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• Drafting Amending Laws
• Repeal By Implication
• Textual Amendment
• Consistency Of Structure And Language
• The Title
• References In Amending Laws
• Terminology
• Scheduling Amendments

Appendix B

Drafting Amending Laws

B1 An amending law repeals, alters, or substitutes existing provisions in an enactment, or it incorporates new provisions in the text. Drafting amending laws requires a thorough understanding of both

• the policy, purpose, and substance of the proposed changes, and
• all relevant existing law.

It is important to be aware that an amendment to one enactment may well affect other enactments, and consequential amendments may also be necessary. Many consequential amendments are of only minor importance; others avoid serious inconsistencies.

REPEAL BY IMPLICATION

B2 Amending laws should achieve their purpose explicitly, whether that purpose is to enact additional provisions or to alter existing provisions. Repeal by implication, which occurs if two enactments conflict, means that the enactment which is later in time prevails over the earlier one, which is repealed.

B3 Repeal by implication is undesirable because

• a user of the earlier enactment may be unaware of the existence of the later provision, or
• there may be real doubt whether the two enactments can be reconciled.

TEXTUAL AMENDMENT

B4 The preferred method of amendment in New Zealand is textual or direct amendment. This enables express alterations to be made to an enactment, whether by repeal, alteration, substitution or incorporation of new provisions. It produces a single text capable of being reprinted from time to time. However, it conveys little meaning without reference to the particular enactments being amended, because the text in the amending Bill is limited to that which is actually altered.

B5 There are three ways of helping to overcome this difficulty:

• providing comprehensive explanatory material to accompany the Bill or enactment;
• adding descriptive parenthetic statements to the amending provisions (see para 227); and
• repealing and replacing entire provisions instead of specific insertions, omissions or substitutions of expressions.

B6 The alternative to textual amendment is referential or indirect amendment. This involves a narrative statement in the amending law, which simply declares the effect of the amendment. The texts of the existing and amending laws must then be read together, which can lead to confusion and uncertainty.

CONSISTENCY OF STRUCTURE AND LANGUAGE

B7 A logical, helpful structure is as important—though perhaps not so easy to achieve—in amending legislation as in a principal Act. Textual amendments should be drafted so that they fit harmoniously into the existing structure of the statute.

B8 Note that an amending Act which contains only direct textual amendments to an existing statute is for practical purposes spent immediately after commencement. The amendments become part of the principal statute, which from that time is regarded and interpreted as a whole in its amended form.

B9 The language of amending legislation should also be consistent with that in the existing statute. As a general rule, the choice of words in amending legislation should reflect that in the principal Act:

• If a principal Act refers to the issue of licences, amendments should also refer to the issue and not grant of a licence.
• If a principal Act refers to a specified day, the amending Act should not use date in a similar context.

However, there are three exceptions to this general rule:

• Replace archaic and unnecessarily complex language with plain language equivalents unless that creates inconsistency or uncertainty: see paras 145_179.
• Use gender-neutral language, even if the principal Act does not: see paras 185_189.
• Modernise the expression of such matters as dates and numbers: see paras 260_265.

THE TITLE

B10 The title of an amending Act should reflect the title of the principal Act. Thus an Act amending the Resource Management Act 1991, for example, is entitled the Resource Management Amendment Act 1994. The statement of the year of enactment relates to the amending Act and not the principal Act. A second amendment to the same Act enacted in the same year would be entitled Resource Management Amendment Act (No 2) 1994. If it is known that an enactment will be amended more than once in a year, then the first amendment Act can be entitled (No 1).

B11 An amending Act which amends more than one principal Act, however, requires an appropriate umbrella title. This may or may not indicate the amending nature of the Act. An example of an amending Act with an umbrella title is the Abolition of the Death Penalty Act 1989.

REFERENCES IN AMENDING LAWS

B12 A repeal provision identifies in precise and express terms what is repealed. Vague references such as so much of the Factories Act 1934 as is concerned with steam engines are inexact and of little assistance to the user.

The principal Act

B13 Amending Acts should contain a provision declaring that the Act amended is to be referred to as the principal Act. This avoids the need to refer in each amending provision to the complete title of the amended Act. A separate section early in the amending Act makes the reference explicit:

This Act refers to the Criminal Justice Act 1985 as the principal Act.

Specific provisions

B14 It is best to refer to a provision by number and letter. Using imprecise terms such as preceding, above, or following can cause confusion, particularly if later amendments insert further provisions.

B15 Sections are the most convenient identifiers in Acts; so each section in an amending Act should begin by identifying the section that is being amended, or the section before or after which a new provision is to be inserted.

Examples:

Section 5 of the principal Act is amended by repealing subsection (4).

not The principal Act is amended by repealing subsection (4) of section 5.

Subsection (4) of section 5 of the principal Act is repealed.

(Note that these examples do not use the word hereby before repealed. There is no advantage in using it, and it is archaic.)

After section 5 of the principal Act, the following section is inserted . . .

not The principal Act is amended by inserting the following section after section 5 . . .

B16 The same principle applies to parts:

Part 9 of the principal Act is repealed.
After Part 3 of the principal Act the following Part is inserted.

B17 Complex references are sometimes necessary in amending Acts. An amending provision may, for example, need to refer to particular words in a subparagraph. As a general rule, the most satisfactory order of reference in an amending enactment is from major to minor elements: section, subsection, paragraph, subparagraph. Example:

Section 3 of the principal Act is amended in subsection (5)(b)(iii) by omitting "1982" and substituting "1995".

Specific words

B18 Amending legislation often identifies and inserts or omits particular words. If the words are few, set them out in full:

Section 29(1) of the principal Act is amended by omitting the words "or, where service is effected by an officer of the Court or a sworn or non-sworn member of the Police or a traffic officer within the meaning of the Transport Act 1962,".

B19 If the reference is lengthy, other means of identification may be used:

Section 5 of the principal Act is amended by omitting the words from "court" to the end of the section.
Section 5 of the principal Act is amended by omitting the words from "court" to "the end of each year" inclusive.

B20 If the words identified in an amending provision occur more than once in the provision to be amended, refer to the relevant words by reference to the order of their appearance:

Section 22 of the principal Act is amended by omitting "court" where it first occurs.

Prior amendments

B21 Section 8 of the draft Interpretation Act provides that a reference in an enactment to another enactment is a reference to that other enactment as amended or substituted at that particular time. It is therefore unnecessary for an amending provision to refer to the fact that the enactment to be amended has previously been amended or substituted.

TERMINOLOGY

B22 Amending provisions perform one or more of three functions:

• the removal of existing material;
• the removal of existing material and the substitution of other material in place of the removed material; and
• the inclusion of additional material.

It is important to be consistent in the use of terminology relating to these functions. The following five should suffice: repeal and omit for removal; substitute; and insert or add.

Repeal / omit

B23 Repeal is used to indicate the removal of complete enactments which stand alone. Acts, parts, subparts, schedules, sections and subsections are repealed.

B24 Elements lesser than subsections (ie, paragraphs, subparagraphs, clauses, words, figures and expressions) are omitted.

Repeal / omit and substitute

B25 Material to be removed is repealed or omitted, and the new material which replaces it is substituted. This follows the usage in ss 7 and 8 of the draft Interpretation Act.

Insert or add

B26 New material is inserted, except at the very end of a statute, where it is added.

SCHEDULING AMENDMENTS

B27 Repeal provisions may be included as a subsection of a substantive provision. But if an Act is to contain a number of repeal provisions, they should be presented together. One repeal section may be adequate, perhaps with separate subsections for the repeal of provisions from different statutes.

B28 In more complex cases, however, repeals, along with consequential amendments, are often presented in column form in a schedule. This practice is useful where a large number of similar amendments need to be made to an Act. An example might be an Act which contains numerous penalty sections, each of which is modified by the amending Act.

B29 Scheduled amendments and repeals require a linking section in the body of the enactment which gives effect to the relevant amendments or repeals as scheduled. Examples:

The enactments in Schedule 2 are amended as indicated.
The enactments referred to in Schedule 3 are repealed.

A cross-reference to the linking section appears at the beginning of the schedule.

B30 The schedule then lists the relevant amendments or repeals. An amendment is expressed as follows (under the heading ENACTMENTS AMENDED and the cross-reference to the linking section):

(1988/2) Police Complaints Authority Act 1988
section 33(4)
Omit: "clause 5 of Schedule 1 to the Defamation Act 1954"
Substitute: "clause 3 of Schedule 1, Part 2 to the Defamation Act 1992"

A repeal is expressed more simply (under the heading ENACTMENTS REPEALED and the cross-reference to the linking section):

(1956/107) Electoral Act 1956
section 128

B31 It is better not to allocate consequential amending provisions to a separate Bill. There is no particular advantage in doing so, as the amending provisions will appear in the amended Act in exactly the same form (whether the amendments were brought about by a single Act or several) as in the principal Act. A separate Bill has the added disadvantage that the origin of the amending provisions will become less clear—for instance, by the loss of the relevant title and purpose provisions.