
- What forms may transitional provisions take?
- What practical points should be borne in mind?
Studying this Section
The aim of this Section is to make you familiar with the way in which transitional and saving provisions are dealt with in legislation and to develop approaches that are appropriate to enable you to decide:
- when these provisions are needed;
- what kinds of matters should be covered by these provisions;
- how these provisions can best be drafted.
The Section contains numerous examples, which require careful attention. You are also invited to examine closely how the sections of the Interpretation Act in your jurisdiction dealing with the legal effects of repeals and amendments affect the treatment of these provisions.
In studying this Section, you will need to refer frequently to the Interpretation Act in force in your jurisdiction (with all current amendments) and to the model Interpretation Act in the Resource Materials. Make sure that you have both available before you start work on this Section.
The importance of saving and other transitional provisions is often overlooked and their preparation can be difficult for those unfamiliar with their use. You may need to re-work some of this material to confirm your understanding.