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The Loophole – November 2020 The Loophole – November 2020 Commonwealth Association of Legislative Counsel THE LOOPHOLE November 2020 (Issue No. 3 of 2020) The Loophole – November 2020 THE LOOPHOLE—Journal of the Commonwealth Association of Legislative Counsel Issue No. 3 of 2020 Editor in Chief − John Mark Keyes Editorial Board − Bethea Christian, Therese Perera, Bilika Simamba CALC Council President − Geoff Lawn, Parliamentary Counsel, Western Australia Past-president – Brenda King, First Legislative Counsel, Northern Ireland Vice President − Katy LeRoy, Parliamentary Counsel, Queensland Secretary − Ross Carter, Parliamentary Counsel, New Zealand Treasurer − John Mark Keyes, Sessional Professor, University of Ottawa, Canada Council Members − Md. Jakerul Abedin, Joint Secretary, Legislative and Parliamentary Affairs Division, Bangladesh Michelle Daley, Senior Legislative Counsel, Cayman Islands Angeline Dovo, Parliamentary Counsel, Vanuatu Wendy Gordon, Deputy Law Clerk and Parliamentary Counsel, House of Commons, Canada Adrian Hogarth, Parliamentary Counsel, United Kingdom Lucy Marsh-Smith, Principal Legislative Drafter, Jersey Andrew Nkunika, Permanent Secretary – Legislative Drafting, Zambia Johnson Okello, Director, Legal Services, The Senate, Kenya Therese R. Perera, P.C., Specialist in Legislation and Legislative Drafting/ Retired Legal Draftsman, Colombo, Sri Lanka Lyanne Vaurasi, Deputy Chief Law Draftsperson, Fiji Page ii The Loophole – November 2020 Editorial Policies The Loophole is a journal for the publication of articles on drafting, legal, procedural and management issues relating to the preparation and enactment of legislation. It features articles presented at its bi-annual conferences. CALC members and others interested in legislative topics are also encouraged to submit articles for publication. Submissions should be no more than 8,000 words (including footnotes) and be accompanied by an abstract of no more than 200 words. They should be formatted in MSWord or similar compatible word processing software. Submissions and other correspondence about The Loophole should be addressed to — John Mark Keyes, Editor in Chief, The Loophole, E-mail: [email protected] Copyright All rights are reserved. No part of this publication may be reproduced or transmitted without the permission of the holders of the copyrights. Unless otherwise stated, copyright is held by the authors of the published material. This restriction does not apply to transmission to CALC members or to reproduction for that purpose. Disclaimer The views expressed in the articles contained in this issue are those of the contributors alone and do not necessarily reflect those of the CALC Council. Page iii The Loophole – November 2020 Contents Editor’s Notes ................................................................................................................................. 1 Interpretation Acts — Are they, and (how) do they make for, great law? Ross Carter .................................................................................................................................. 2 The Procrastinating Executive: Uncommenced Legislation in Four Commonwealth Countries Sonja Zivak ............................................................................................................................... 77 Public Health Legislation in the Time of a Pandemic Michele Forzley, Jobin V George, Urvi Patel, Lauren McGee, Matthew Shevlin, Alisha Dwivedi ................................................................................................................................... 108 Unconstitutional: Who Says? A Comment on the Reference re Genetic Non-Discrimination Act Donald L. Revell ..................................................................................................................... 126 ___________________ Page iv The Loophole – November 2020 Editor’s Notes This issue of the Loophole takes us from the sunny days of the 2019 CALC Conference in Zambia to the rather less certain times we are living in now with COVID-19. The first two articles consider what might be called legislative infrastructure: elements of our legislative systems that are critical to its operation, but which seldom attract attention. We begin with Ross Carter’s monumental piece on Interpretation Acts. It journeys into the origins of these Acts in the 19th century and back again to contemporary questions about relying on them in drafting legislation and their effect on its interpretation. Sonja Zivak also looks at an important dimension of legislative systems: commencement. This word is a word often associated with ceremonies celebrating academic graduation, but in the legislative context it is about how and when legislation comes into force. Sonja’s article provides a very helpful overview of the drafting techniques used for the former and asks some hard questions about the latter, particularly as concerns lengthy delays in commencement calling into question the enactment of the legislation in the first place. This issue turns next to questions that are all too current: drafting legislation to deal with a pandemic. There is no shortage of commentary on this question, much of it taking place virtual, socially distanced events that have introduced words like “zooming” into our vocabularies. Michele Forzley and her students have something rather more enduring: an article surveying the principal public health practices for addressing disease outbreaks and the types of legislation needed to support these practices. Their research is focused on a range of Commonwealth countries and should be quite pertinent CALC members. This issue concludes with a comment by Don Revell on a recent decision of the Supreme Court of Canada about an Act on genetic testing that had been passed despite the views of two attorneys general that was unconstitutional. Despite their views, a majority of Court concluded the Act was within the constitutional authority of the federal Parliament. Don discusses the implications of the case for legislative counsel drafting legislation. As we move closer to the end of 2020, and what is customarily a festive season, I wish you all the best, and especially good health. I have high hopes for 2021. Take care, John Mark Keyes Ottawa, November 2020 Page 1 The Loophole – November 2020 Interpretation Acts — Are they, and (how) do they make for, great law? Ross Carter1 Abstract: The paper considers the purposes and evolution of Interpretation Acts, including the following points: • how, as default law, they inform and interact with other legislation: • their scope as, and interaction with other, interpretation law (including links with interpretation legislation in related jurisdictions): • ways they can stop being, or fail to be, great law (that is, law that is accessible, fit for purpose, and constitutionally sound): • ways policy-makers and drafters can meet the challenges (in Te Reo Māori: ngā wero) of making them, and all the other law that interacts with them, great law. 1 Principal Counsel, New Zealand Parliamentary Counsel Office. This paper states personal views only, and does not state views of New Zealand’s Government or Parliamentary Counsel Office. Many thanks for their generous help with this paper, and with the usual disclaimer, to John Burrows ONZM QC, Jean-Paul Chapdelaine, Richard Dennis AM PSM, Michelle Egan, Nick Horn, Chad Jacobi, John Mark Keyes, Anand Kochunny, Geoff Lawn, Paul Salembier, and Edgar Schmidt. This paper was prepared for April 2019, and updated slightly in March 2020 and October 2020. Interpretation Acts ____________________________________________________________________________________________ Table of Contents 1 Purpose and overview .......................................................................................................... 3 2 Interpretation Acts’ evolution and purposes ........................................................................ 4 3 How, as default law, Interpretation Acts inform and interact with other legislation ......... 46 4 Interpretation Acts’ scope as, and interaction with other, interpretation law (including links with interpretation legislation in related jurisdictions) ................................................ 52 5 Ways Interpretation Acts can stop being, or fail to be, great law ...................................... 55 6 Ways policy-makers and drafters can meet the challenges of making Interpretation Acts, and all the other law that interacts with them, great law ...................................................... 64 Appendix: development of, and literature about, Acts of different jurisdictions ................. 67 "Thus I rediscovered what writers have always known (and have told us again and again): books always speak of other books, and every story tells a story that has already been told." – Umberto Eco, The Name of the Rose / Il Nome della rosa (1983), Postscript. “A body of laws is a vast and complicated piece of mechanism, of which no part can be fully explained without the rest.” – Jeremy Bentham An Introduction to the Principles of Morals and Legislation (originally printed in 1780, and first published in 1789), ed. J.H. Burns, & H.L.A. Hart, Oxford, 1996 (CW), at 299. “It is not easy to find a book that gives a convenient outline of the general history of legislation.” – Vince Robinson, “Codes, dooms, constitutions and statutes: the emergence of the legislative form of legal writing” (1994) 1 Law Text Culture 106‒128 at 117. “The whole story remains to be told and
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