Books/Legislative Drafting/MODULE 1A - BACK TO BASICS/Section 2 - What is legislation?

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 their typical components, and the structure of primary legislation (usually known as Acts or statutes) and the instruments used to enact them (bills). Particular features of subsidiary legislation, and differences in the terminology used in respect of subsidiary legislation, are considered in Module 6.

Section Objectives

By the end of this Section, you should be able to describe the following in relation to your jurisdiction:

• the various types of legislative instrument and the terms used to describe them;
• the conventional features and components of primary legislation;
• the conventions relating to the structure of primary legislation and bills.

In particular, you should be able to use the appropriate technical terms to describe the character­istic features of primary legislation and bills.

The Essential Questions

This Section is divided into four subsections organised in terms of a series of questions:

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 PRIMARY LEGISLATION ( ACTS)

• What kinds of Acts are in common use?

3. NAMING THE PARTS OF A BILL OR ACT

• What are the terms for and functions of their characteristic features?

4. CONVENTIONAL STRUCTURE OF A BILL OR ACT

• What is the conventional arrangement of their contents?
• How do subsidiary legislative instruments differ?

Studying this Section

Much of this Section deals with matters that you may have come across in your earlier legal studies and practice of law. Remember, however, that here as elsewhere in the Materials 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.

This Section contains a number of activities designed to allow you to look at local practice. You should pay particular attention to Activities 6 and 7, which are concerned with the terminology used to describe particular features of an Act. Many lawyers are not conversant with all these features. Take time to study the specimen Act provided for this purpose in order to ascertain the particular parts 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 quickly, but you should give extra time to aspects that are new to you.

1. Types of legislation

What is legislation?

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

• has the legislative power to make the rules 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.

There are two basic forms of legislation:

• primary legislation; and
• subsidiary legislation.

Primary legislation is made by a body having constitutional authority to make it. Subsidiary legislation is made by a body whose authority is delegated from a higher, usually primary, legislative body.

Which bodies have power to make primary legislation?

Constitutions invariably state which body or bodies have the power to make primary legislation.

• in a unitary state, this is typically vested in the national legislature (for example Parliament or a 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 (for example a 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 assumed 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 an unwritten constitution incorporating a basic principle of Parliamentary sovereignty.

Activity

Note down for your jurisdiction the body (or bodies) that have power to make primary legislation; the provisions of your Constitution (or other basic law) that confer that power and govern 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 is 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 are very often referred to as "Acts" or “statutes”.

The Constitution typically prescribes the basic features of the enactment process for primary legislation, referring to an individual instrument before enactment as a "Bill", and after it as an "Act". However, other terminology may be used:

1. in federal systems, a different term may be used to refer to State instruments after enactment, to distinguish them from federal enactments (for example "Law").
2. in dependent territories, a different term may be used to refer to local instruments after enactment, to distinguish them from metropolitan enactments (for example "Ordinance").
3. in military regimes, a different term may be used to refer to instruments made by the Military Council after enactment (for example "Decree" or "Edict").

Activity

Note down for your jurisdiction, with the reference to the relevant provision of your Constitution or other applicable law, the term or terms used to describe individual texts made by the body (or bodies) in which the power to make primary legislation is vested: before the text is enacted; after its enactment.

These Materials use "Bill" and "Act", as well as "primary legislation" to cover all these forms.

Which bodies have power to make subsidiary legislation?

Primary legislative bodies typically have power to make laws on all matters, subject to the limitations stated in the Constitution (for example 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 legislation, commonly referred to as subsidiary legislation. Other terms describing this form of legislation in general use include:

• delegated legislation;
• subordinate legislation;
• secondary legislation.

These Materials use the phrase "subsidiary legislation" throughout.

Legislative power is typically delegated to a wide range of bodies, for example 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 provisions 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 (for example local government councils). In both instances, the delegation and the limits upon it are found in primary legislation, which takes precedence.

Activity 3

Note down for your country references to any provisions of the Constitution of your jurisdiction that authorise or regulate the delegation of the legislative power to other bodies.

What forms does subsidiary legislation take?

The following terms generally describe instruments used to make subsidiary legislation 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-law or bylaw: 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 in Module 6, Section 3 (How do we draft subsidiary legislation?).

Example 1

The following is an example taken from the model Interpretation Act, 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.

Individual instruments of subsidiary legislation 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 to describe instruments, either collectively or individually, are generally indicated by the terminology adopted in your local Interpretation (or General Clauses) Act.

Activity 4

Note down (with references to your Interpretation Act) the terminology used in legislation in your jurisdiction for the following:

• subsidiary legislation collectively;
• individual pieces of subsidiary legislation generally (for example "instruments");
• different types of subsidiary legislation (for example "regulations", "rules").

2. Classification of Primary Legislation (Bills and Acts)

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

What kinds of bills (and resulting Acts) are in common use?

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

• amending bill: a bill with the principal purpose of making alterations to existing primary legislation.
• appropriation / supply bill: a bill to authorize public expenditure 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.
• codifying bill: a bill to provide a comprehensive and coherent set of written rules for a major area of law.
• consolidation bill: a bill to gather together into one Act existing written rules on a given matter, especially those rules that are scattered across different Acts.
• 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.
• 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..
• 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.
• money bill: a bill containing provisions dealing with financial matters that under the Constitution may not be amended by a Second Chamber of the Parliament.
• Government bill: a bill introduced into Parliament by or on behalf of Government to give effect to Government policy.
• private member's bill: a bill introduced into Parliament by a member who is not a minister 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.
• 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.
• private bill: a bill (sometimes required 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.
• indemnity bill: a bill to remove legal liability, usually from some specified person or persons, for a breach of law.
• 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 5

3. Structure and Format

Legislation is distinguished from other written texts by a highly regularized structure and format that is intended to make it easier to use. This part describes the characteristic features of primary legislation (bills and Acts), and the functions they generally perform. We use a model Act to enable you compare typical features with those in recent Acts in your jurisdiction.

Subsidiary legislation shares many features of primary legislation, 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 may be no long title, explanatory memoranda or section notes. 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 Document 12 hyperlinkin the Supplementary Materials, are examined in detail in Module 6, Section 3.

What are the characteristic features of primary legislation?

Activity 6

1. Glance through the Second-Hand Dealers Act (Document 10 hyperlinkin the Supplementary Materials), which 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.

Most features are common to both Bills and Acts, but some appear only in one of the other.

A. Features that appear 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.

1. Table of Contents or Provisions

A table of contents or provisions may be provided, particularly for longer Acts. It is generally made up from the section numbers and section notes. It is sometimes referred to by a different name (for example "Analysis").

1. Coat of Arms

The national insignia, commonly printed to signify the formal authority of the Act. But it has no legal significance and is automatically added by the Government Printer.

1. Long title

A formal statement of the scope of the Act. It generally begins with the words “An Act to …”

1. Preamble

A recital of the circumstances and reasons leading up to the enactment.

1. Enacting words

A standard formula that indicates that the Act has completed the formal process of enactment. The styles of these formulae vary widely.

1. Short title

The label or name that may be used to refer to the Act. It facilitates its citation.

1. Commencement provision

There are various ways to provide for the commencement of an Act including specifying a particular date to delegating, usually to the Government, the power to set a commencement date or dates. If no commencement provision is included, the Act generally comes into force on a day it receives assent by the sovereign. In some jurisdictions the date or dates of commencement are included with the official published version of Acts.

1. Application provisions

An extension or restriction of the standard rules governing the application of the Act (for example to apply to part of the jurisdiction only or to have extra-territorial effect).

1. Duration provisions

Imposing some limitation on how long the Act remains in force.

1. Road map clause

Directions to users on how to find their way around the Act.

1. Section note

An editorial aid to the contents of the section to which it is attached. It is also known as a "shoulder note". If printed in the margin, it is known as a "marginal note" or "side note".

1. Section

The principal component of an Act. 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.

1. 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.

1. Paragraph

One of a series of parallel components of a legislative sentence (in a section, subsection or Schedule). Each is given a bracketed letter in sequence and indented from the margin. A similar feature within a paragraph is termed a sub-paragraph, but is typically numbered with bracketed roman numerals and is further indented. In some jurisdictions, the terms “clause” and “subclause” are used instead.

1. Interpretation provisions

Provisions that give meaning to terms used in the Act or explain how expressions in it are to be interpreted. These provisions typically contain defined terms or expressions used in the Act to which a particular meaning (definition) is attached.

1. Schedule or Annex

Legislative content relating to particular sections of an Act and linked to them by the terms of those provisions (inducing words). If there are several schedules or annexes, they are set out, in a numbered sequence, in the order of their inducing sections.

Activity 7

For this Activity, have available:

1. The model Second-Hand Dealers Act (Document 10 in the Supplementary Materialshyperlink);
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
2. Table of Contents or Provisions
3. Coat of Arms
4. Long title
5. Enacting words
6. Short title
7. Commencement provisions
8. Section note
9. Section
10. Subsection
11. Paragraph
12. Interpretation provision
13. Schedule

B. Features that appear in Bills

Most of the preceding features appear in bills (the citation is an exception in so far as it relates only to Acts). In many jurisdictions, additional features may be found only in Bills.

1. Bill Number

This number is assigned when a bill is introduced. It reflects the order in which the bill is introduced in a particular legislative session. In bi-cameral legislatures, the numbering of bills in each house is usually distinguished by the addition of a letter before the number, for example “S-1” for Senate bills and “C-1” for Commons bills.

1. Modified long title

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

1. Line numbering

Each page of the Bill has line numbering in the margin, usually at intervals of 5 lines. These are inserted by the Government Printer and facilitate debate.

1. 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 8

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. Note any differences in terminology or use of the feature.

Feature	Yes	Differences
# Bill Number
# Modified long title
# Line numbering
# Explanatory Memorandum

4. Conventional structure of a Bill or Act

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 conventions for the arrangement of Bills. But these conventions have much in common from one jurisdiction to another.

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

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 resulting Act. (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 Module 2, (Getting Organised), which is concerned with the structure of legislation.

The Chart also indicates with an asterisk (*) certain 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 Modules 5A and 5B, which deal with preliminary and final provisions.

Chart for Arrangement of Bills and Acts

# Non-statutory material		Explanatory memo
		Table of Contents / Provisions
# Introductory apparatus		Long title
		Preamble*
		Enacting words
# Preliminary provisions		Short title (however some jurisdictions put this at the end)
		Commencement (however many jurisdictions put this at the end)
		Interpretation
		Objects*
		Application*
		Duration*
		Road map*
# Principal provisions		Substantive matter
		Administration
# General/Miscellaneous		Penal
		Evidence & process
		Subsidiary legislation
# Final provisions		Consequential Amendments
		Repeals
		Savings & transitionals
		Coordinating Amendments (to take account of other bills amending the same provisions)*
		Commencement (however many jurisdictions put this at the beginning)
		Schedules / Annexes

A. NON-STATUTORY MATERIALS

This material is not strictly necessary for the operation of an Act, but it is often added to facilitate using the Act.

B. INTRODUCTORY APPARATUS

These features provide important details about the enactment of the Act.

C. PRELIMINARY PROVISIONS

These provisions circumscribe the operation of the Act.

D. PRINCIPAL PROVISIONS

1. Substantive provisions

The main body of rules relating to the subject matter of the Bill

1. Administrative provisions

Operational rules in support of the substantive provisions.

E. GENERAL/MISCELLANEOUS

1. 1. Penal provisions

Offences and penalties in support of the principal provisions.

1. Evidence & process

Rules relating to proceedings arising out of the principal provisions.

1. Delegation of legislative powers

Powers to make subsidiary legislation to supplement the principal provisions.

F. FINAL PROVISIONS

1. Amendments and repeals

Alterations to existing law resulting from the principal provisions.

1. Savings & transitional provisions

Temporary provisions made necessary by the alterations to existing law made by the Act.

1. Coordinating Provisions

When a bill amends a provision that is also being amended by another bill, a coordinating provision may be required to ensure that the two amendments operate harmoniously and that the later one does not undo what the earlier one has accomplished.

This model is not universally followed. In many 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.

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

REVIEW

In this Section, you have reviewed the nature of legislative instruments, in particular bills and Acts, and the terms used to describe their components. At the end of this Section, you should be able to describe: the various types of legislative instruments 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 Acts and their standard components.

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

Read through the Essential Questions at the beginning of this Section. Remind yourself of what was dealt in each question, asking yourself whether you have met the Section objectives.

You should have found little difficulty in familiarising yourself with the matter in this Section. If you are unsure about anything it covers, re-read the appropriate part in including any material you have added in a connected activity. In later Modules you will meet again much of what you have studied here.