Principle (e): Drafting

Overview

Senate standing order 23(3)(e) requires the committee to scrutinise each instrument as to whether its drafting is defective or unclear. Under this principle, the committee will typically be concerned with instruments which:

• contain errors or unclear drafting which are likely to affect the meaning or interpretation of the instrument; or
• do not clearly define key terms.

Drafting errors

Where an instrument contains a drafting error which may affect the meaning or interpretation of the instrument, the committee will raise the matter with the relevant agency and would generally expect such errors to be corrected as soon as practicable.

Clarity of drafting and legal certainty

Under this principle, the committee also considers the clarity and certainty of rights and obligations in legislative instruments. Unclear drafting may affect the meaning or interpretation of an instrument and may prevent persons, including those directly affected by the law, from understanding their rights and obligations. Instruments and their explanatory statements should therefore be clear and intelligible to all persons, not only those with particular knowledge or expertise.

In addition, key terms (this includes specialist terms or 'terms of art' specific to a particular industry as well as legal terms) should be clearly defined to remove any potential confusion or misunderstanding. Where the definition of a key term is sourced from the instrument's enabling legislation or another source of legislation, the relevant source provision should be cited in the instrument and/or its explanatory statement. This is particularly important where a term has a specific meaning within the context of a statutory scheme.

Explanatory statement checklist

The following checklist summarises what should be included in an instrument's explanatory statement under scrutiny principle (e).

Clear drafting

Instruments and explanatory statements should be drafted in such a way that they are clear and intelligible to all persons, including that individuals' rights and obligations are clear.

Define key terms

Key terms – including specialist terms or 'terms of art' used in a specific industry and legal terms – should be clearly defined in the instrument and its explanatory statement. Where the definition of a key term is sourced from other legislation, the relevant source provision should be cited in the explanatory statement.