Module 1: Section 3
How do we draft subsidiary legislation?
This Section concentrates on subsidiary legislation. Much of the earlier Materials has been focused on Bills, though in many respects what is discussed there is equally relevant to subsidiary legislation. Here we look at the special demands made by this kind of legislation, and in particular the responsibilities of legislative counsel.
In some jurisdictions, the legislative counsel who drafted the enabling legislation also drafts the subsidiary legislation. This can bring efficiencies to the drafting process because the legislative counsel already has an understanding of the legislative context. However, in many jurisdictions preparation of this type of legislation is undertaken by legal officers attached to the executive authority on which the legislative power is conferred. Even when a centralised drafting office deals with both primary and subordinate legislation, subsidiary legislation is often not drafted by the same legislative counsel who drafted the enabling legislation. Those who draft the subsidiary legislation come to this task with a fresh perspective. This calls for a distinct approach.
Subsidiary legislation has its own forms and has to comply with distinctive conventions, which vary a little from one jurisdiction to another. You must be able to prepare instruments according to the local style in your jurisdiction.
By the end of this Section, you should be able:
- to determine what matters may need to be dealt with in a simple subsidiary instrument;
- to prepare and draft the main types of subsidiary legislation in keeping with the practice and style in your jurisdiction.
This Section is divided into four subsections organized in terms of the following questions::
- GENERAL CONSIDERATIONS
- How does drafting subsidiary legislation differ from drafting Bills?
- DRAFTING APPROACH
- How should we approach the drafting of subsidiary legislation?
- How do we check to prevent unauthorised subsidiary legislation?
- DRAFTING DETAILS
- What forms can subsidiary legislation take?
- What are the characteristic features of subsidiary instruments?
- What type of instrument is required?
- What headings are required?
- What authorising words should be used?
- How should the title be drafted?
- When should provision be made for commencement?
- When should definitions be included?
- What special factors should be borne in mind in drafting substantive provisions?
- Should section notes be provided?
- Are there special features for amending, revoking or re-enacting provisions?
- What signifying words are needed?
- How should the making of the instrument be dated?
- Should an Explanatory Note be added?
- DRAFTING EXECUTIVE INSTRUMENTS
- What should we bear in mind when drafting executive instruments?
Studying this Section
You should find that you already have a good deal of relevant background knowledge which should help in studying this Section. Much of it is concerned to draw attention to particular features of drafting subsidiary legislation. This requires you to compare model provisions in the text with those currently used in your jurisdiction. You should not find too much difficulty in discovering what you need to provide, but it may be useful to make a short checklist that you can refer to until you are fully conversant with local practice.
Subsection 2 is designed to enable you to develop a systematic approach to preparing instruments. It includes a statement of questions you may need to ask to ensure that the subsidiary legislation you are drafting is authorized. Take your time when studying these. Do not expect to remember all the individual questions. They illustrate the kinds of matters you are looking for. Make sure that you fully understand the ways in which unauthorized provisions can arise. You will then be able to devise your own ways of looking for them. You can remind yourself from this part about what you are looking for.
Subsection 3 contains points that are new but they should fit easily with the knowledge you have acquired both from your earlier work and from actual practice. Again, you may find the 12 questions relating to the components of subsidiary legislation a useful checklist. But remember that you should approach the task of composing the substantive provisions of subsidiary legislation as you would provisions of a Bill. All that you have learned about legislative expression applies to subsidiary legislation as it does to Bills.
Subsection 4 draws attention to differences in approach that you may have to adopt when drafting executive instruments.
In studying this Section, you will need to refer from time to time to the interpretation legislation of your jurisdiction and to the model Interpretation Act in the Resource Materials.