Module 3 - Working within Limits: Preview
Legislative drafting is concerned with the governance of your jurisdiction. Its practice is influenced by the general legal context that prevails there. That context is shaped by the Constitution of your jurisdiction, by its system of law, law-making processes and form of government and by the legal and judicial values that prevail there.
This Module deals with four contextual features typically found in jurisdictions based on the parliamentary model that are of particular relevance to legislative counsel:
- interpretative approaches and rules developed in the main by the judges to help resolve uncertainties of meaning and application;
- interpretation legislation, which contains legislative rules about the construction, interpretation, application and operation of legislation;
- the constitution that creates the institutional framework within which legislation is made and implemented, and which imposes constraints on the allocation and exercise of public power;
- fundamental rights and freedoms, which are often found in constitutions or protected under international treaties to which many jurisdictions adhere.
All these topics affect the way drafting is carried out, including both its form and content. They also involve underlying values concerning the way written law should be used in a democratic and law-governed society.
By the end of this Module, you should be able to do the following:
- take into account interpretive approaches and rules applied by common law judges, including the principal interpretive assumptions and presumptions;
- apply the drafting practices recognized by the interpretation legislation in your jurisdiction and generally implement its other requirements;
- work within the constraints imposed by your jurisdiction’s constitution, and take full account of its requirements so that the legislation is not vulnerable to legal challenge;
- draw attention to legislative proposals or provisions that may be inconsistent with the fundamental rights and freedoms protected in your jurisdiction and find ways to achieve consistency.
Studying this Module
This Part is divided into four sections:
- How do we work with interpretive approaches and rules?
- How do we work with Interpretation Acts?
- How do we work with the Constitution?
- How do we work with fundamental rights and freedoms?
All these sections are long and demanding. They also deal with basic principles and values, which merit your attention and thought. Tackle them in separate study periods. You may require several for each.
Sections 1 and 2 should be studied one after the other, since they are linked by a common theme. You will gain more from them if you have first carried out work on legislative expression. You will then have a clearer picture into which to paint these topics. You should work with them after you have completed LGST 551, Module 2 - Writing legislative sentences. Subsequent Modules are written on the assumption that you have completed both Sections, particularly Section 2.
You should be familiar with many features of Section 1 and for that reason may be able to complete it relatively quickly. But Section 2 introduces many matters that are likely to be new to you and have important consequences for drafting. You will need to spend more time on that Section.
Sections 3 and 4 deal with a different subject area, though they too are closely linked. You should study them in sequence. The matters examined in them are relevant to other Modules to a limited extent only. They can be studied at almost any point. But we suggest that you do so after you have acquired the basics of legislative writing and have completed LGST 551, Module 2 - Writing legislative sentences. These Sections are not concerned with developing particular drafting skills; they contain more descriptive material than many other Modules. So work on them may make a welcome contrast with the Modules that are more skill-based.
Section 3 calls for you to complete many activities in order to gather relevant local information. Section 4 contains much that is likely to be new, either from a legal standpoint or in terms of approach. Neither Section should be studied too quickly.