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Principled Drafting-How Have These Developments Influenced The Way In Which We Draft?

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Principled Drafting-How Have These Developments Influenced The Way In Which We Draft?

To counter these trends, it has been proposed that legislation should move away from the traditional styles. So, it has been urged, greater prominence should be given to statements of principle, rather than a detailed elaboration of rules to regulate the legal relationships of those concerned with or affected by the legislative scheme (e.g. Sir William Dale, Legislative Drafting: A new approach (1984)). There is little evidence that such a radical shift will be adopted. Two principal reasons are commonly given:

  1. This approach may produce less detail in the legislation as to responsibilities of those affected, but in consequence: (a) that detail might have to be settled by the courts or by Executive direction or decision; (b) this could lead to a reduction in the authority of the Legislature, which constitutionally and traditionally is the body expected to settle such matters.
  2. . The costs and burdens to the user of unfamiliar methods of working with legislation are likely to outweigh any benefits of improved intelligibility from a greater use of statements of principle. 

Plain Language Movement

Instead, there is now a welcome trend to return to the principles put forward by Coode and Thring (pioneered by E A Driedger, Composition of Legislation, (2nd ed, 1976)). In particular, there have been serious efforts in some countries to:

  1.  work out how those principles can once more be applied to the legislative circumstances and drafting requirements of today; and 
  2. eliminate those recent practices that have tended to defeat the aims behind those principles. 

This is particularly evident in Australia, where the impact of a “plain language” movement upon drafting has been considerable. This followed from a wider anxiety about the clarity of legal documents, especially those intended for direct use by members of the public. The most thorough examination of the matter to date is that of the Law Reform Commission of Victoria (Report on Plain English and the Law

(1987)). As part of this exercise, the Commission prepared a Manual for Legislative Drafters which aims: to help people involved in legislative drafting to prepare Acts which communicate their message efficiently and effectively.

Proposals on this matter have not been limited to the composition of legislation. Others have been made with respect to the organisation and formatting of legislation to enable the contents to be more readily understood (Law Reform Commission of Victoria, Report on Access to the Law: the structure and format of legislation (1990)). Other sources are mentioned in the Reference.

These initiatives have been accompanied in Australia by general directions on drafting from Attorneys-General to legislative drafting offices, which have themselves begun to develop contemporary drafting techniques to improve the legislative expression and the structure and presentation of legislation. This Course takes account of these developments.

How Have These Developments Influenced The Way In Which We Draft?

The early developments established theoretical underpinnings for the common law approach. They also provided a coherent body of principles with respect to legislative syntax (i.e. the way that legislative sentences should be written), and generally relating to legislative expression. The later developments built upon these foundations.

What Foundations Did They Lay?

Since the groundwork for our current approach was done by Coode, it is valuable to look briefly at his analysis. Coode believed that a more acceptable style would be practised if certain principles were followed in writing all legislative sentences. The following summarises, first, the theoretical premises upon which he built and then the principles themselves.

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