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Drafters’ Aims and Constraints On The Drafter

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Drafters’ Aims and Constraints On The Drafter

The drafters who are preparing new legislation to implement policies decided upon by Government usually endeavour to draft it in terms which are as direct, logical and clear as their skill and expertise can ensure. But their primary aims are to be certain and unambiguous. Legislative Counsel must do their best to ensure that –

  1.  the intentions of the policy-makers are exactly met; and
  2. as far as possible, both those general policy aims and the particular applications of the new policy are realised.

In principle, counsel should choose language that admits of no doubt as to what is demanded. That is far from easy. Indeed, it is impossible to eliminate all doubt and attempts to do so may lead to excessive detail and only complicate the legislation. In some instances, it is sensible to use expressions that deliberately leave issues of exact meaning to, e.g. the courts that have to apply the legislation to unpredictable fact situations.

Constraints On The Drafter

The common law system works upon the principle that the judges may not vary, qualify, add to or diminish requirements laid down by an Act of a sovereign Parliament. In consequence, if statutory rules are to be subject to exceptions or limitations, for example, these must be set out in the legislation. The result is that even quite straight-forward legal regulations may have to contain detailed qualifications or other terms that put beyond question the exact scope of their application. Policy-makers or members of the Legislature may insist upon the inclusion of such provisions.

In our nascent democracy, in particular, legislation is often prepared under a most demanding timetable, during which the requirements of concerned Government departments and other interested bodies must be established and fully provided for. Complicated situations have to be covered comprehensively in the draft legislation with an exactness of expression that aims to prevent doubts concerning foreseeable contingencies to which the rules may be applied.

Yet time constraints may mean that drafters have to draft broadly expressed rules because there is insufficient time to explore every conceivable detail. However, when the legislation is examined by those who must administer it, the intentions of the law-makers as to its application in given circumstances should be ascertainable without recourse to the courts, even though close study may be necessary.

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