Module 1: Section 3
What are the principal characteristics of this form of drafting?
The account you have just studied suggests some of the principal characteristics of drafting approaches in parliamentary jurisdictions. The following features have traditionally distinguished these drafting approaches from those in other jurisdictions, particularly those having civil law systems, which tend to be cast in broader and more generalised language that puts considerable emphasis on statements of principle.
Policy objectives are implicit
Legislation does not have to articulate its policy objectives. Typically, these are left to be deduced from the terms of the legislation, Legislative counsel having drafted its provisions appropriately so as to convert the policy into legislative provisions.
Fewer statements of general principles
Legislation rarely contains general principles governing legal relationships, from which particular requirements or applications have to be deduced. Since the function of the courts is to apply and interpret legislation, and not make it, Parliament must provide, and be seen to provide, a body of particularised rules covering all foreseeable cases or at least to authorise the making of subsidiary legislation for that purpose.
Specific and detailed rules
Legislation provides specific rules to govern or regulate the actions of persons whose behaviour is to be subject to the legislative scheme. In consequence, it contains a good deal of detail, designed to provide precise and certain guidance about its application.
Compression of matter
To minimise the number of legislative sentences, the same sentence may contain the complete rule and its context, and sometimes an exception to it. In addition to making the sentence long and detailed, such compression can lead sometimes to a complex structure.
In order to minimise the adverse effects of this particularisation in legislation, legislative counsel make frequent use of such devices as:
- definitions and interpretation provisions;
- concepts created uniquely for the statute.
Technical legislative rules
Special rules governing the structure, operation and construction of written law are typically stated in an Interpretation Act and, to a much lesser extent, by the common law. Where these are silent or unsuitable, each legislative instrument has to provide its own technical rules on those matters.
Relationship between provisions
Each proposition in a statute is treated as a separate enactment. Therefore, the exact relationship between different propositions on related matters must be made very clear. If that is not obvious from the context, linking words and cross-references must be provided (for example, “subject to section 5” or “without prejudice to section 6”).
Since they provide legal rules, legislative sentences follow the language used in legal practice, as well as the terms used to describe established legal concepts. In addition, sentences tend to have a more formal style and vocabulary than is found in ordinary usage; they can become tortuous and convoluted and reliant on unnecessary legal jargon.
Although these features continue to be prominent in many jurisdictions based on parliamentary models, they are diminishing in others, for example in Australia and Canada. These changes are in large part motivated by concern about the usability problems that these features often entail. These Materials discuss these concerns and what can be done to address them.