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Introduction

1 Rules are of the essence of a society. In our society, legal rules and principles affect and govern everyone, and impose restraints and duties on individuals and groups. They also confer and protect rights, benefits and liberties. They are increasingly set out in legislation; that is, they are embodied in laws enacted by Parliament.

2 Laws apply to a broad range of activities:

• they maintain the structure of government (eg, the courts and their jurisdiction, the electoral system);
• they regulate relations between individuals (eg, family law and the law of contract);
• they regulate commercial and industrial activities (eg, occupational safety and employment);
• they provide for and maintain essential services such as health, education and welfare;
• they facilitate business and professional activities (eg, company and partnership law, laws relating to the practice of trades and professions);
• they impose and arrange for the collection of taxes and other government revenue; and
• they create and regulate public institutions.

3 Because society itself is always changing, legislation must reflect that change. A democratic society continues to exist only if the great majority of its members regard the system as generally supporting and protecting their interests.

4 If new laws are to have broad public acceptance and enhance the quality of the statute book, they must

• be developed through an established and adequate process, one that encourages positive and effective participation,
• comply with the legal principles on which our society is based: the rule of law, fairness, individual liberty, protection of personal and property rights,
• be effective and technically sound and fit harmoniously into the fabric of existing laws, and
• be accessible and understandable.

A Legislation Manual for New Zealand

5 Many of the requirements listed in the previous paragraph are already being met in current New Zealand drafting practices. But the Law Commission believes that they would be even better met if all those who are involved in legislative drafting—whether of primary or subordinate legislation—were assisted by a single, comprehensive set of guidelines. For this reason it is issuing a Legislation Manual.

6 The Manual will eventually comprise four parts. The first will deal with the process of enacting legislation, from the development of policy to the Royal Assent. The second is concerned with the structure of legislation; that is, the function and arrangement of its component parts. The third addresses matters of style such as plain language drafting, gender-neutral expression, the use of te reo Mäori, and punctuation. The fourth will consider recurring drafting problems—such as appeal provisions and provisions relating to the setting up of statutory bodies—and suggest standard approaches to them.

7 Only parts two and three are being issued in this publication. The main body of the text, which comprises the two parts entitled "The Structure of Legislation" and "Matters of Style", focuses on Acts but applies to the drafting of legislation in general. Guidelines relating specifically to subordinate legislation and to amending laws are provided in appendices A and B.

8 As to the process of enacting legislation, the Commission has decided that the changes that New Zealand's political system is at present experiencing would make it premature to provide definitive guidelines on process, since they are likely to require considerable modification during the next few years. Users are referred to Report No 6 of the Legislation Advisory Committee, Legislative Change. Guidelines on Process and Content (revised ed, Wellington, December 1991), the Cabinet Office Manual, and the Standing Orders of the House of Representatives. Part four of the Manual is to be produced by instalments.

Users of the Manual

9 It may be helpful to consider who the potential users of the Manual are, for they extend well beyond the obvious groups. In the first place, they will be drafters themselves, whether in the Parliamentary Counsel Office, in government departments or government agencies, or in local bodies, or those from the legislation manual private sector who draft on a contractual basis. Such users would be expected to have a close familiarity with the Manual. But there are also others who might need to consult it in a less detailed way, and who might find it no less valuable. Among these users might be departmental officials and advisers, as well as those who make submissions on legislation, whether professionally or in a private capacity.

Use of interpretation legislation

10 The Law Commission produced its report A New Interpretation Act: To Avoid "Prolixity and Tautology" (NZLC R17) in 1990, in response to a broad reference on legislation from the then Minister of Justice, and to the direction given to it in s 5(1)(d) of the Law Commission Act 1985 to advise on ways of making the law "as understandable and accessible as is practicable". Among other matters, the Ministerial reference had asked the Commission to review the provisions of the Acts Interpretation Act 1924, and the result was a draft Interpretation Act, which is set out in chapter II of that report.

11 The draft Interpretation Act awaits inclusion in the legislative programme. But in anticipation of its enactment, and because the Commission considers that its provisions will encourage better legislative drafting, it has decided to align the Manual with the proposed new Act instead of with the Acts Interpretation Act 1924. This means that reference is frequently made to it, and, further, that any discussion of questions of interpretation occurs in the context of the draft Act: see, for example, paras 88_90.

12 Users of the Manual should accordingly be aware that the present law differs in some respects from that stated in the Manual. The principal difference relates to the position of the Crown. At present, the Crown is not bound by statutes unless they expressly so provide (at least according to s 5(k) of the Acts Interpretation Act 1924). That principle will be reversed, and the Crown, in general, will be bound by statutes unless provision is made to the contrary or the context otherwise requires. Other proposed changes concern

• the default rule for the coming into force of enactments—after 28 days instead of at once (see paras 45, 75, A46 of the Manual, s 4 of the draft Interpretation Act, and ss 10, 10a and 11 of the Acts Interpretation Act 1924),
• the rules about the prospective application of law which will now be more comprehensive (see paras 62_77, ss 6_8 of the draft Act, and ss 18, 20, 20a, 21 and 22 of the 1924 Act),
• the time that instruments executed by the Governor-General come into force (see s 15 of the draft Act, and s 23(3) of the 1924 Act), and
• the dictionary set out in s 19 of the draft Act.

Of course, it may also be the case that when the new legislation is enacted, it will differ from that proposed in the 1990 report.

Format

13 There is one area relevant to legislative drafting which the Manual does not feature in any detail: the format of legislation, specifically its visual aspect, the way in which the text is set out on the page, and the typeface. The reason is not that format is unimportant—it has a major impact on the accessibility of legislation—but that it is the subject of an earlier Law Commission report: NZLC R27, The Format of Legislation (1993). Readers who are interested in the layout of legislation should refer to that report. However, because it is not always possible to separate strict drafting matters from matters of format, there is inevitably some overlap between the Format report and the Manual: see, for example, paras 120_127, 211.

Departures from current New Zealand drafting practice

14 Much of this Manual is descriptive; that is, it is based on the practice developed in the New Zealand statute book. However, in limited respects it recommends departures from the current practice. These departures derive largely—but not exclusively—from recommendations already made in the Commission's reports A New Interpretation Act and The Format of Legislation. The more important of them are the following:

• the wording of the enacting statement (para 28);
• definitions provisions (paras 94_106 and 208_211);
• the addition of footnotes to sections featuring, amongst other matters, references to defined terms (paras 120_122, 211);
• table of provisions (paras 196_199);
• subsection headings (para 204);
• the wording of the empowering provision for regulations (para A7);
• titles of instruments amending regulations (para A47); and
• the manner of scheduling amendments (para B30).

Note on examples

15 Examples are indispensable in a publication of this kind. But finding suitable examples is not always easy. Even examples of a recommended practice might be embedded in a context which is inappropriate. In its use of examples the Commission has adopted the following policy:

• examples derived from New Zealand legislation are used wherever possible, because they provide a more meaningful context;
• positive [3] examples are redrafted according to the guidelines recommended in this Manual;
• negative [8] examples remain as they are, but are clearly indicated as such; and
• because many examples have been redrafted, sources are not normally given.