Module 2: Section 3
What practical points should be borne in mind?
In drafting savings and transitional provisions, consider the following:
- Although savings and transitional provisions may be covered by the generalised rules in the Interpretation Act, consider whether provisions focused on the precise cases to which your draft give rise are preferable. In some jurisdictions, the Interpretation Act contains no rules for repeal and replacement, and that many of its provisions on simple repeals are not suited for cases where statutory continuity is called for.
- Identify the classes of case that you are saving with precision using the terminology of the existing law.
- Extend transitional provisions to existing matters in express and precise terms, using the terminology of the former law to describe the matters.
- Distinguish retrospective and prospective cases by indicating whether they arose before or arise after the commencement of the new legislation.
- Cover each distinct category of saving or transitional matter in a separate provision in the final provisions of the legislation (for example, a section, subsection or a paragraph in a Schedule).
- Set out any time limits for the operation of transitional provisions with precision and by reference to the commencement of the new legislation. Time limits should not be selected in an arbitrary way. Fix them by assessing the time needed to carry out what has to be done in this period of transition.
- Make sure that the transitional provisions are seen to produce that effect. Do not leave users to decide whether they can ignore provisions because they do not seem to be suitable or relevant.
- Ensure that the saving and transitional provisions come into force at the same time as the provisions of the legislation with which they are connected. Typically, a single date is set for the commencement of the legislation. But some legislation may be brought into force by stages, with different dates for different provisions (as we saw in Module 5, Section 3—How do we draft commencement and duration provisions?). In that case:
- determine which saving or transitional provisions are linked with which substantive rules;
- make sure that these provisions and the rules can be brought into force at the same time, and separately from other provisions and rules that might be brought into force at another time.
The responsibility for bringing such linked sections into force together falls upon the drafter of the commencement order. But you, as legislative counsel, should place these provisions in distinct clauses so that they can be readily specified, with the substantive provisions to which they are linked, in the commencement order.
- Always check that the operation of transitional provisions will provide a smooth passage for users from the old law to the new.
Practice what you have learned. It is time to complete exercise 37.
Use the “Navigation” menu on the left to click on “Activities” and then “Quizzes” to find the Exercises.