Legislative Drafting

Legislative Drafting Module Eight

AP Herbert I’m the parliamentary draftsman and I make the country’s law. And of half the litigation I’m undoubtedly the cause... I’m the parliamentary draftsman and they tell me it’s a fact. That I often make a muddle of a simple little Act. I’m the parliamentary draftsman and they take me in their stride. Oh, how nice to be a critic of a job you’ve never tried

Hilary Penfold QC “Legislative drafting is an inherently difficult task.” “A common view of drafting instructions is that they are, more or less, complete instructions (whether written or oral) to the drafter about what is required in the legislation. This view tends to be accompanied by a belief that drafters are mere scribes, and not particularly good ones at that.”

Sources: • http://www.judcom.nsw.gov.au/publications/education_monographs_l/monograph 4/statutory_interpretation.pdf • http://www.pcc.gov.au/pccconf/conference-paper -index.htm#3 • http://www.aph.gov.au/library/intguide/law/statutelaw.htm

Political context? • ...although there can on occasions be pressure from sponsors of legislation to do so for presentational reasons... • Paul Lanspeary

Process of drafting legislation • Begins with an idea – a ‘political’ idea • Needs a Ministerial sponsor • Addresses a perceived need or problem – the mischief or purpose

Drafting instructions • What are the instructors trying to achieve? • Do they need legislation at all? • Federal – is there constitutional power ? • What are the possible legislative options? • Are there gaps in the policy as expressed? • Are there other matters which need to be considered?

Penfold: • Terrifying moment ... If an instructor tells a drafter that the first draft is entirely satisfactory, that almost certainly means he or she had not read it. It can be very distressing to the drafter to know that there is no-one in the world who both knows what is actually in the Bill and what the Bill is meant to achieve.

Explanatory memoranda • Different process State and Federal • Written in parallel with bill • Expanded use – s15AB • Penfold: In the past, lengthy or complex provisions might have been included in a Bill to clarify the application of other provisions to particular, highly unlikely, cases, or to resolve a potential ambiguity in a provision, even if both the drafter and the instructors were confident that the problem was unlikely to arise, or that if it did, a reasonable court could not possibly adopt an interpretation other than the intended one....These days such a case might be handled by a paragraph in the explanatory memorandum.

BUT... OPC Service Charter: • That you will ensure that any material you prepare to accompany the draft legislation (in particular the explanatory memorandum and the second reading speech) does not in any way misrepresent the contents of the legislation.

AND... • Threshold tests may not be met; • The court might decide that it must give effect to its interpretation of the legislative text despite a statement in the explanatory memorandum to the contrary; • The court might decide that the statement in the explanatory memorandum is wrong.; • The court might decide to exercise its discretion to refuse to take into account extrinsic material.

Drafting challenges: • Audience • Time • Access to experts • Political imperatives • Pre-emptive legislation • Parliamentary amendments • Parliamentary amendments may be good for democracy but they are not good for the coherence of legislation

Examples of pre-emptive legislation • Section 6 of the AUSSAT Repeal Act 1991 provides as follows: 6 AUSSAT not within the shield of the Crown To avoid doubt, AUSSAT: (a) is not, does not form part of, does not represent, and is not an instrumentality or agency of, the Crown; and (b) is taken never to have been, formed part of, represented, or been an instrumentality or agency of, the Crown. • Section 34WA of the Australian Security Intelligence Organisation Act 1979 provides as follows: 34WA Law relating to legal professional privilege not affected To avoid doubt, this Division does not affect the law relating to legal professional privilege.

Parliamentary amendments: • Penfold: • Parliamentary amendments may be good for democracy but they are not good for the coherence of legislation

Drafters’ attitude to interpretation rules • Penfold: If the drafter recognises a potential problem in the Bill, he or she will try to resolve the problem before the Bill is finalised, rather than relying on the courts to solve it by applying a rule of interpretation.

s15AA: difficulties • Palgo Holdings Pty. Ltd. v. Gowans [2005] HCA 28 • Different extrinsic material referred to; different approach to purpose • Both the majority and Kirby J said that they were adopting a purposive approach, but they reached diametrically opposed conclusions (Lanspeary)

Lanspeary: • Even after the enactment of section 15AA, relying on a purposive approach can be unsafe

s15AA: difficulties • Court may not want to use a purposive approach; • Commissioner of Taxation v. Ryan (2000) 201 CLR 109 • Majority – reference to purpose not required; Kirby J dissentient. • Court may not be able to identify purpose; • Palgo Holdings v Gowan • Court may not ‘correctly’ identify purpose; • Cole v. Whitfield (1988) 165 CLR 360

Avoid reliance on purpose: • Guarantee the legal effectiveness of legislation; • Minimise impact on users of legislation; • Text should be complete.

Rely on purpose: • To address unforseen issues; • To reduce detail and complexity and make the legislation more ‘readable’; • Deliberate policy decision to draft ambiguously.

Human Rights (Sexual Conduct) Act 1994 4 Arbitrary interferences with privacy (1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.

To ensure purposive approach? • Objects clause • COMPETITION AND CONSUMER ACT 2010 - SECT 2 Object of this Act The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection.

Drafting and the Rule of Law • The great virtue of the rule of law is to provide certainty and predictability, so that people and businesses know how to order their lives and activities. It is more important infrastructure, in my view, than roads and railways, dams and generators. But I also think that that infrastructure has real problems of sustainability. • Roger Wilkins

System of law • One consequence of that development is that there is nothing that guarantees that the body of law produced by Parliament will represent a coherent system of rules underpinned by general and fundamental principles and doctrines of law. There is nothing that guarantees that what we arrive a represents a system of law as opposed to a collection of rules arrived at by a process of individual and disconnected decisions

Who protects coherence? • Drafters • Policy advisers • Community expectations • Common law

Common law • Will atrophy • E.g law of contract • Not designed to discern intention of legislature, but to put legislature on notice • E.g presumptions about rights • ‘The idea that the legislature has an intention or is something that is capable of having a unitary intention is problematic.’

Legislature or executive? • Whose intention? • Debate re cabinet system • Rise of delegated legislation • Complexity of society • Challenge to idea of parliamentary authority • Cf positivism • Movement away from single consistent set of rules and laws? • E.g problems with conflicting delegated legislation

Globalisation and drafting • ...regulation, just as much as taxation and the costs of transport, water and electricity has real costs for business. Regulation is a significant input cost for the economy... • Response? ‘privatisation of regulation’ • e.g climate change • ‘Policies and Measures School’ • ‘Market or Economic Instrument School’

Changing character of law • Legislation for detail or legislation to set up infrastructure for market? • But – TPA/CCA? • Legislation to cover all relationships or move to local relationships? • But – TPA/CCA?

Current mode: unsustainable • The attempt to draft laws, rules and regulations, guidelines, protocols, orders etc, the ever more detailed attempt to deal with every contingency imaginable, is simply unsustainable....even if it could be done it is a sort of reductio ad absurdum of the idea of the rule of law. Because it would then be so complicated that no one would be able to understand it.

‘Maintenance’ of legislation • Laws aren’t just made, they need to be maintained and adjusted • ‘Privatisation’ shifts costs – doesn’t remove them • Role of courts

Legislative Drafting