LGST 551
Introduction to Legislative Drafting (OCW)


LGST 551
Introduction to Legislative Drafting (OCW)

Study Materials

Module 2: Section 3

How do we choose the subject of a declaratory sentence?

A declaratory sentence may have a subject that is not a legal person, but an impersonal noun. These sentences generally make statements about the law, rather than prescribing rules that direct behaviour. The subject of the sentence is the matter to which the statement attaches legal effects or consequences. It may be a thing, a legal term or a statutory feature.

Activity 2

We saw some examples of declaratory sentences in Section 2 of this Module under the heading “How do legislative counsel write particular kinds of sentences”. Review those again.

When composing a sentence to make a legal statement, choose as the main subject the principal matter to which the legal statement relates.

  • Legal statements that have general effect

    If the rule in the sentence has a general legal effect that is to be universally recognised, no particular persons are specially affected. These provisions are commonly used for stipulating procedures that are to be followed or their legal consequences.

Example 15

An original certificate that is signed by the maker and that complies in other respects with this section may be used in a trial or enquiry as prima facie evidence of the facts and opinions stated in it.

  • When the legal person is obvious

    An action or activity can be made the subject if:

    • it is already referred to in an earlier sentence;
    • it can only be performed by specific legal persons already referred to in earlier sentence.

    This is a useful device for providing for continuity between sentences in the same section, without repeating too many words. But make sure that there is no ambiguity as to the legal persons whose action or activity is referred to.

Example 16

  1. (1) A person must not carry on the business of dealing in second-hand motor vehicles unless that person holds a licence issued under this Act.
  2. (2) An application for a licence is to be made to the local government council for the area in which the applicant proposes to carry on the business.

The highlighted words connect the sentence with the preceding one, and avoid the repetition of the legal person comprising its subject.

  • When the provision has universal application

    An action or activity may also be made the subject if it must or may be performed by anyone falling within the terms of the rule. This too may be used in a sentence that is one of a series of sentences (for example, in a section), when the action or activity is elaborated upon in the other sentences. The full context removes doubt as to who may be affected by the sentence.

Example 17

Gaming is lawful if, and only if, it is conducted in accordance with the conditions specified in this Act.

This sentence lays the foundations for an Act that provides a complete set of conditions that determine when gaming is lawful. It is clearly of universal application, though later sentences impose conditions that determine when particular persons may rely upon the authorisation.

  • Interpretation provisions

    Sentences containing statements that explain how written legal rules or expressions are to be used or interpreted have universal force, and are not focused on particular persons. The subject is the term to which the definition relates.

Example 18

In this Act, [the expression] "animal" does not include a domesticated animal.

  • Application or referential provisions

    Sentences stating cases to which specific parts of the written law are to be applied or are linked are intended to be given effect by whoever uses the legislation. The subject is the term used to refer to the relevant part.

Example 19

This Part applies only to legal practitioners not holding a current practising certificate.

Practice what you have learned. It is time to complete exercise 7.

Use the “Navigation” menu on the left to click on “Activities” and then “Quizzes” to find the Exercises.

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