LEGISLATIVE COUNCIL OF HONG KONG
HOUSE COMMITTEE PAPER
Prepared by the Law Drafting Division
of the Attorney Generals Chambers
" Style change - Using a schedule for definitions"
Introduction
At the 9th meeting of the Bills Committee to consider the Environmental Impact Assessment Bill the Chairman asked that the Administration prepare for the House Committee a paper on the rationale behind using a Schedule for definitions in this Bill.
Background
2. Over the past 8 years, the Law Drafting Division has been looking at ways to improve the presentation of legislation to make it more readable and understandable. A number of changes have taken place, including some to make the reading of legislation less tedious.
3. For example, in amending legislation the name of the principal legislation appears in the first amending clause and no further reference is then made except where necessary. Previous practice was to repeat the phrase "Section .... of the principal Ordinance is amended" in every amending section. From the context of the Bill the words in italics are clearly redundant. The use of section headings in place of marginal notes, the uniform use of "adding" material in amending legislation and the numbering system for Schedules are examples of other minor changes that have taken place in that period.
4. In all over 70 minor matters have been considered and many of them adopted. Most are invisible to the users. None have a negative impact on the legal effectiveness of the legislation. They all have some benefit.
Overseas experience
New Zealand
5. The most recent comment on the structure of legislation was made by the New Zealand Law Commission (similar in function to the HK Law Reform Commission). In May 1996 they issued a drafting manual for consideration by the New Zealand Government. At paragraph 102 on page 26 of the manual the following appears -
"Location of definitions
Scattered definitions obstruct a comprehensive understanding of an Act. Definitions are therefore best collected in one place and arranged in alphabetical order early in the Act after the ... commencement ... provisions. If there are many definitions, however, presenting them early in the Act can detract from the prominence of the major substantive provisions. In such a case it is better to place the definitions in a dictionary, or schedule, at the back of the legislation, with a provision or note early in the Act informing the user where the definitions can be found.".
This follows other overseas examples.
Australia
6. In Victoria, Australia, in the late 1980s their Law Reform Commission issued a manual as an appendix to a report on Plain English and the Law. At paragraph 118 on page 55 of the appendix they said
"Where to put definitions
The present system is to place the definitions at the beginning of an Act. This gives readers early warning of any special ways in which terms are used in the Act. But, on the other hand, it may provide them with a hurdle before they reach the main provisions of the Act. Generally, the principal substantive matters in an Act should come first and the less important or procedural matters later. It would therefore be better to put the definition section at the end of the Act. ... Readers should know that the definitions are either in the definition section or in the body of the Act; they should not need to check both positions.".
7. The use of schedules, sometimes called "dictionaries", for definitions in legislation is now current in all Australian jurisdictions and has been experimented with in New Zealand. The practice is for short definition sections to remain at the beginning of the legislation but for lengthier (over one and a half to two pages) to be placed in a schedule.
United Kingdom
8. In the United Kingdom, the Bills presented to the Parliament have traditionally be placed at the end of the substantive sections for two main reasons. First, the legislature cannot know what it needs to define until it has enacted the substantive and administrative provisions. The second reason is to ensure that the more important matters are not obstructed when the legislature commences to consider the legislation. Its mind is directed to the essence of the legislation.
Hong Hongs traditional approach
9. For a long time now and certainly since the end of the Second World War, Hong Kong has usually placed definitions in a section entitled "Interpretation" as the second section in legislation. There are examples where this pattern has not been followed. The Companies Ordinance (Cap. 32) has definitions scattered throughout various parts of the Ordinance. The Crimes Ordinance (Cap. 200) has definitions scattered through it also. In these cases the definitions are of restricted application usually applying to the Part or section of the Ordinance in which the definition appears.
The reason for the EIA Bill change
10. When the Administration presented the printed Environmental Impact Assessment Bill with the definitions contained in Schedule 1 it was conscious that this was a piece of legislation that might gain more interest than the average piece of legislation presented to the Legislative Council. The audience was likely to be wider than the range of people who might read legislation. In addition to the legislators, administrators, lawyers, judges and other professionals who might read legislation on any given topic, the question of the environment is a matter for the public at large. The audience is likely to include members of the general public.
11. Legislation is not normally easy to read. There is a degree of formalism about legislation that creates a communication barrier. The definitions for the EIA Bill typed up to almost 8 pages in the English text. When printed in normal type face, this would reduce to about 5 pages of Bill size paper. As the legislation is printed in both Chinese and English, the first 10 pages of the Bill would have been definitions. In order to reduce this barrier to an average person reading the legislation sensibly, it was decided to place the definitions in a schedule.
12. To reduce the confusion that would subsequently occur for the regular readers of legislation, a flag was placed at section 2. This reads -
As this is the normal place to find the definitions, a regular reader of legislation would be guided directly to the schedule also reducing the likelihood of confusion.
Recommendation
13. It is recommended that the House Committee -
- approve the use of a Schedule for definitions in the Environmental Impact Assessment Bill;
- approve a policy that the Law Draftsman have the discretion to use a Schedule to a Bill for definitions if the Law Draftsman is of the opinion that the inclusion of definitions early in a Bill will detract from the presentation of the main substantive provisions of the Bill. If the Law Draftsman exercises that discretion, a flag in the form of a section indicating where the definitions are found must be placed near the beginning of the Bill.
Law Drafting Division,
Attorney Generals Chambers,
Hong Kong.
1 October 1996
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