User:Zariski/Temp/551.6.doc

''Note: the WordPerfect file for this Section was corrupt so some of the later sections have been copied and pasted from the PDF file without formatting. They have been edited.''

Section 2 - What is legislation?

PREVIEW

This Section looks at the basic characteristics and types of legislation, the terms that are used to describe different kinds of legislative instruments and the typical components of individual instruments, and the structure of primary legislation (ie, Bills).

Section Objectives 

By the end of this Section, you should be able to describe:

-the various types of legislative instrument in use in your jurisdiction;

-the features of primary legislation that are conventional in your jurisdiction;

-the conventions relating to the structure of Bills and their standard components.

In particular, you should be able to use the appropriate technical terms to describe the character­istic features of Acts and Bills.

The Essential Questions

We deal with the following topics in this section:

1. Types of legislative instruments

2. Classification of statutes

3. Naming the Parts

4. The conventional structure of a Bill.

The following are the questions which you will need to answer:

1. TYPES OF LEGISLATIVE INSTRUMENTS

• What is legislation?

• Which bodies have power to make primary legislation?

• What forms does primary legislation take?

• Which bodies have power to make subsidiary legislation?

• What forms does subsidiary legislation take?

2. CLASSIFICATION OF STATUTES

• What kinds of statutes are in common use?

3. NAMING THE PARTS

• What are the terms and functions of the characteristic features of a Bill?

4. THE CONVENTIONAL STRUCTURE OF A BILL

• What is the conventional arrangement of the contents of a Bill?


 * How do legislative instruments differ?

(Particular features peculiar to subsidiary legislation, and differences in the terminology used in respect of subsidiary legislation, are considered in Module 6, Section 2).

Studying this Section

A good deal of this Section deals with matters that you have come across in your earlier legal studies and practice of law. Remember, however, that here as elsewhere in the Course, we are asking you to look at these matters from the standpoint of Legislative Counsel. You need to confirm your present knowledge of the topics discussed and in particular the extent to which the practice in your jurisdiction mirrors or differs from that described in this Section. A number of Activity Boxes are designed to allow you to look at local practice.

Pay particular to Activity Boxes 6 & 7 which are concerned with the terminology used to describe particular features of a statute. In our experience, many lawyers are not conversant with all these features. Take time to study the specimen Act which we have provided for this purpose, in order to ascertain the particular parts which are identified in the Course text. You will be asked to use this Act again in a later Module.

The Section is quite short and relatively straight-forward. You should be able to complete it quite quickly. But do give extra time to aspects that are new to you.

1. Types of legislative instruments

What is legislation?

We shall use the term "legislation" generally to refer to written rules of law made by a body that:

-has the necessary legislative power conferred upon it by or under the Constitution; and

-has followed a legally prescribed or recognised process of law-making.

The factor that distinguishes legislation from other kinds of rules or decisions is the source of the authority to make them. Only those bodies that have the legislative power conferred upon them can make legislative instruments.

Which bodies have power to make primary legislation?

Constitutions invariably state which body or bodies have the power to make the highest level of legislation ("primary legislation").

-in a unitary state, this is typically vested in the national legislature (e.g. Parliament, National Assembly).

-in a federal system, the power is shared between the national (federal) and the state (provincial) legislatures, according to a division of authority set out in the Constitution.

-in a dependent territory, a legislative power to make primary legislation on local matters rests with the local legislature (e.g. Legislative Council), but it may also be exercised, or overridden, by the legislative authorities in the metropolitan country.

-in a military regime, the legislative power as provided for in the Constitution has usually been usurped by a Military Council and is exercised by the authority of its own decree.

There are other cases, such as the United Kingdom, where the legislative power of Parliament rests upon a basic principle of Parliamentary sovereignty in the absence of a written Constitution.

Activity Box 1 

In the spaces provided, note down for your country -

(1)the body (or bodies) in which the power to make primary legislation is vested at present:

(2)references to the provisions of your Constitution (or other law) which confer that power and regulate its exercise.

What forms does primary legislation take?

The power to make primary legislation is exercised by making legislative instruments in accordance with required procedures - a process which can be referred to as "enactment". That term may also be used to refer to the instrument itself, or even to a legal proposition contained in a single sentence in the instrument. Those instruments may be referred to collectively as "statutes", as well as "primary legislation".

The Constitution typically prescribes the basic features of the enactment process, referring to an individual instrument before enactment as a "Bill", and after it as an "Act".

-in federal systems, a different term may be used to refer to State instruments after enactment, to distinguish them from federal enactments (e.g. "Law").

-in dependent territories, a different term may be used to refer to local instruments after enactment, to distinguish them from metropolitan enactments (e.g. "Ordinance").

-in military regimes, a different term may be used to refer to instruments made by the Military Council after enactment (e.g. "Decree" or "Edict").

Activity Box 2

In the space provided, note down for your country, with the reference to the relevant provision of your Constitution, or other applicable law, the term or terms used to describe individual instruments made by the body (or bodies) in which the power to make primary legislation is vested:

(a) before enactment:

(b) after enactment:

In this Course, we use "Bill" and "Act", as well as "primary legislation" to cover all these forms.

Which bodies have power to make subsidiary legislation?

The legislatures of Commonwealth Parliaments typically have full powers to make laws on all matters, subject to the limitations stated in the Constitution (e.g. in federal jurisdict­ions, where certain exclusive powers may be reserved to the federal or state legislatures). This is generally expressed as:

the power to make laws for the peace, order and good government of [the particular jurisdiction].

This power permits the delegation of a limited legislative competence to other bodies, even when, as is usually the case, the Constitution is silent on the matter. Those bodies may exercise that power, within the limits permitted, by issuing their own legislative instruments, commonly referred to as "subsidiary legislation" or "secondary legislation". A term often used to describe an individual piece is "instrument". Other terms describing this form of legislation in general use include:

"delegated legislation";

"legislative instruments";

"subordinate legislation";

"statutory instruments";

"subsidiary instruments".

In this Course, these are referred to collectively as "subsidiary legislation" and individually as "legislative instrument".

Delegation of the legislative power is typically to a wide range of bodies, e.g. the Head of State, Ministers of the Government, statutory authorities, local government councils. In the usual case, the delegation is to enable subsidiary legislation to be made to supplement a body of rules on a specific matter that are already set out in primary legislation. But more general powers may be granted to bodies performing a governmental role over a limited area or activity (e.g. local government councils). But in both instances, the delegation and the limits upon it are found in primary legislation, which takes precedence.

Activity Box 3

In the space provided, note down for your country references to any provisions of your Constitution that authorise or regulate the delegation of the legislative power to other bodies.

'''What forms does subsidiary legislation take? '''

Individual instruments are typically said to be "made" rather than "enacted". There is no special term in common use for the instrument before it is made. It is generally referred to as a "draft" instrument. The formal terms that you should use in your drafts to describe instruments, either collectively or individually, are indicated by the terminology adopted in your local Interpretation (or General Clauses) Act.

Example Box 1

The following is an example taken from the model Interpretation Act 1992, section 25(1):

"subsidiary legislation” means proclamation, regulations, rules, rules of court, bye-laws, order, notice or other instrument made under a written law and having legislative effect.

The term "written law" is defined in the same section:

"written law" means the provisions of the Constitution, an Act or subsidiary legislation for the time being in force.

Types of subsidiary legislation

Particular terms describe instruments when used for the following purposes, although practice is not consistent either between or within different jurisdictions.

- proclamation

the formal public announcement of legislation that is likely to be important or have significant consequences.

- regulations

subsidiary legislation of general application, especially that containing provisions of substantive law.

- rules

an instrument that prescribes procedural requirements rather than provisions of substantive law.

- rules of court

an instrument that prescribes procedural rules relating to court proceedings.

- bye-laws

subsidiary legislation made by statutory bodies to have local or specific applic­ation.

- notice

a formal announcement of subsidiary legislation unlikely to have major signific­ance for the general public.

- order

an instrument that applies provisions contained in the parent Act to specific persons, or classes of persons, or to specific cases or places.

We consider which is the most appropriate term for particular cases elsewhere.

Activity Box 4

In the spaces provided, note down (with references to your Interpretation Act) the terminology used in legislation in your jurisdiction for the following:

1. subsidiary legislation collectively:

2. a general reference to individual pieces of subsidiary legislation (e.g. "instrument"):

3. the different types of subsidiary legislation (e.g. "regulations", "rules", etc):

2. Classification of statutes

The range of matters that primary legislation may deal with is limitless. However, there are certain kinds of statutes that are enacted in most jurisdictions for similar purposes and are referred to by similar terms. We use these terms in this Course.

What kinds of statutes are in common use ?

The following kinds of Bills are frequently prepared for the following purposes:

- an amending Bill

a Bill with the principal purpose of making alterations to existing primary legislation.

- the Appropriation Bill/Supply Bill

an annual Bill to state the amounts of public expenditure authorised for the following financial year, as determined by the heads of expenditure in the estimates approved by the legislature. A Supplementary Appropriation Bill may be called for if additional expenditure must be authorised in a given year.

- a codifying Bill

a Bill to provide a comprehensive and coherent set of written rules for a major area of law.

- a consolidation Bill

a Bill to gather together into one statute existing written rules on a given matter, especially those rules that are scattered between an Act and several other Acts that amended it.

- a declaratory Bill

a Bill with the principal purpose of stating what the law is, and has always been, on a particular topic, and so removing doubt or uncertainty.

- an enabling Bill

a Bill with the principal purpose of conferring powers to do something which otherwise cannot be lawfully done or would otherwise be unlawful..

- the Finance Bill

a Bill, usually annual, with the principal purpose of providing for the raising of revenue to meet public expenditure and, therefore, to change existing taxing laws.

- a money bill

a Bill containing only provisions dealing with specified financial matters that under the Constitution may not be amended by a Second Chamber of the Parliament.

- a Government Bill

a Bill introduced into Parliament by or on behalf of Government to give effect to Government policy on the subject of the Bill.

- a Private Member's Bill

a Bill introduced into Parliament by a member who is not a member of the Government on a matter of general importance though often of special interest to the member or to some group with which the member is concerned. - a public Bill

a Bill that is of importance to the community, though not necessarily applying to the entire jurisdiction; it may be introduced as a Government Bill or as a Private Member’s Bill.

- a private Bill

a Bill (sometimes requiring to be enacted by a special Parliamentary procedures) to make special rules for a particular locality or particular persons, or group of persons, at their request.

- an indemnity Bill

a Bill to remove legal liability, usually from some specified person or persons, for a breach of law.

- a validation Bill

a Bill the sole purpose of which is to declare valid some action, omission or procedure that, as the law stood at the time, was invalid or legally defective and, therefore, to rectify the legal consequences.

Activity Box 5

(See PDF file for formatting this section)

Find out whether any of the Bills just described are common in your

jurisdiction by looking in your statute book or asking an experienced

colleague. Note down in the last column any different term that is used.

Statute Yes No Different term

1. amending Bill

2. Appropriation/Supply Bill

3. codifying Bill

4. consolidation Bill

5. declaratory Bill

6. enabling Bill

7. Finance Bill

8. money Bill

9. Government Bill

10. Private Member’s Bill

11. public Bill

12. private Bill

13. indemnity Bill

14. validation Bill

a Bill that is of importance to the community, though not necessarily applying to the entire

jurisdiction; it may be introduced as a Government Bill or as a Private Member’s Bill.

- a private Bill

a Bill (sometimes requiring to be enacted by a special Parliamentary procedures) to make

special rules for a particular locality or particular persons, or group of persons, at their

request.

- an indemnity Bill

a Bill to remove legal liability, usually from some specified person or persons, for a breach

of law.

- a validation Bill

a Bill the sole purpose of which is to declare valid some action, omission or procedure that,

as the law stood at the time, was invalid or legally defective and, therefore, to rectify the

legal consequences.

3. Naming the parts

What are the terms and functions of the characteristic features of a Bill?

This part is to help you to remind yourself of the terms used to describe the main features of

a Bill, and the functions they generally perform. We use a model Act to enable you compare

typical features with those in recent statutes in your jurisdiction.

Activity Box 6

(See PDF file for formatting this section)

1. Glance through the Second-Hand Dealers Act 1992, which is Document 10 in your

Materials. (This closely follows an Act of that name from a Commonwealth

country). Make yourself familiar with its overall structure and the gist of its

contents.

2. Various features of the Act are given numbers and are described in the text that

follows. Once you have an idea of the contents of the Act, look at the numbered

features in more detail with the description.

Some features are common both to Bills and Acts; some are exclusive to Bills.

A. Features that appear both in Bills and in Acts

1: Citation (year and number)

Typically, the year is the year in which the enacting process is completed; the number

represents the order in which the Bill is given Assent. The number is entered when the

Act is published after enactment.

2: Arrangement of Sections

The table of contents, often provided only for longer Bills. It is made up from the

section numbers and section notes. It is sometimes referred to by a different name (e.g.

"Analysis").

3: Coat of Arms

The national insignia, commonly printed to signify the formal authority of the statute.

But it has no legal significance and is automatically added by the Government Printer.

4: Long title

The formal statement of the scope of the Bill and the main ways in which the Act is

intended to have future effect.

5: Commencement date

The entry is left blank in a Bill. The date is entered on publication of the Act if it is

known to commence on a specific date. Otherwise, it remains blank and will only be

printed if the Act is re-published after commencement.

6: Enacting words

A standard formula that indicates that the Act has completed the formal process of

enactment. The styles of these formulae vary widely.

7: Short title

The label or name that the Act will carry; it facilitates its citation.

8: Commencement provisions

Typically, only required if the Act is to come into force on a day other than the date it

receives Assent.

9: Section note

An editorial aid to the contents of the section to which it attached. It is also known as

a "shoulder note". If printed in the margin, it is known as a "marginal note" or "side

note".

10: Section

The principal component of a Bill. It comprises a numbered sentence, or sequence of

sentences (each constituting a subsection), dealing with a distinct legal proposition in

the legislative scheme of the Bill. Related sections may be grouped into distinct Parts

or, within Parts, into Divisions, each with a descriptive heading.

11: Interpretation section

A section containing meanings given to terms used in the Bill or explaining how

expressions in it are to be interpreted.

12: Defined term

A term or expression used in the Bill to which a particular meaning (definition) is

attached, usually in the Interpretation section.

13: Definition

The meaning given to a defined term. It is also used to refer to both defined term and

definition.

14: Subsection

A division of a section (numbered by a number in brackets) that deals with an element

of the legal proposition dealt with by the section.

15: Inducing words

Words used to indicate that related matter is contained in a specified Schedule to the

Bill.

16: Paragraph

One of a series of components of a legislative sentence (in a section, subsection or

Schedule), each given a bracketed letter in sequence. A similar feature within a

paragraph is termed a sub-paragraph, but is typically numbered with bracketed roman

numerals. In some jurisdictions, the terms “clause” and “subclause” are used.

17: Schedule

A collection of rules or items, set out as an annex to the Bill, which are extensions of

the rules in the section which contains the inducing words. If there are several,

Schedules are set out, in a numbered sequence, in the order of their inducing sections.

Activity Box 7

For this Activity, have available:

1. The model Second-Hand Dealers Act 1992 ;

2. Two or three recent Acts from your jurisdiction, each of no more than a few pages.

In the following table, tick column 1 if the feature is in regular use in your jurisdiction.

In column 2, note down any differences in terminology or use of the feature.

Feature Yes Differences

1. Citation (year and number)

2. Arrangement of sections

3. Coat of Arms

4. Long title

5. Commencement date

6. Enacting words

7. Short title

8. Commencement

provisions

9. Section note

10. Section

11. Interpretation section

12. Defined term

13. Definition

14. Subsection

15. Inducing words

16. Paragraph

17. Schedule

For this Activity, have available a copy of a recent Bill from your jurisdiction

of no more than a few pages.

In the following table, tick column 1 if the feature is in regular use in your

jurisdiction. In column 2, note down any differences in terminology or use of

the feature.

Feature Yes Differences

Modified long title

Line numbering

Explanatory memorandum

B. Features that appear only in Bills

In many jurisdictions, additional features may be found in Bills.

Modified long title

Typically, the long title is preceded by the words - "A Bill for".

Line numbering

Each page of the Bill carries, in the outside margin, line numbering for that page, usually

at intervals of 5. These are inserted by the Government Printer and facilitate debate.

Explanatory memorandum

This is a statement attached to the front of a Bill, explaining the general purpose of the

Bill and the legal effects of the individual Parts and sections. In some jurisdictions, it

finishes with a note on the financial implications of the legislation. This is also known

as a statement of Objects and Reasons.

Activity Box 8

4. The conventional structure of a bill

From your reading of the Second-Hand Dealers Act and your local legislation, you are aware

that drafters tend to follow a conventional order when arranging the sections in their Bills. Of

course, the actual sequence of the sections in an individual Bill is dictated by the treatment of

the particular subject matter.

Most jurisdictions have their own house-style for the conventional arrangement of Bills. But

house-styles throughout the Commonwealth have much in common.

What is the conventional arrangement of the contents of a Bill?

The Chart on the next page outlines a model widely used. It indicates the order in which the

various types of legislative matter are typically set out, when they all occur in the same Bill,

and the main functions that they perform in the statute. (These matters are given headings in

the Chart for purposes of explanation. They would not necessarily be contained in formal Parts

with those headings). This order reflects the relative importance of the matter in particular

sections. The principles that are in play here are discussed in detail in another Module which is

concerned with the structure of legislation.

The Chart is followed by a brief explanation of the statutory features. Those items indicated

by * are features that may not be found frequently, although some of them are valuable when

the proper circumstances for their use arise. We look at that matter in depth mainly in another Module which deals with preliminary and final provisions.

Non-statutory material Explanatory memo

Arrangement of sections

Introductory apparatus Long title

Preamble

Commencement date

Enacting words

Preliminary provisions Short title

Commencement

Interpretation

Objects

Application

Duration

Road map

Principal provisions Substantive matter

Administration

General/Miscellaneous Penal

Evidence & process

Delegated legislation

Final provisions Amendments

Repeals

Savings & transitionals

Schedules

A. NON-STATUTORY MATERIALS

1. Explanatory Memorandum A statement of the general aims of the Bill and its

(Objects and reasons) individual sections, usually for the information of

Parliament. Typically, not printed with the Act.

2. Arrangement of Sections A table of contents for all users of the Act, made up

from the section notes and any headings to Parts.

B. INTRODUCTORY APPARATUS

1. Long title A statement of the scope of the Bill and the main ways

in which it is intended to have effect. (This feature has

been dispensed with in some jurisdictions.)

2. Preamble * A recital of the circumstances and reasons leading up to

the enactment.

3. Commencement date The date when the Act comes into operation.

4. Enacting words The formula that shows that the Bill has completed the

enactment process.

C. PRELIMINARY PROVISIONS

1. Short title (Citation) The name or label by which the Act will be known and

cited.

2. Commencement Particular provisions stating when the Act will come

into operation if not on the date of its Assent or other

date required by general legislation.

3. Interpretation Provisions stating how terms and expressions in the

clause Act are to be construed.

4. Objects clause * A statement of the policy objectives of the Act.

5. Application provisions * An extension or restriction of the standard rules

governing the application of the Act (e.g. to apply to

part of the jurisdiction only or to have extra-territorial

effect).

6. Duration provisions * Imposing some limitation upon the life of the Act.

7. Road map clause * Directions to users on how to find their way around the

Act.

D. PRINCIPAL PROVISIONS

1. Substantive provisions The main body of rules relating to the subject matter of

the Bill

2. Administrative provisions Operational rules in support of the substantive

provisions.

E. GENERAL/MISCELLANEOUS

1. Penal provisions Offences and penalties in support of the principal

provisions.

2. Evidence & process Rules relating to proceedings arising out of the principal

provisions.

3. Delegation of legislative Powers to make secondary legislation to supplement

powers the principal provisions.

F. FINAL PROVISIONS

1. Amendments and repeals Alterations to existing law consequent upon the

principal provisions.

2. Savings & transitional Temporary provisions made necessary by the alterations

provisions to existing law made by the Act.

3. Schedules Annexed provisions that supplement the principal

provisions.

This model is not universally followed. In some jurisdictions, the first three preliminary

provisions (short title, commencement and interpretation) are contained in the final provisions.

They are then typically placed at the end of the final provisions, with interpretation before the

other two.

In the space provided note whether the listed items are generally included in the

preliminary or in the final provisions in Bills in your jurisdiction. By giving

appropriate numbers, show the order in which they usually appear.

'''Item Preliminary or Final? Order'''

1. Short title

2. Commencement

3. Interpretation

4. Amendments & repeals

5. Savings and transitionals

6. Schedules

Activity Box 9

How do legislative instruments differ?

Subsidiary legislation shares many features of primary instruments, notably in the substantive parts. However, since the makers and the making process are different, the technical apparatus in these instruments is different. For example, there is no long title, enacting words or explanatory memorandum; section notes are uncommon. Instead, they typically contain a heading, authorising words indicating the maker and the authority for making, provision for the maker’s signature and its date and an explanatory note. These features, which are illustrated by the Subsidiary Legislative Instrument in the Resource Materials, are examined in detail in another Module.

What is legislation?

REVIEW

In this Section, you have confirmed your knowledge of the nature of legislative instruments, in

particular Bills, and the terms used to describe the component parts of a Bill.

At the end of this Section, you should be able to describe:

- the various types of legislative instrument in use in your jurisdiction;

- the features of primary legislation that are conventional in your jurisdiction;

- the conventions relating to the structure of Bills and their standard components.

In particular, you should be able to use the appropriate technical terms to describe the characteristic

features of Acts and Bills.

Read through the questions you have been considering (set out below). Remind yourself of what

was dealt with under each, asking yourself whether you have met the Section objectives.

Topics Covered

1. TYPES OF LEGISLATIVE INSTRUMENTS

What is legislation?

''Which bodies have power to make primary legislation? ''

''What forms does primary legislation take? ''

Which bodies have power to make subsidiary legislation?

''What forms does subsidiary legislation take? ''

2. CLASSIFICATION OF STATUTES

What kinds of statutes are in common use?

3. NAMING THE PARTS

''What are the terms and functions of the characteristic features of a Bill? ''

4. THE CONVENTIONAL STRUCTURE OF A BILL

''What is the conventional arrangement of the contents of a Bill? ''

''How do legislative instruments differ? ''

You should have found little difficulty in familiarising yourself with the matter in this Section. If you

are unsure about any item covered in this Section, re-read the appropriate part and the material

you have added in a connected Activity Box. You will meet again much of what you have studied

here, in later Modules; it should soon become standard.