Legislative Drafting Guidelines | Legislative Drafting Guidelines | Normative References (23-28)
Normative References (23-28) Guideline 24

Guideline 23

Reference to other Acts should be kept to a minimum.

23.1. Reference should be made to another Act only if:
  • it makes it possible to simplify the text of the Act making the reference, by not repeating the content of the provision referred to;
  • the comprehensibility of the provision making the reference is not affected; and
  • the Act referred to has been published or is sufficiently accessible to the public.

Example A

If a Motor Vehicle Act creates a crime of driving while intoxicated, it may be appropriate for the Motor Vehicle Act to set forth the elements of the crime, while referring the reader to the Criminal Code to determine the punishment.  For example, the Motor Vehicle Act may provide, "A person who operates a motor vehicle while impaired by drugs or alcohol commits a class B crime and shall be punished under the Crimes Act."
23.2. When a reference is made to a provision, the subject matter of that provision should be indicated.
23.2.1. References made merely by citing another provision in brackets must be avoided.
23.2.2. References to existing provisions just for the purpose of requiring their application in unspecified analogous cases (as is done by using words such as “mutatis mutandis”) should be avoided. The purpose for which the reference is made should be stated, or the reference should not be made at all.
23.2.3. Reference to existing provisions just for the purpose of excluding that the new Act interferes with such provisions (as is done by using words like “without prejudice”) should be avoided. Such references indicate contradictions between the Act containing the reference, and the Act to which reference is thus made, and they should be made unnecessary by better circumscribing the applicability of the new Act.

Example A

You should not write:

"Without prejudice to the Crimes Act, a person who violates this section shall be imprisoned for at least 5 years.",

You may rather write:

"A person who violates this section shall be imprisoned for at least 5 years. However, in accordance with section 15 of the Crimes Act, the  court may set that  person free without imprisonment if it is in the interest of justice to do so."
23.3. An Act should not reproduce the provisions of another Act, but should refer to those provisions. In particular, provisions of primary legislation should never be reproduced in secondary legislation.

Example A

When a requirement is stated twice, having been first stated in one Act and then reproduced in another Act, any later effort to change or repeal the requirement may be ambiguous.  For example, if section 12 of the Buy African Act states, "Whenever a government agency purchases a product, it shall give priority to purchasing a product from an African source", and the intent is to create a new government agency (the "New Agency") and specify that the rule also applies to that agency, do not write:
"Whenever the New Agency purchases a product, it shall give priority to purchasing a product from an African source".
You should rather write:
"Whenever the New Agency purchases a product, section 12 of the Buy African Act applies", or
"Section 12 of the Buy African Act applies to the New Agency in the same manner as it applies to any other government agency."

Example B

When Act X established the Government’s obligation to adopt certain measure, you should not write, in a new Act:
With a view to establishing that system in Act X, the Government shall adopt the measures provided for in Articles 3, 4 and 5 of Act X.
You should rather omit the reference.
23.4. References should be used in moderation, because of the principle of transparency. It should be possible to read and understand an Act without consulting other Acts, and the use of references should not affect the comprehensibility of the text.

Commentary:

If an Act is so closely connected to another Act that many references are needed, it may be more appropriate to amend the other Act.
 
Normative References (23-28) Guideline 24
Document Actions