Overview
This lecture covers the conventions and techniques of legislative drafting, the challenges faced by drafters, and the role of guidelines in shaping effective and fair legislation.
Drafting Styles and Conventions
- Legislators must follow specific guidelines when drafting legislation to ensure consistency and legal validity.
- Policy responsibility means legislation must accurately reflect developed policies.
- Legislative drafting and policy development are closely connected and guided by manuals and official handbooks.
- The Attorney General’s Department must be consulted if proposed legislation may conflict with human rights obligations.
Legislative Drafting Techniques
- One technique uses broad provisions for later interpretation by courts.
- Another aims for clear, comprehensive laws to minimize judicial interpretation and reduce judicial activism.
- Strict formalism aligns with the idea that legislatures, not courts, primarily make law.
Drafting Guidelines and Responsibilities
- Government lawyers, often in Parliamentary Counsel Offices, draft both bills and subordinate legislation.
- Drafting requires adhering to numerous guidelines and is considered challenging for both drafters and interpreters.
- Drafters strive to create clear, single-meaning provisions, but language limits perfect clarity.
- Ambiguity arises due to language limitations, complex subject matter, and the evolving nature of society and technology.
Role of Official Guidelines
- Most jurisdictions have official guidelines to help produce bills likely to pass parliament and gain public acceptance.
- In Queensland, the Office of Parliamentary Counsel drafts legislation and upholds high drafting standards.
- The Legislative Standards Act 1992 (Qld) sets out drafting guidelines, including fundamental democratic principles.
Fundamental Principles in Drafting
- Legislation must respect individual rights and parliamentary institutions.
- Parliament considers if drafts: (1) are consistent with natural justice, (2) delegate authority appropriately, and (3) avoid unjust reversal of the onus of proof in criminal cases.
Key Terms & Definitions
- Policy Responsibility — ensuring laws reflect developed government policies.
- Legislative Drafting — the process of writing laws in accordance with formal conventions.
- Judicial Activism — when courts interpret laws broadly, influencing policy.
- Natural Justice — legal principles ensuring fairness in decision-making.
- Onus of Proof — responsibility to prove allegations in court.
Action Items / Next Steps
- Visit the Queensland Office of Parliamentary Counsel website to explore its roles and responsibilities.
- Review the Legislative Standards Act 1992 (Qld) for drafting guideline details.
- Prepare for the next lecture on parliamentary history and authority in law-making.