[10.1] Australia has nine legislatures1 that between them produce a vast mass of written law each year.2 This chapter focuses on legislative drafting, on how legislative drafting work is carried out within government and on the specialist lawyers who perform that work for government. In presenting a draft to their instructors in response to a set of drafting instructions, these lawyers provide legal advice that the draft is consistent with those instructions and gives legal effect to them. The style of drafting used by these lawyers in their work has evolved over time, with a plain language style now preferred. While there is a common commitment to plain language drafting, particular drafting practices and techniques vary from jurisdiction to jurisdiction within Australia, presenting a challenge to the enactment of uniform legislation.

[11.1] This chapter examines how Acts are made. The procedure for that (enactment procedure) is traced from the introduction of a legislative proposal (a Bill) into Parliament through to the conversion of that Bill into an Act.

[6.1] Statutory interpretation is to be ‘text-based’. ‘The text’ here refers to the words whose meaning or effect is in issue. Rooted in constitutional principles, consideration of the text is the starting point of the interpretative process. The text supplies the basis for ascertaining the ordinary or grammatical meaning and similar meanings. In turn, that supplies a presumptive and weighty meaning. After having been read in context, the text is also the ending point of the interpretative process. It is where meaning is ultimately held to ‘reside’. But, for an interpreter, the text is not limiting in the sense that he or she must choose between its grammatical or semantic possibilities, read in isolation. The paramount object remains to give effect to the intention of Parliament.

[3.1] The constitutional framework of legislation, federal and state, is relevant to statutory interpretation in various ways. At its most general level, the framework identifies the source of interpretative law for legislation. Further, three fundamental constitutional concepts – the separation of powers, the rule of law and parliamentary supremacy – both influence and provide a foundation for statutory interpretation law. Although these concepts are complex, and the subject of considerable discourse in constitutional law, it is important to understand their basic characteristics as a backdrop to the more detailed examination of statutory interpretation law that follows in this book.

A competent interpreter needs to have more than a knowledge of basic principles (Parts I and II) and interpretative approaches (Parts IV–VIII). An interpreter needs a broader knowledge about legislation. Part III is concerned with equipping the reader in this regard. Specifically, the focus of Part III is on the development, drafting, enactment and commencement of legislation and on how, through that process, sources of doubt can emerge.

This chapter discusses the development of risk-based approaches to regulating fisheries in marine protected areas. England has adopted a matrix that divides European Marine Sites into red, amber, green and blue based on the risk degree of gear/(sub)feature interactions. Applying the logic of risk-based regulation has meant that the enclosure of fisheries has been partial, and this is a welcome step towards a proportionate response, but it runs the risks of not being sufficiently precautionary to comply with the interpretation of article 6(3) of the Habitats Directive under retained case law. Besides, risk-based regulation is not without its critics and even in this case certain shortcomings are apparent. In reviewing the English revised approach, the chapter pays attention also to the actors involved and the knowledges accepted as evidence in developing and implementing the approach and in doing so it also taps into debates of commoning, asking whether the revised approach has facilitated collective problem-solving and epistemic inclusivity.

This chapter focuses on the process of designation of MCZs in English waters at the basis of MCZs designation. The designation of MCZs is a very interesting case to study attempts at democratising conservation regulation as it has contemplated extensive participation. Departing from the technocratic and purely science-based approach to site selection typical of domestic and European nature conservation law, socio-economic considerations and participatory techniques have been key elements of the designation process of MCZs in England from the start. However, a critical reading of the participatory approach reveals certain weaknesses, mainly to do with the choice of an aggregative rather than a deliberative model of democracy. Advocating for a relational ontology and epistemology, the chapter ends with a call for bringing forth new, ‘thicker’ models of participation that are more attentive to multiple forms of communication and identities and more conducive to commoning practices.

This chapter provides a critical reading of the current efforts to conserve marine biodiversity in a changing climate. The relationship between conservation and climate change is a complicated one due to the multiple entanglements between human and more-than human elements. This chapter discusses the extent to which the existing legal framework, presented in Chapter 2, promotes adaptative governance to conserve biodiversity in a changing climate and whether management practice follows suit. The doctrinal reading of the law is complemented by empirical insights gained through interviews with SNCBs and environmental NGOs as well as documentary analysis of key policies on implementation measures. It is argued that if the law provides for adaptive governance, its implementation in practice, that is adaptive management, is more problematic.

This chapter brings together the main threads of the book, reflecting on the role of English marine protected areas and the extent to which they are sites for commoning or uncommoning and the extent to which they support the conservation of common-pool resources. It also offers broader critical observations on the way English marine protected areas law and regulation construct the relationship between nature and society.

This initial chapter introduces marine protected areas as the preferred tool of marine conservation law and the four main themes around which the monograph is organised, namely space, rationality, democracy and adaptation. The methodology used for the study is also introduced and the structure of the book explained and summarised.

The chapter starts by highlighting the role of international legal and policy drivers on domestic conservation law. In a post-Brexit world, the role of international law is bound to become even more significant, hence the fact that the UK is a party to many multilateral environmental agreements setting out conservation obligations is significant. The chapter then moves to the legal regime for the protection of marine biodiversity in England, starting with an introduction into the regulatory bodies and then focusing on the two main legal instruments for the designation and management of marine protected areas: the Habitats Regulations 2017, as amended and the Marine and Coastal Access Act 2009, offering a comparison between the two in terms of designation and management provisions. Finally, a note on key implementation challenges is offered. The legal map presented is framed using the conceptual categories of new commons and enclosures defined in Chapter 1.