The Lone Draftsman

Unenviable Job In Pacific Territories

ONE of the most important duties of a Law Officer in a Crown Colony or a Territory is the drafting of legislation.

The Law Officer is responsible to the Governor or Administrator for advising him in every way connected with legisla tion, both as regards the substance and the form. Every year fresh points pre sent themselves for legislative action— administrative difficulties that have arisen in the past year, new policies that require legislative embodiment, developments of old institutions that require a recasting of the whole.

The Law Officer has to go into each matter from every point of view. As he has to consider Government policy and the interests of the community and the individual, he cannot accept departmental official proposals without adequate en quiries.

When we read Acts, Ordinances, and Regulations, few realise what the work of the draftsman is. It is taken for granted that the rules of good drafting are simply the rules of literary composi tion, as applied to cases where precision of language is required, and accordingly any one who is competent to draw in apt and precise terms a conveyance, a con tract, or a pleading, is competent to draw an Act or Ordinance. It is thought that a knowledge of English and a knowledge of the form and arrangement of Statutes are all that is necessary.

Much more is required. If the drafts man is to do his work well, he must be more than a mere shaper of words and forms. He must be a lawyer of wide knowledge, with constructive imagination.

The first essential is that the drafts man should be a sound lawyer with a wide experience in all branches of law. In addition, the ordinary training and prac tice of a barrister require to be largely supplemented for the purpose of drafting legislation. The draftsman must be con versant with the branch of law which re lates to the administrative duties and

powers of public authorities. He must understand the machinery of administra tion. There are questions which a prac tising lawyer does not have to consider, but which arise in the preparation of almost every legislative measure.

Before beginning to draft legislation, it is essential to master the subject matter.

It is needful to know the existing law and practice. The law is to be found in Acts, Ordinances, etc., in judicial decisions, and in legal textbooks. The practice—that is to say, the way in which the law actually works—is less easily learned. It must often be derived from personal experience or supplied by persons having such ex perience. A lawyer who has not had con siderable experience as a practising law yer is without one of the essentials of a draftsman.

“What is commonly called the technical part of legislation is incomparably more difficult than what may be called the ethi cal. In other words, it is far easier to conceive justly what would be a useful law than so to construct that same law that it may accomplish the design of the lawgiver” (Austin, Jurisprudence). “Noth ing is so difficult as to construct Acts of Parliament properly; and nothing so easy as to pull them to pieces” (Lord St.

Leonards).