Drafting or reviewing orders, notices, directions – what ever your legislation calls these statutory instruments – is something all regulators will have to do at some stage. There are many reviews, reports and inquiries, even case law which cite or have resulted from poorly drafted statutory instruments.
So how do you get them right?
The first step is to decide if a statutory instrument is required. Could you achieve the same outcome another way? If the answer is that a statutory instrument is required, then you need to ensure it is drafted and served lawfully.
- Choosing the right legal entity to serve it on, and ensuring that it is in fact a legal entity, is essential. A common mistake is serving instruments on business names.
- You need to clearly establish the lawful reason for the exercise of the power. What power you have, and what aspects are being exercised need to clearly outlined in order to exercise the power.
- You need to establish a reasonable and appropriate amount of time for compliance, and provide details of any offence or appeal provisions associated with the instrument.
- Make sure you have the instrument served lawfully. Your legislation will determine what constitutes lawful service. Many investigators prefer personal service or registered post, so there is evidence of receipt.
- Never underestimate the benefits of plain English, white space and headings in your instruments. You want the person to comply, so make it as easy as possible for them to do so.
If you think your team could benefit from some upskilling in this area, please get in touch by emailing contact@acimsolutions.com.au to find out more, or download our brochure.
