LGST 551
Introduction to Legislative Drafting (OCW)

 

LGST 551
Introduction to Legislative Drafting (OCW)

Study Materials

Module 2: Section 3

How should the principal subject be described?

You should keep in mind the following guideline when deciding how to describe the principal subject:

  1. Use the singular so that the provision is seen to apply to each legal person

    If the sentence has alternative subjects, each should be expressed in the singular.

    Example 8

    A trustee or receiver must not receive remuneration for providing a service under this Act.

  1. Consider the statutory context in which the term is to be used.

    Since a legislative sentence is construed in the context of the language of the legislative text overall, and in particular the surrounding sentences:

    • use the same term as you use elsewhere to express the same class of person;
    • use a different term if you are referring to a different class;
    • if you need to indicate that your provision applies to the precisely same person as is referred to in an earlier sentence, add appropriate linking words.

    Example 9

    1. (1) An executive officer ceases to hold office if convicted of an offence punishable by imprisonment for 12 months or more.
    2. (2)  An executive officer ceasing to hold office under subsection (1) is not entitled to receive superannuation under this Act.

      The same result can be achieved by using the definite article for the subject of subsection (2):

    3. (2) The executive officer is not entitled to receive superannuation under this Act.
  1. Consider the legal context in which the term is to be used.

    The general law contains provisions that apply automatically to particular categories of legal persons. For example, it imposes privileges or disabilities upon certain classes of persons, as in the case of children in respect of criminal prosecutions or the mentally incompetent in respect of certain kinds of civil transactions.

    The term for the subject specifically does not need to exclude these persons from the sentence; that occurs by operation of law.

  1. Use terms that clearly identify the legal person who is the subject

    Legislative counsel express the subject in a wide variety of ways. The form of words that is most appropriate typically depends upon the scope of the provision. As you will have recognised, some of the following devices are interchangeable. Choose the term to describe the subject that best suits the structure of the sentence.

    • a provision of universal application

      In a sentence that applies to everyone, use:

      • “a person”;
      • “any person”, “each person”, but only if emphasis is needed;
      • “no person”, in a negative rule, such as a prohibition.

      Note: “person” is commonly given an extended meaning to cover non-human legal persons, such as corporations, (see section 29 of the model Interpretation Act in the Resource Materials).

    Activity 1

    Confirm whether the Interpretation Act in your jurisdiction has a definition of “person”.

  • a provision directed to a class of persons

    A sentence that applies to everyone belonging to a particular class of persons normally needs a precise noun (in many cases, one that has a recognised legal meaning).

    Example 10

    “court” (to refer to judicial officers); “judge”, “police officer”, “owner”, “trustee”.

  • a provision directed to a particular office-holder

    In a sentence applying to a specific office-holder, use the title or name given to the office or to the body.

  • a provision applying to limited categories

    In a sentence that applies to a limited group of persons, or to specific members of a class, who share a common characteristic, use the relevant universal or class term with the addition of an appropriate modification.

    Example 11

    a convicted person (= adjective added)

    a police officer above the rank of inspector (= prepositional phrase added)

    a trustee acting through an agent (= participial phrase added)

    a person who owns a dog (= relative clause added).

  • a general provision applying with exceptions

    In a sentence that applies to everyone, or to everyone in a class, except for specific persons, use the relevant universal or class term with the addition of the appropriate qualification.

    Example 12

    Any person other than a public officer

    A trustee, except a trust corporation

  • a provision containing the legal person in the context clause

    If the principal clause applies to a person mentioned in an earlier context clause in the same sentence, consider using a pronoun to refer back, but:

    • the legal person must be precisely identified in the context clause;
    • the pronoun must relate back to that legal person without ambiguity.

    Example 13

    When the court has reason to believe that the accused lacks mental capacity so as to be incapable of making a defence, it must hold an inquiry into that matter.

  1. Also consider the following practices to simplify the expression of a subject:
    • using a term for which a definition is provided (either by the Interpretation legislation or in your legislation).
    • using an application provision to indicate a class of persons to which the legislation or section or Part does or does not apply.

    These devices are dealt with in detail in LGST 555, Module 1, Section 4 (How do we draft interpretation provisions?) and Section 6 (When and how do we draft application provisions?).

    Example 14

    Definition:

    1. 2.-(1) A trustee who sells property of a unit trust scheme at a discount commits an offence.
    2. (5) In this section, “trustee” means the person holding the property in question on trust for the participants in the scheme.

    Application provision:

    1. 12. References in this Part to “second-hand dealer” are to be understood as explained in this section.
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