Guideline 28
Care should be used when an Act makes reference to a document that is not legally binding.
| 28.1. | If the content of a document that is not legally binding (such as a technical standard) is to be made legally binding, that content should expressly be included as part of an Act, possibly as an integral-part-annex to it. In particular, this applies to technical standards (often drawn up by standardisation bodies). | |
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Commentary: In some jurisdictions, it may be useful for reasons of parliamentary expedience (such as during an end-of-session emergency) to pass a single new Act that enacts, by reference, the contents of a series of other bills. While it would be better to rewrite the new Act to incorporate all the contents of those bills into the new Act, that may not be practical in some circumstances. Rather than simply refer to the other bills by name in the new Act, the drafter should consider providing an annex that includes accurate copies of the bills. This ensures that the bills that have been enacted by reference are actually published in a form that will be printed for immediate public use and will be available for future use. |
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| 28.2. | If it is too onerous to expressly include such content as part of the Act (such as with a lengthy description of the conduct of laboratory tests), the Act may instead make reference to the document and require compliance with it. | |
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Example A If such a reference is to be made, it should be as precise and accurate as possible (with respect to the content, and also with respect to the date or version of the content), and to a source publication that is widely available and likely to continue to be preserved into the future, such as in libraries. For example, "The builder of a government building shall comply with articles I, II, and IV of the Building Code of the International Building Code Advisory Group, dated January 1, 1993 (as published in the Journal of International Building Codes, volume 23, page 91 (1994))." ‘The tar, nicotine and carbon monoxide yields referred to in Article 3(1), (2) and (3), which must be indicated on cigarette packets, shall be measured on the basis of ISO methods 4387 for tar, 10315 for nicotine, and 8454 for carbon monoxide. |
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| 28.3. | Reference to a document that is not legally binding can be made static, by indicating the version of the document which is referred to. This should be clearly specified using an unambiguous formula such as ”in the version of ….”. | |
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Example A For example, the Legislation Standards Act might provide, "The parliamentary drafters shall take care to ensure, wherever practicable, that all parliamentary bills are drafted consistent with the Legislative Drafting Guidelines for Africa (in the version of June 2006)." |
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| 28.4. | Nevertheless, if control is to be retained over the text of the document, this text should be reproduced within the Act. When the document is reproduced only partially within the Act, it is often still useful to maintain the document’s structure, with certain points or passages left blank, with an explanation in a footnote if necessary. | |
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Example A If the intent of the Act is to require compliance with sections 92, 133, and 187 of a document, it may be useful to reproduce only those sections. If so, the Act should clearly indicate that the sections do not represent the entire document but only the relevant parts of the document. For example: |
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