User:Zariski/Temp/MODULE 5B.S1.doc

COMMONWEALTH DISTANCE TRAINING COURSE

IN

LEGISLATIVE DRAFTING

..... and Tailing

Module 5B

....... AND TAILING

PREVIEW OF MODULE 5B 

In Module 5A, you were concerned with the provisions that usually appear at the beginning of a statute. In Module 5B, we shall be working on those that conventionally are placed towards the end. The provisions considered here differ from the preliminary provisions in that typically they deal with matters affecting substantive law. But they are used too for what may be seen as technical reasons, for example, in order to integrate new legislation with the body of existing law.

Objectives of Module 5B

By the end of Module 5B, you should be able, when drafting a Bill:

-to provide suitable final provisions, and in particular, to draft:

- delegated powers to legislate;

- amending, repeal, saving and transitional provisions, and Sched­ules; and

-saving and transitional provisions that have retrospective effect;

-to take account of the law on implied repeal and on the legal effects of repeals in drafting amending repeal, saving and transitional provisions.

Studying this Part

This topic is divided into five Sections:

Section 1: Drafting final provisions

Section 2: Drafting delegated powers to legislate

Section 3: Drafting amending and repeal provisions

Section 4: Drafting saving and transitional provisions

Section 5: Drafting Schedules

Section 1 is very short and contains an overview of the provisions that are examined in the Sections that follow. For that reason no Preview or Review pages are needed.

Rather more than in Module 5A, you will find much in Module 5B that you have not come across in earlier parts of the Course. Again, you are asked to complete a large number of Activity and Exercise Boxes. You will need several study sessions to complete all the Sections. It will usually be possible to make a break at the end of any of the Sections or sub-Sections.

COMMONWEALTH DISTANCE TRAINING COURSE

IN

LEGISLATIVE DRAFTING

SECTION 1

What do we include in final provisions?

What do we include in final provisions?

PREVIEW

In this Section, we have an overview of provi­sions that are commonly placed towards the end of Bills. We encourage you to identify the provisions that are positioned there in your jurisdiction and to establish the typical order in which they appear.

Section Objectives

In this Section, then, the objective is to enable you:

-to become familiar with necessary final provisions and the order in which they should be placed in bills.

Essential Questions

The following questions are considered:

FINAL PROVISIONS

• What matters may be contained in final provisions?

• Are final provisions optional?

• In what order are final provisions dealt with?

• Should they be dealt with in separate clauses?


 * What section notes are appropriate?

Studying this Section

Your aim in this Section is to make yourself familiar with the final provisions in your legislation in preparation for developing the approaches that are appropriate to enable you to decide:how they should best be drafted. This is a short introductory section that you should be able to complete quickly.

Final provisions

What matters may be contained in final provisions?

The following matters are typically included in final provisions:

1. delegated powers to legislate by subsidiary instru­ment;

2. repeal pro­vi­si­ons;

3. amending provisions;

4. saving provisions;

5. transitional provisions;

6. Schedules.

They are usually included in the final provisions because they deal with matters that supplement the legislative scheme that is provided for in the preceding parts of the instrument. However, delegated powers and amending provisions tend to be included only when they are short and consequential. When they are more substantial, they take a more prominent position in the text, notably in Bills the sole or major purpose of which is to amend existing legislation. In such cases, they give rise to distinc­tive drafting practices, as well shall see in Sections 2 & 3.

You will recall, from your work on Preliminary Provisions (Section 1 of Module 5A), that in some jurisdictions, certain of those provisions are placed with the final, rather than the preliminary, provisions. When we refer in this Module to final provisions, we do not include those cases.

Activity Box 1

Confirm for your jurisdiction:

1.which, if any, of the provisions listed there are treated as final provisions;

2. the place in which those provisions are usually set out in the final provisions.

If necessary, turn Back to Activity Box 1 in Module 5A, Section 1 (Preliminary provisions).

Drafting conventions about the use and style of final provisions can differ between primary and secondary legislation. In any case, these provisions are rather more common in Bills than in subsidiary instruments. This Module is mainly concerned with how final provisions are prepared for Bills.

Follow the conventional practices in your jurisdiction about what is preliminary and what is final when working out the structure of your Bill or subsidiary instrument.

Activity Box 2

As you work through this Module check how your legislation typically sets out and expresses these final provisions by quickly looking through examples of recent Acts and subsidiary instruments.

Are final provisions optional?

Some of the preliminary provisions (e.g. short title) are essential features of all legislation. None of the final provisions is of that kind. They are all concerned with matters of substance, rather than form. Whether you need to provide them depends upon whether or not the particular legisla­tion requires that kind of provision.

So, for example, saving and transitional provisions may not be required in the circumstances covered by the substantive provisions. Schedules tend to be used where it will be more convenient for users if legislat­ive text is trans­ferred from the body of the instru­ment to a separate part at the end.

In what order are final provisions dealt with?

Unless they are substantial, the order in which the final provisions typically appear is:

1. delegated legislative powers

2. amendment provisions

3. repeal provisions

4. saving provisions

5. transitional provisions

6. Schedules.

In countries where the short title and commencement section are final provisions, they are typical­ly placed after transi­tional provisions, but before any Schedule.

There is a logic in this order, derived from the following prin­ciples about how legislation should be structured:

- permanent precedes temporary;

- continuing precedes one-off;

- substantive precedes formal;

- functional precedes consequential.

The principles of legislative structuring are dealt with in detail in Module 4, Section 1.

delegated legislative powers 

are commonly concerned with providing substantive rules of a continu­ing nature. So, they should immediately follow other substan­tive provisions.

amending provisions

also typically contain provisions that deal with matters of substance, although they are spent once in force as they merge with the legislation they amend.

repeal provisions 

have substantive effect, but it is a one-time function. These provisions generally cease to have operational importance once that function is performed.

saving provisions 

are usually consequential upon a repeal (or sometimes an amendment), and so follow those provisions. As they usually preserve some existing provisions for the future, they deal with continuing legal rules.

transitional provisions 

are also consequential upon repeal or amendment; but they put in place temporary rules which, therefore, have only a limited life.

Schedules 

take the form of an addendum to the legislation, and therefore come at the end.

Should they be dealt with in separate clauses?

As a general practice, where the matter to be dealt with by each is not substantial:

-place each category of final provisions (other than Schedules) in distinct clauses in the legislation;

-provide each with a section note, using the appropri­ate words to describe the function of the clause.

But:

-if the delegated powers are numerous and are to be exercised by different persons or bodies, consider providing separate clause for each, placed with the substantive provisions that it supplements;

-if the amendments, repeals, savings or transitional matters are exten­sive, consider whether to use several clauses, or even a Schedule, to cover the material;

-if the provisions are few and short and of minor importance, consider whether to combine them with other final provi­sions into a single clause. So, for example, add a single saving or transitional provision to the repeal provision on which it depends, as a subsection.

What section notes are appropriate?

A widespread practice is to provide sections containing a distinct kind of final provision with section notes that merely describe their technical function, rather than their substantive effect. So for example:

Regulations is used for a sole section containing a delegated power to make supplementary legislation

 Amendment [of section 4 of the principal Act]  is used rather than a note that states the substance of the amendment

 Repeal [of Act No.24 of 2000]  states the legal effect of the section.

Saving similarly explains the technical function of the provisions in the section

Transitional is similarly explanatory of the technical purpose of the section.

On the other hand, the note to a section that provides with respect to matter contained in a Schedule typically describes the substantive contents of the Schedule.

Activity Box 3

'''Mark with a tick, in the box provided, whether the express­ion given is used in your jurisdiction as the section note to a clause dealing with the matter. If an alternative is in regular use, write that in the space provided.'''

''' *These may be in the plural where the clause contains several such provisions. '''

What do we include in final provisions?

REVIEW

From this Section you should have a clear view of provi­sions that are commonly placed towards the end of Bills in your jurisdiction and the typical order in which they appear. If so, then you will have achieved the objective of the Section. This was to enable you:

-to become familiar with necessary final provisions and the order in which they should be placed in bills.

Check this by reviewing the following questions that you have considered:

Topics covered Page Reference

FINAL PROVISIONS

• What matters may be contained in final provisions?1

• Are final provisions optional?2

• In what order are final provisions dealt with?2

• Should they be dealt with in separate clauses?3

What section notes are appropriate?3

On completing this Section you will be ready to look in detail at the function and drafting of final provisions and current practice in respect of your legislation.