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How to tackle the drafting of legislative instruments

How to tackle the drafting of legislative instruments

By Gemma Varley

Legislation 

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The drafting of legislative instruments is one of the most serious writing tasks government lawyers undertake.

Get a legislative instrument wrong and it can take an Act of Parliament to solve the problems created. Here are some of my tips for tackling the drafting task.

Understand the purpose of the instrument: A legislative instrument must fit perfectly within the scheme of the empowering Act. Take the time to consider whether the instrument is necessary. Make sure you understand what the instrument is intended to do and the mischief to be solved.

Find the power to make the instrument: A legislative instrument is made under an Act of Parliament. Find the correct, authorized, version of the Act and identify the power to make the instrument. While you are there read the whole Act so that you are sure of the purpose of the legislation. Also check for any changes to the Act that are not yet in operation that may affect your instrument.

Know your Interpretation Act: The Interpretation Act of a jurisdiction is essential to the task of interpreting and drafting Acts and legislative instruments. An Interpretation Act includes many standard definitions and interpretive rules which a drafter needs to know. Take the time to read your Interpretation Act, it will stand you in good stead for any task involving legislation.

Draft clearly in plain English: A legislative instrument that is ambiguous or unclear is not an effective instrument. Time and money may be spent in trying to understand and advise on the meaning of an unclear instrument. Save all that effort by drafting clearly. Take the time to structure the instrument carefully and logically and to write it in plain English.

There are a number of tips to drafting clearly which will be shared in the upcoming seminar on Drafting Legislative Instruments.

Hear more from Gemma Varley and other expert presenters at the LIV's Government Lawyers Conference, 22 June. For more information and how to register, see here.


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