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Loophole Journal COMMONWEALTH ASSOCIATION OF LEGISLATIVE COUNSEL THE LOOPHOLE OCTOBER 2007 COMMONWEALTH ASSOCIATION OF LEGISLATIVE COUNSEL Persons are eligible to become individual members of CALC if they (a) are or have been engaged in legislative drafting or in training persons to engage in legislative drafting, and (b) are Commonwealth persons. A “Commonwealth person” is a person who is a citizen or a permanent resident of, or who is domiciled in, a country or territory that is a member of the Commonwealth of Nations. Persons who have been so engaged but who are not Commonwealth persons are eligible to become associate members of CALC. CALC Council President—Eamonn Moran (Victoria, Australia) Vice President—Janet Erasmus (British Columbia, Canada) Secretary—Duncan Berry (New South Wales, Australia) Treasurer—Madeleine McKenzie (Scotland, United Kingdom) Members: Bilika Simimba (Cayman Islands) Elizabeth Bakibinga (Uganda) Enver Daniels (South Africa) George Tanner (New Zealand) Jeremy Wainwright (Australia) Lucy Marsh-Smith (Isle of Man) Therese Perera (Sri Lanka) Tony Yen (Hong Kong) Correspondence Correspondence should be addressed to— Dr. D. E. Berry Secretary of the Commonwealth Association of Legislative Counsel Room 614, Office of the Attorney General, Government Buildings, Upper Merrion Street Dublin 2, Ireland Telephone: +353 1 631 4049 Fax: +353 1 661 1287 Email: [email protected]. ie or [email protected] Copyright All rights are reserved. No part of this publication may be reproduced or transmitted without the permission of the CALC Council. This restriction does not apply to transmission to CALC members or to reproduction for that purpose. 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. 2 THE LOOPHOLE Journal of the Commonwealth Association of Legislative Counsel Issue No. 3 of 2007 October 2007 Editor—Janet Erasmus, Senior Legislative Counsel, British Columbia, Canada CONTENTS Editor’s Notes ....................................................................................................................... 4 The nature of legislative intention and its implications for legislative drafting by Daniel Greenberg ............................................................................................................. 6 Aspects of law revision in the Commonwealth by Neil Adsett ....................................................................................................................... 18 Keeping the Statute Book up-to-date―A personal view by Duncan Berry ................................................................................................................... 33 Statute Revision in British Columbia: Recent developments from a jurisdiction with a long history of statute revision by Janet Erasmus................................................................................................................... 50 Straddling a barbed wire fence: reflections of a gamekeeper, turned poacher, turned gamekeeping poacher by Stephen Argument............................................................................................................ 66 Commonwealth Association of Legislative Counsel Membership Application Form .................................................................................................................. 78 _________________________________ 3 Editor’s Notes With this issue we present the final instalment of our 2005 CALC conference papers. My particular thanks to Gayle Moore, Legislative Program Coordinator in our office, for her assistance in preparing this issue. Daniel Greenberg’s paper on the court’s approach to “legislative intention” may be familiar to some of us, as it was published last year in the Statute Law Review. In correspondence to arrange for publication permission from Oxford University Press, Daniel indicated that there have been a number of important Pepper v. Hart developments since the paper was prepared, and that we can expect further on this in the next edition of Craies on Legislation, which he is presently preparing. The trio of presentations on “consolidation, revision and rewriting” starts with Neil Adsett’s paper outlining the methodology he applies when preparing statute revisions for smaller jurisdiction s in the Commonwealth. (Perhaps not as entertaining as his speech at the conference, but of good practical guidance for approaching such projects.) Duncan Berry’s paper provides an overview of the challenges in keeping to statute book up-to-date and the responses taken by various jurisdictions to those challenges, while my paper describes the benefits (and luxury) of having a long-established general statute revision process, and British Columbia’s new approach to statute-by-statute revision. As a bonus, we also have Steven Argument’s paper presented earlier this year at the Australia– New Zealand Scrutiny of Legislation Conference. With its intriguing title, “Straddling a barbed wire fence” looks at parliamentary scrutiny of legislation through the eyes of someone who has one foot on the drafting side of the fence and the other on the legislative review side. Steven’s paper reminds us of the limited but important policy role of legislative drafters – not in deciding what a particular policy should be, but ensuring to the best of our abilities that the instructors understand the legal and practical implications of the legislation they are asking us to prepare. Which brings me to my final note, by way of an announcement about the next CIAJ Legislative Drafting Conference to be held in Ottawa, Canada, September 11-12, 2008. While most of the professional development programs presented by the CIAJ (Canadian Institute for the Administration of Justice) are directed at the judiciary and administrative tribunal members, they also present a bi-annual conference for the other writers of the law – legislative drafters. In the past these conference have focussed on drafting issues. Next year’s conference will widen the perspective, to look at the intersecting roles of those involved in determining the wording of legislative texts, including policy analysts, instructing officials, legal advisors, translators, jurilinguists, editors, and (last in my list, but of course not least) parliament and its law-making delegates. The conference theme: Who Really Writes the Law? Questions to be considered by conference speakers include: What are the distinctive roles of the various participants? Are there overlaps or conflicts? Are these roles evolving in response to changes in the political culture or environment for law-making? 4 Having had the opportunity to work with the Australian Office of Parliamentary Counsel, and having others from my office report on their experience drafting in other jurisdictions, I believe the issues will be of interest beyond the Canadian framework. Perhaps we will see some of our Commonwealth colleagues there. Janet Erasmus Senior Legislative Counsel Office of Legislative Counsel Province of British Columbia Canada October 15, 2007 _________________________________ 5 The nature of legislative intention and its implications for legislative drafting The nature of legislative intention and its implications for legislative drafting Daniel Greenberg Introduction It is one of the most ancient principles of the law of England and Wales that in applying legislation the courts and any other reader should aim to construe it “according to the intent of them that made it”1. But while this trenchant aphorism is initially and superficially satisfying, like many an epigram the more one thinks about it the less it appears to mean. Who are “those who made the legislation”? In the case of an Act of Parliament, it was notionally made by that shadowy concept “The Sovereign in Parliament”, being neither the Sovereign, nor the Houses of Parliament, but a notional agglomeration2. To suggest that the Sovereign personally had any intention as to what was to be achieved by the legislation when giving Royal Assent to it would be patently absurd. Equally, to suggest that both Houses, or even either House, actually had a single intention in relation to the construction of the Act would be to defy obvious reality. And as soon as one arrives in the search at individuals who might be reasonably expected to have had actual and ascertainable intentions as to the construction of the legislation – such as the draftsman of the Bill, the departmental administrators or lawyers with responsibility for the content of the Bill, the Minister in charge of the Bill in either House, or individual Members of either House participating in consideration of the Bill – one has left the class of persons whose intentions can without constitutional impropriety be treated as the intentions of Parliament. In the case of subordinate legislation, the fact that there will often be a single individual making the legislation in a formal sense3 might suggest that it will at least be sufficiently clear whose intent is to be considered (even if there were difficulties in establishing what the intent was). But as soon as one examines the reality of the process by which subordinate legislation is made it becomes clear that the position is no better than in the case of primary legislation and may be worse. In most cases, it is as absurd to attribute to the Minister making an instrument any actual intentions in relation to its meaning as it is to attribute intention to the Sovereign in
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