Commonwealth Legislative Drafting Manual

In 1976, recognising that there was a shortage of trained legislative drafters in the Commonwealth, the Commonwealth Secretariat first published a legislative drafting manual aimed at informing those practitioners with little or no previous experience in the skill, and assisting those with some experience who had never considered why drafting needed to be undertaken in a particular way. That aim remains, but more than 40 years later there have been important changes in the way legislation is drafted. These mainly concern the perceived need to make it more accessible to those to be affected by it, in particular by the use of plain language and sentence structures that relate more closely to those used in formal nonlegislative documents. In the light of these and other changes, the Commonwealth Legislative Drafting Manual has been completely rewritten, and it now guides the practitioner step by step through the various things he or she needs to know. It also contains a series of appendices relating to the procedure for the preparation of legislation, the contents of drafting instructions, and some hints to the beginner on the best approaches to the task.

Table of Contents:
Foreword Preface Acknowledgements 1. What is Legislation and why is it Drafted the Way it is? 1.1 What is legislation? 1.2 How is legislation created? 1.3 Why is legislation drafted in the way it is? Note 2. The Role of Legislative Counsel 2.1 Analysis and understanding of what the policy-makers require 2.2 Effective communication of the intentions of the policy-makers 2.3 Specific attributes of effective communication 2.4 Constraints on legislative counsel 3. Background Legislation 3.1 The Constitution 3.2 The Anterpretation Act Note 4. The Basic Elements of a Legislative Sentence 4.1 Legal subject 4.2 Legal action 4.3 Context 4.4 Prominence for the legal subject 4.5 Prominence for the legal action 5. Modern Commonwealth Conventions in Legislative Drafting 5.1 The need for consistency and conciseness 5.2 Who is affected by the rule? 5.3 What is required or permitted? Note 6. Plain Language Drafting 6.1 Introduction 6.2 Reasons why legislation may fail to communicate clearly 6.3 General objective of plain English in drafting legislation 6.4 The most common specific problems that need to be addressed 6.5 The aims of plain English in legislation Notes 7. Structuring Legislative Drafts 7.1 Sentences 7.2 Paragraphs 7.3 Grouping provisions in an Act 7.4 Linking devices 8. Punctuation (and Capitalisation) 8.1 Full stop 8.2 Colon 8.3 Dash 8.4 Semi-colon 8.5 Quotation marks (or inverted commas) 8.6 Brackets 8.7 Hyphen 8.8 Apostrophe 8.9 Comma 8.10 Capital letters Note 9. Definitions and Interpretation Provisions 9.1 Introduction 9.2 Definitions and other interpretation provisions generally 9.3 Different kinds of interpretation provisions and definitions 9.4 Writing definitions 9.5 Where particular care is needed in definitions 9.6 Where do interpretation provisions go? 10. Words to use With Special Care (and Other Drafting Problems) 10.1 Introduction 10.2 'And' and 'Or' 10.3 'Which' and 'that' 10.4 'All', 'any', 'each' and 'every' 10.5 'Such' 10.6 Singular and plural 10.7 Elliptical writing (omission of words which are to be implied) 10.8 Indeterminate terms 10.9 Gender-Neutral Drafting 10.10 Expressing time 10.11 Expressing numbers 11. The Legislative Scheme: Principles governing the type of legislation required and the ordering of its provisions 11.1 Fundamental questions to be answered 11.2 A logical structure to legislation 11.3 The logical sequence of sections within a Part 12. Preliminary Provisions 12.1 Introductory Provisions 12.2 Preliminary provisions 13. Final Provisions 13.1 Repeals 13.2 Transitional and savings provisions 13.3 Schedules 14. Penal Provisions 14.1 General formulae 14.2 Different types of penalties 14.3 Parties to offences 14.4 Strict liability in criminal law 14.5 Shifting the burden of proof 14.6 General matters concerning offences and penalties 14.7 Other matters consequent on conviction 14.8 Administrative penalties 15. Delegated Powers to Make Legislation 15.1 Why are powers to legislate delegated? 15.2 What form does subsidiary legislation take? 15.3 Questions about delegation which need to be considered by legislative counsel 15.4 How does the legislature supervise the making of subsidiary legislation? 15.5 Drafting subsidiary legislation 15.6 Typical layouts of subsidiary legislation, and executive instruments that are in some jurisdictions treated as subsidiary legislation Note 16. Amending Legislation 16.1 How may statutes be amended? 16.2 Direct (or textual) and indirect methods of amending 16.3 Substantive and consequential amendments 16.4 Amendment, or repeal and replacement? 16.5 Retrospectivity of amendments 16.6 Drafting textual amendments 16.7 Renumbering 16.8 Punctuation 16.9 Indentation and spacing 16.10 Style 17. Specific Types of Application 17.1 Retrospective and retroactive provisions 17.2 Extra-territorial legislation 17.3 Binding the government 18. Statutory Corporations 18.1 Functions of statutory corporations 18.2 Terminology traditionally used 18.3 Corporate or non-corporate? 18.4 Features of a body corporate 18.5 Establishment of a body corporate 18.6 Drafting provisions to establish a statutory corporation 19. Licensing Legislation 19.1 Introduction 19.2 The purposes of licensing and registration 19.3 The contents of licensing legislation 19.4 Typical transitional and savings provisions relating to licences 20. Financial Legislation 20.1 Introduction 20.2 Government accounting 20.3 Government expenditure 20.4 Government borrowing, guarantees and lending 20.5 Taxation Appendix A: Legislative Procedure and Preparation Appendix B: Guidelines for the Preparation of Cabinet Submissions Appendix C: Drafting Instructions Appendix D: Suggested Approaches to Translation of Policy Appendix E: Suggested Approaches to Drafting