Local governments must adhere to stipulated guidelines and legislative principles when drafting local laws.
Statutory guidelines for drafting local laws
Sections 29(5) of the Local Government Act 2009 and 30(5) of the City of Brisbane Act 2010 provide that local laws must be drafted in accordance with the drafting guidelines issued by the Parliamentary Counsel under section 9 of the Legislative Standards Act 1992.
The Guidelines for drafting local laws apply to all local laws and have been specifically developed to assist local governments in drafting high quality and consistent laws. They are a useful tool for local law drafters and include practical examples on the application of contemporary legislative drafting standards. Matters covered by the guidelines include:
- if repealing or amending another local law, the local law must include a provision that repeals or amends an existing local law
- relationship of local laws with other legislation
- format and printing style
- dealing with definitions
- drafting style including language and clarity
- penalty and obligation provisions
- rules relating to amendment local laws
- the application of fundamental legislative principles.
Fundamental legislative principles
Fundamental legislative principles, designed to protect the rights and liberties of individuals, are defined in section 4 of the Legislative Standards Act 1992. Care should be taken to observe and apply fundamental legislative principles when drafting local laws.
The Guidelines for drafting local laws provide details about the fundamental legislative principles with practical examples on their application including, but not limited to:
- consistency with the principles of natural justice
- reversal of onus of proof
- judicial warrants to exercise entry, search and seizure powers
- protections against forced self incrimination
- implementing retrospective laws
- Aboriginal tradition and Island custom
- inappropriate imposition of responsibility
- undue restrictions imposed on ordinary activities
- proportionality of offences
- appropriate defences
- use of extraordinary powers only in exceptional or urgent circumstances.
It is important to note that while a departure from the fundamental legislative principles may be justifiable in certain circumstances any decision to do so must be based on sound reasoning.