A drafter’s perspective
June 2011
Outline




The structure of legislation
A plain reading
A purposive construction
The context in which legislation is drafted
The statutory context:
 The application of the Interpretation of Legislation Act 1984
and other Acts of general application
 Federal constitution
The common law context:
 Case law
 Some interpretive rules and aids to interpretation
The structure of legislation


Make sure you have the correct version of the
legislation
Read the Act as a whole

Finding the correct version of an Act

www.legislation.vic.gov.au
 Statute Book (Acts passed and Regulations made in a designated year)
 Authorised versions and historic Acts
 Law Today (current consolidated versions of principal Acts and
Regulations)
 Authorised versions and version history
 Parliamentary Documents (Bills and explanatory memoranda)
 As sent prints and As passed prints

www.ocpc.vic.gov.au

www.parliament.vic.gov.au
 Commencement Book
 Act and Statutory Rule Tables
 Lists of current Acts and statutory rules
 Hansard
 Information regarding parliamentary process
Read the Act as a whole
Structure and layout of legislation
 Chapters, Parts, Divisions, Subdivisions, sections,
subsections, paragraphs subparagraphs and subsubparagraphs
 Numbering conventions
 Definitions
 Punctuation
 Notes and examples
Standard or common provisions in Acts
Preamble
Long title and short title
Purpose
Objects/Principles
Commencement
Definitions
Binding the Crown
Regulation making powers
Transitional provisions
Self repealing provisions in amending Acts

Give the provision a plain reading

Look at the context of the provision
A Purposive construction
 Section 35(a) of the Interpretation of Legislation
Act 1984
Section 35(a) of the Interpretation of Legislation Act 1984
provides-
In the interpretation of a provision of an Act or subordinate
instrument:
(a) a construction that would promote the purpose or
object underlying the Act or subordinate instrument
(whether or not that purpose or object is expressly
stated in the Act or subordinate instrument) shall be
preferred to a construction that would not promote
that purpose or object; and

Extrinsic aids to interpretation:
Interpretation of Legislation Act 1984 section
35(b):
(b)
and
consideration may be given to any matter or document that is
relevant including but not limited to—
(i)
all indications provided by the Act or subordinate
instrument as printed by authority, including
punctuation;
(ii)
reports of proceedings in any House of the Parliament;
(iii)
explanatory memoranda or other documents laid before
or otherwise presented to any House of the Parliament;
(iv)
reports of Royal Commissions, Parliamentary Committees,
Law Reform Commissioners and Commissions, Boards of
Inquiry or other similar bodies.
Statutory context for interpreting legislation Legislation of general application
Interpretation of Legislation Act 1984
Charter of Human Rights and Responsibilities Act
2006
Sentencing Act 1991
Criminal Procedure Act 2009
Infringements Act 2006
Monetary Units Act 2004
Constitution Act 1975

Interpretation of Legislation Act 1984
Commencement and repeal of Acts
Formal matters relating to Acts
Rules of construction (interpretation) of Acts
Definitions (s. 38)
Saving of Acts and things done under repealed
provisions
Delegation of powers
Matters dealing with the exercise of powers and
duties
Special provisions dealing with subordinate legislation
(including regulations, rules of court and other
statutory rules)

Charter of Human Rights and Responsibilities
Act 2006
Sets out human rights and responsibilities drawn
from ICCPR
Statements of compatibility
Statutory interpretation
Supreme Court powers to make declarations
Duties of public authorities

Sentencing Act 1991
Creation of offences: s. 111
Penalty levels: s. 109

Infringements Act 2006
Issuing and serving of infringement notices and
enforcement of infringement penalties for 60
Acts that contain infringement offences

Criminal Procedure Act 2009
Section 72 provides that the defendant bears the
evidential burden of proof in relation to any
exception or excuse to an offence created by
statute

Monetary Units Act 2004
Sets penalty units and fee units
Fixed by the Treasurer by Government Gazette
notice

Constitution Act 1975
Parliament, Executive, Supreme Court
Special and absolute majority requirements
Section 85 (jurisdiction of the Supreme Court)
Referendum provisions
Common law context for statutory interpretation

Case law

Legal assumptions/rules of construction
 Presumption against retrospective operation
 Presumption of Crown not bound by legislation
 Presumption against alteration of common law doctrines
 Privilege against self incrimination
 Legal professional privilege / client legal privilege
 Acts presumed to be within legislative powers of the State
 Presumption against extraterritoriality
 Rule against delegation of legislative power