Now that you have a decision from your minister (or cabinet as the case requires) that the government would like to undertake law reform to solve this problem, you need to take steps to turn that policy into drafting instructions, which can then be provided to a legislative drafter to turn into legislation. The process of working with a legislative drafter is explored further in Topic 5.
Depending upon your reform, you may still have only a very broad policy decision at this stage. There may still be a range of additional considerations you may need to think about, make policy decisions on and provide appropriate drafting instructions for. This topic, and the next, help you to turn a broad proposal for law reform into a detailed proposal. This will enable you to provide enough detail to a legislative drafter to develop legislation that will work well in practice, integrates effectively with other existing laws and minimises the risk of unintended consequences.
This topic provides further guidance on factors to consider when addressing common law reform outcomes, such as imposing a tax, introducing a criminal offence or creating a new legal entity. The next topic deals with practical issues you will need to consider when developing your law reform, such as whether the reform will be an Act or subordinate legislation, when it will commence, and how you might transition from an existing legislative regime.
It is unlikely that everything in this topic will be relevant to you, so the flow charts below will help you to identify what is relevant and guide you to the correct sub-topic.
The first flow chart sets out the things that must be considered with every law reform. The second flow chart are things that may be relevant, depending on your particular reform.
3.1 How does your proposed law reform interact with the Constitution?
A Constitution is the central law which sets out how a State is to be organised and governed. As all other laws are subject to the Constitution, any laws that conflict with it will be invalid. For example, Article II, section 1 of the Constitution of the Federated States of Micronesia provides that:
This Constitution is the expression of the sovereignty of the people and is the supreme law of the Federated States of Micronesia. An act of the government in conflict with this Constitution is invalid to the extent of conflict.
When undertaking law reform you should consider what restrictions may exist within the Constitution which may limit the nature and scope of your reform. For example, many Constitutions contain articles setting out the fundamental rights of that country’s citizens, which may limit the scope or potential application of a proposed reform.
For example, Samoa’s Constitution contains ‘Part II Fundamental Rights’, which includes:
|Article 5||Right to life|
|Article 6||Right to personal liberty|
|Article 7||Freedom from inhuman treatment|
|Article 8||Freedom from forced labour|
|Article 9||Right to a fair trial|
|Article 10||Rights concerning criminal law|
|Article 11||Freedom of religion|
|Article 13||Rights regarding freedom of speech, assembly, association, movement and residence|
|Article 14||Rights regarding property|
|Article 15||Freedom from discriminatory legislation|
4. Remedies for enforcement of rights:
- Any person may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred under the provisions of this Part.
- The Supreme Court shall have power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions of this Part.
Other issues, such as the establishment and makeup of the judicial system, issues of public employment (such as appointments and terminations of particular roles within the public service) and finance related issues (such as establishing funds for public money), frequently appear in Pacific Constitutions and may impact on your particular reform.
If you have any doubt as to whether your reform complies with your country’s Constitution, it is a good idea to seek legal advice as early as possible.
3.2 How does your proposed law reform interact with customary law?
While not relevant to all proposed law reforms, you will need to assess what customary institutions and practises may be relevant to your proposed reform.
Many Pacific Island Constitutions make provision for custom as a source of law where not inconsistent with the provision of the Constitution or other legislation. For example, the Solomon Islands’ Constitution provides:
Schedule 3 – Application of laws
- Subject to this paragraph, customary law shall have effect as part of the law of Solomon Islands.
- The preceding subparagraph shall not apply in respect of any customary law that is, and to the extent that it is, inconsistent with this Constitution or an Act of Parliament.
- An Act of Parliament may:-
- provide for the proof and pleading of customary law for any purpose;
- regulate the manner in which or the purposes for which customary law may be recognised; and
- provide for the resolution of conflicts of customary law.
While some jurisdictions have formal mechanisms to prompt a consideration of the impact of proposed law reform on custom, such as the Customs Impact Report required in Samoa, this is not the case in most countries. Instead, if custom is relevant to your reform, you will need to decide which customary features will be affected by your reform, and how, and to what extent, it will need to be incorporated into the legislation being developed. For example, Village Fono Act 1990 (Samoa):
8. Courts to take account of penalty imposed by Village Fono
When punishment has been imposed by a Village Fono in respect of village misconduct by any person and that person is convicted by a Court of a crime or offence in respect of the same matter the Court shall take into account in mitigation of sentence the punishment imposed by that Village Fono.
3.3 Have you considered Acts of general application?
When developing new or amending legislation, it is helpful to be aware of any Acts of general application. These are Acts which apply to all other legislation and which provide the rules that apply to or are necessary for the interpretation of all other legislation. It is helpful to be aware of these other Acts and how they might interact with your proposed law as they may affect the way it operates.
For example, most countries will have an Interpretation Act which provides information and definitions that are relevant to all legislation. A drafter must always have regard to an Interpretation Act and it is good practice for you as the policy officer to also be aware of how your country’s Interpretation Act applies to your proposed reform.
By way of example, the Investment Corporation of Solomon Islands Act 1988 (Solomon Islands) provides the following in section 5:
- Subject to the provisions of subsections (2) and (3), the Corporation shall have powers to do anything which is calculated to facilitate the discharge of its functions, or is incidental or conducive to their discharge.
- In particular, and without prejudice to the generality of the provisions of subsection (1), the Corporation may—
(f) acquire and dispose of movable or immovable property;
- money, goods, chose in action and land; and
- obligations, easements and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property as defined in paragraph (a) of this definition;
2 (1) This Act applies to the interpretation of and otherwise in relation to-
- this Act;
- any other Act made before the commencement of this Act, except in so far as a contrary intention appears in this Act or the other Act; and
- any other Act made after the commencement of this Act, except in so far as a contrary intention appears in the other Act.
- criminal legislation
- ombudsman legislation
- human rights legislation (discussed further in topic 3.5)
- administrative law legislation (discussed further in topic 3.8)
- privacy legislation
- freedom of information legislation
- legislation dealing with the spending of money by government and government borrowing (i.e. public finance).
Again, if you have any doubt it is best to seek legal advice early.
3.4 How does your proposed law interact with your country’s international legal obligations?
International law consists of rules and principles which apply to the conduct of states and international organisations in their relations with one another and, in some cases, with individual groups and transnational companies. From these rules and standards arise a range of rights and obligations. You must be aware of these rights and obligations when undertaking any legislative reform which may interact with international law.
3.4.1 Commonly used terms
The most relevant part of international law for the purposes of domestic law reform is international treaties. Under the Vienna Convention on the Law of Treaties (Article 2(1)(a)), a treaty is defined as “an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”. The term ‘treaties’ covers a variety of international instruments, such as conventions, protocols or exchanges of notes.
It is helpful to understand some of the terms frequently used in relation to international treaties. You will often hear that a country is a ‘signatory’ to a particular treaty. ‘Signature’ is the term used to show that a country agrees with the contents of a treaty. It does not necessarily mean that the country intends to be bound by that treaty. However, being a signatory does give rise to a duty to refrain from acts which would defeat the object and purpose of a treaty.
For example, Country A may have signed the Convention on the Rights of the Child (CRC), but not yet acceded to it. Under Article 37(a) of CRC, “Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age”. While Country A is not internationally bound to this obligation, it could be argued that to continue to sentence children to life imprisonment could undermine the object and purpose of the clauses of CRC.
‘Ratification’ is when a country agrees to be bound by a treaty. This is also often referred to as becoming ‘a party’ to a treaty. Depending upon whether your country is monist or dualist (see topic 3.4.2), you may need to undertake domestic law reform to ensure that the domestic legal framework is in place to support the obligations under the treaty.
‘Accession’ refers to the situation where a country was not an original signatory to the treaty, but later decides to be bound by it.
If your law reform is relevant to international treaty obligations, you need to be aware of any ‘reservations’ your country may have made to the treaty. A ‘reservation’ is a “unilateral statement, however phrased or named, made by a country, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State” (Article 2(1)(d) of the Vienna Convention on the Law of Treaties).
3.4.2 Incorporating international law into domestic legal systems
There are two approaches for how international law is adopted into a domestic legal system, the ‘dualist’ approach and the ‘monist’ approach. Both of these approaches exist in the Pacific.
The dualist approach treats international law and domestic law as two separate legal systems. In a dualist system, treaties entered into do not directly form part of a country’s domestic law. Instead, domestic legislation needs to be enacted separately to give the treaty effect domestically. This approach is generally followed by those countries which have been historically tied to Britain.
There are a variety of approaches for incorporating international law into a dualist system, including:
- reflecting the principles of the treaty text in the legislation (either exactly or in a more contextualised manner);
- setting out the text of the treaty (either in full or in part) in the legislation. This will usually be done via a schedule;
- including a provision in the Act that allows for the making of subordinate legislation that gives effect to the treaty (or particular parts of it);
- a combination of these approaches.
Under the monist approach, the legal system of a country automatically includes those international treaties by which the country has agreed to be bound. There is no subsequent legislation needed to give them effect domestically. This approach is generally followed by those countries which have been historically tied to the United States.
It is helpful to understand what approach your country takes, as it will impact what needs to be done in your domestic legislation to give effect to international obligations.
3.4.3 Ensuring your law reform complies with treaties your country has signed
As described above, if your country has ratified a treaty it may automatically become a part of your domestic law, or you may need to undertake law reform to ensure it is implemented into domestic law (see further guidance at topic 3.6).
It is critical to understand what treaties your country has signed, and what rights and obligations arise from this, before you proceed with law reform which may inadvertently contradict the object and purpose of one of these treaties. This is because, as stated in topic 3.4.1, in international law being a signatory to a treaty gives rise to a duty to refrain from acts which would defeat the object and purpose of that treaty. This duty exists unless a signatory has made it clear that it no longer intends to become a party to the treaty.
If you are ever in doubt it is best to seek the advice of your country’s relevant legal office.
For example, Country A is considering legislation to introduce a range of maritime enforcement powers relating to customs and fisheries which can be exercised up to 200 nautical miles from the country’s coast. Country A is a party to the United Nations Convention on the Law of the Sea (UNCLOS). While a country has sovereign rights over marine resources in its exclusive economic zone (up to 200 nautical miles), a country can only deal with customs-related matters within the contiguous zone (up to 24 nautical miles from the coast) (see Article 33).
3.5 How does your proposed law interact with international human rights obligations?
3.5.1 What are human rights?
Human rights are an internationally agreed set of principles on how an individual should be treated. Human rights work to promote fairness and equality and apply universally to all people. International human rights treaties provide an agreed set of human rights standards and establish mechanisms to monitor the way a treaty is implemented.
Key international human rights treaties are:
- the International Covenant on Civil and Political Rights;
- the International Covenant on Economic, Social and Cultural Rights;
- the Convention on the Elimination of All Forms of Racial Discrimination;
- the Convention on the Elimination of All Forms of Discrimination Against Women;
- the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
- the Convention on the Rights of the Child; and
- the Convention on the Rights of Persons with Disabilities.
Your country is likely to be a party to at least some of these treaties. It may be helpful to check with your country’s Department or Ministry of Foreign Affairs to confirm to which of these your country is a party or signatory.
3.5.2 Will the proposed legislation have any implications for human rights?
You must consider any potential impact your legislative reform will have on human rights.
More than just a statement of good intentions, human rights treaties create legal rights and obligations for those countries which are a party to them. When undertaking legislative reform, you must determine which international treaties your country is a party to and what duties arise from this.
Your analysis should consider any laws in your country that implement international human rights treaties.
You should consider any human rights treaties your country has signed but not yet ratified. This is because, as discussed in topic 3.4.1, signature gives rise to a duty to refrain from acts which would defeat the object and purpose of a treaty, until such time as a signatory makes it clear that it is no longer intending to become a party to the treaty.
As discussed in topic 3.1, you must also consider what human rights might exist in your country’s Constitution which may intersect with your reform.
3.6 Are you implementing international treaty obligations?
3.6.1 Domesticating international obligations
This part provides guidance to policy officers who have been tasked with implementing a treaty, or part of a treaty, that your country has ratified. With the growing number of international instruments, this is likely to be a common law reform topic across many Pacific countries. There are often relevant regional and international organisations who can support you through this process, so keep that in mind as you undertake your law reform and seek assistance if required.
As a first step, you will need to consider how international law is incorporated into your domestic legal system, that is, whether your country is monist or dualist. See topic 3.4.2 above for more guidance on this. If your country follows the monist tradition, it is likely that no further legislation will be required to implement the treaty obligations.
If you determine that law reform is required, a useful approach is to undertake a gap analysis of the obligations of the particular treaty against your existing legal framework. This involves looking at your country’s existing legislation to work out whether it already covers any of the treaty’s obligations – which means you don’t need to do further law reform to implement these measures.
This can be done firstly by summarising the obligation created by each article of the relevant treaty. You will then need to analyse your existing legislation to determine whether the existing framework is compliant, not compliant or partially compliant. It is useful to provide some information about why you have made this assessment and, where an assessment of partial compliance is made, what the gap is. This will give you a good overview of what law reforms will need to be made.
The below provides a fictitious example of mapping compliance against three articles of the Convention on Psychotropic Substances 1971:
|Art 5||Limitation of use to medical and scientific purposes|
Parties are to limit the manufacture, export, import, distribution and stocks of, trade in, use and possession of the substances in Schedules II, III, and IV to scientific and medical purposes, by such measures as they consider appropriate.
Parties are encouraged to limit possession of these substances to those persons with legal authority.
While some Schedule IV substances
are included in the list of prescription- only medications in Schedule 3 to the Medical Drugs Regulation 2003, current legislation does not place controls on the full range of substances included in Schedules II, III and IV to the Convention.
|Art 6||Special administration|
Parties are encouraged to establish a special administration to apply the provisions of this Convention. It may be the same as or work closely with the special administration established pursuant to the 1961 Convention on Narcotic Drugs.
The National Illicit Drugs Board Act
1997 established, the National Illicit Drugs Control Board (the Board) and the National Illicit Drugs Bureau (the Bureau). The Board brings together representation from across the country with an interest in drug-control. The Bureau is established to advise and report to the Board, including making licensing recommendations and ensuring compliance with licences.
|Art 7||Special provisions regarding substances in Schedule I|
Use of substances in Schedule I to be prohibited except for limited use for scientific or medical purposes by medical or scientific establishments under government control.
Manufacture, trade, distribution and possession of Schedule I substances to be under special licence or authorisation, be closely supervised, restricted in quantity, and subject to record-keeping.
Amount of substances supplied to a duly authorized person to be restricted to the quantity required for authorised purpose, and persons performing medical or scientific functions must keep records (for 2 years) of acquisition of substances and their use. Export and import prohibited except where the exporter/importer is a competent agent of the exporting or importing state or region.
Article 12 (1) applies to Schedule I substances.
While a majority of the substances listed in Schedule I to the Convention were declared to be dangerous drugs by declarations made in 1981 and 1994, there remain a handful of omissions, including MDMA and MMDA.
3.6.2 Assistance interpreting obligations
There are a number of tools which can be used to help you understand which obligations arising under a treaty require legislative reform. These tools will often provide specific guidance on how to implement the treaty’s obligations in legislation. While these sources aren’t strictly authoritative, they may still help you to understand the meaning and purpose of the treaty.
It is helpful to see if any of the following exist in relation to the treaty you are looking at:
- explanatory reports, for example, the Explanatory Report on the 1980 Hague Child Abduction Convention;
- guidance notes, for example, the Council of Europe has issued a number of guidance notes on specific concepts to aid in the implementation of the Budapest Convention on Cybercrime;
- treaty committee reports, for example, the UN Human Rights Committee reviews periodic reports submitted by states and issues findings and General Comments that interpret the provisions of the International Covenant on Civil and Political Rights; and
- legislative guides, for example, the Legislative Guide for the Convention against Transnational and Organised Crime and the Protocols thereto.
3.7 Are you introducing financial provisions, such as taxes or fees?
Fiscal legislation is legislation that relates to government revenue. Typically, this is in the form of either a tax or a fee.
A tax refers to general revenue raising by a government, for the public purpose, but with no specific public good or service identified at the time the funds are raised. On the other hand, a fee is imposed in return for a specific good or service provided by the government to a particular individual.
There are a number of factors you will need to consider when introducing financial provisions, including how money is to be collected, how it will be held by the government and accounted for, and how the funds will be dispersed. Usually, there will be public financial management legislation with rules that govern these issues. You should also consider any existing taxes, fees or incentives that the government have in place (e.g. tax or fee exemptions) and the legislation which relates to these.
You should talk to the relevant department (e.g. Department of Finance, Treasury etc) in your country as early as possible in the reform process to ensure that the policy introduced by your scheme is consistent with other financial schemes and that any obligations under existing financial management legislation are met.