The Principal Characteristics Of Commonwealth Drafting
The account you have just studied in the last Unit suggests some of the principal characteristics of drafting approaches in the Commonwealth. The following are features which are particularly marked in contrast with approaches in other systems of law, such as civil law systems, which are said to be cast in broad and generalised language that puts considerable emphasis on statements of principle.
- Policy objectives are implicit :Legislative instruments rarely articulate the policy objectives to which they give effect. Typically, these are left to be deduced from the terms of the legislation, Legislative Counsel having drafted its provisions appropriately so as to convert the policy into legal rules.
- No statement of general principles :Legislation rarely contains general principles governing legal relationships, from which particular requirements or applications have to be deduced. Since the function of the courts is to apply and interpret, and not make, legislation, the Legislature must provide, and be seen to provide, a body of particularised rules covering all foreseeable cases or at least to authorise the making of secondary legislation for that purpose.
- Specific and detailed rules :Legislation provides specific rules to govern or regulate the actions of persons whose behaviour is to be subject to the legislative scheme. In consequence, they contain a good deal of detail, designed to provide precise and certain guidance about the application of the rules.
- Compression of matter :To minimise the number of legislative sentences, the same sentence may contain the complete rule and its context, and sometimes an exception to it. In addition to making the sentence long and detailed, such compression can lead sometimes to a complex structure.
- Drafting devices :In order to minimise the adverse effects of this particularisation in legislation, drafters make frequent use of such devices as: a. definitions and interpretation provisions; b. concepts created uniquely for the statute.
- Technical legislative rules :Special rules governing the structure, operation and construction of written law are typically stated in an Interpretation Act and, to a much lesser extent, by the common law. Where these are silent or unsuitable, each legislative instrument has to provide its own technical rules on those matters.
- The relationship between provisions :Each proposition in a statute is treated as a separate enactment. Therefore, the exact relationship between different propositions on related matters must be made very clear. If that is not obvious from the context, linking words and cross-references must be provided (e.g. “subject to section 5”; “without prejudice to section 6”).
- Legalistic language :Since they provide legal rules, legislative sentences follow the language used in legal practice, as well as the terms used to describe established legal concepts. But in addition, sentences tend to have a more formal style and vocabulary than is found in ordinary usage; they can become tortuous and convoluted and reliant on unnecessary legal jargon.
These features continue to be central to much Commonwealth drafting. It is our task to build upon them but not at the expense of the objectives of good legislative drafting. As will be evident from what has just been described, they can give rise to excesses and abuse. In this Course we shall work on ways of avoiding those.