Module 1: Section 1
How do we draft compliance provisions?
The criminal law is the principal mechanism used to prevent or control anti-social behaviour and unacceptable activities. Many statutes, including those that impose regulatory requirements, are enforced through penal provisions. Since individual liberty may be affected, legislative counsel have to take particular care to produce drafts that clearly state the circumstances in which the provisions may be applied and the limits upon the use of related enforcement powers. But legislative counsel should be prepared to consider the range of alternative methods to secure compliance that are described in this Section, some of which may be as effective as penal provisions, but without its expense and repercussions.
However, this Section is concerned mainly with penal provisions and the way they are conventionally drafted in parliamentary jurisdictions. In addition, we work out the steps that might be followed in settling the contents of penal provisions.
By the end of this Section, you should be able:
- to describe the main alternatives to penal provisions for securing compliance with legislation;
- to adopt a systematic approach for determining the contents of penal provisions;
- to draft penal provisions, in keeping with the practice in your jurisdiction:
- to create substantive criminal law;
- to provide for the enforcement of a legislative scheme.
This Section is divided into three subsections that consider the following questions:
- GENERAL CONSIDERATIONS
- When are penal provisions likely to be useful?
- What alternatives are there to penal provisions?
- What factors should we bear in mind when using these alternatives?
- DETERMINING WHAT PENAL PROVISIONS ARE REQUIRED
- What general factors should we bear in mind?
- What steps should we take to determine the content of penal provisions?
- DRAFTING PENAL PROVISIONS
- How should we draft penal provisions?
- How may offence provisions be expressed?
- When should we use these different forms?
- Can the style of writing offence provisions be improved?
- What particular points should we look out for when:
- describing the offender;
- prescribing the conduct;
- including the mental element;
- providing special defences?
- When might penal provisions also give rise to civil liability?
Studying this Section
This Section covers a great deal of ground, although the subject matter - criminal law - and the general form of penal provisions should be familiar to you. It is written on the assumption that you have a good grasp of the basic concepts of the criminal law.
Subsection 1 can be covered reasonably quickly, but if it raises issues that are new to you (as it may well), ensure that you fully understand their implications for your drafting.
Subsection 2 suggests a systematic approach for deciding on the contents of penal provisions. It can also be used as a reminder of those concepts. Consider extracting the chart in this subsection as a checklist to which you can refer until you have developed an approach that suits your style of working.
Subsection 3 contains the principal matter and should command most of the time spent on this Section. It contains a considerable number of examples, activities and exercises. These are designed to bring out points in the practice in your own jurisdiction that call for particular attention, and to provide an opportunity for you to try your hand at them. You may need to look carefully at the examples to gain a clear insight into the techniques under consideration. You may find that some of these use more direct forms than are conventional in your jurisdiction. Try them out as part of your studies. But be sure that they are suitable for your jurisdiction before you put them into practice. You must comply with the drafting practices of your jurisdiction here as elsewhere.
In studying this Section, you will need to refer regularly 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.