New Zealand Law Commission
|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
New Zealand Law Commission |
|
[Database Search] [Name Search] [Previous] [Next] [Download] [Help]
16 Acts are easier to use if their provisions are generally arranged according to a logical order as reflected in practice. The following order is common:
If an Act is divided into parts, all preliminary provisions, such as purpose, definition and application provisions, should be included in a numbered part, Part 1 of the Act, which is headed PRELIMINARY.
17 The presentation of an Act in parts serves two purposes:
18 Parts are numbered and given a descriptive heading. Complex statutes might use an alphanumeric system, as with the Income Tax Act 1994: see also para 253.
19 A part may contain subparts. Subparts also provide useful reference points and are helpful in larger and more complex Acts. They are identified by letter or number and may contain common definitions or purpose provisions.
20 Subparts, too, are numbered and given a descriptive heading.
21 An Act is divided into numbered sections. A section must have a unity of purpose. However, very long sections with numerous subsections—even with a unity of purpose—are difficult to read. Sections must therefore be kept to a manageable length.
22 Each subsection must be relevant to the unifying theme of the section. As a general rule, if a section comprises more than one sentence, present each sentence in a separate numbered subsection. But this rule is not inflexible. Two very closely related thoughts in separate sentences may be presented together in a single section or subsection if that makes communication more effective.
Example:
The applicant must apply within 2 weeks after receiving the notice. However, with the Minister's consent, the applicant may apply at any time after receiving the notice.
Note the use of However to link the two sentences, and at the same time to indicate the contrasting content.
23 Present the primary provision prominently in the first subsection of a section. Subsidiary matters follow. The design of a section should assume that the section will be construed as a unit. The relationship of subsections to one another is generally complementary and obvious. Qualifications and internal cross-references such as subject to the provisions of subsection (1) and in accordance with subsection (1) must be kept to a minimum: see paras 174_177 on the use of subject to.
24 Schedules form part of the Act to which they are attached, and the removal of certain matters to schedules allows the provisions in the body of an Act to be presented more prominently and in a more easily flowing sequence. Schedules can contain secondary, minor material, or material equal in importance to, or of even greater importance than, that in the body of the Act. For a full discussion of the structure and contents of schedules, see paras 109_117.
25 Schedules are presented in a variety of forms. They should feature numbered and headed parts, subparts, clauses and subclauses if their content lends itself to such a structure.
26 Preambles are comparatively rare. They immediately precede the enacting words and contain introductory information. Preambles should not begin with Whereas nor be the general vehicle for stating the purpose of an Act. This is better achieved by a specific purpose clause in the body of the Act: see paras 35_41. Preambles usually recite the events that lead to the Act and can be useful in understanding
27 For example, the beginning of the preamble to the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 states:
(a) By the Treaty of Waitangi the Crown confirms and guarantees to the Chiefs, tribes, and individual Mäori full exclusive and undisturbed possession and te tino rangatiratanga of their fisheries; and
(b) Section 88 (2) of the Fisheries Act 1983 provides that nothing in that Act shall affect any Mäori fishing rights; and
(c) There has been uncertainty and dispute between the Crown and Mäori as to the nature and extent of Mäori fishing rights in the modern context and as to whether they derive from the Treaty or common law or both (such as by customary law or aboriginal title or otherwise) and as to the import of section 88 (2) of the Fisheries Act 1983 and its predecessors; and . . .
28 The recommended standard form is:
The Parliament of New Zealand enacts the Act 199X
29 An Act should have only one title, the function of which is to identify the measure. It appears as part of the enacting statement, is referred to simply as the title, and provides
30 Having both a short and a long title no longer serves any useful function. Acts are invariably referred to not by their long title, but by their short title, and the remaining function of the long title appears to be to explain the general purpose of the Act. This function is better performed by a purpose provision: see paras 35_41.
31 The title must be concise but informative. Choose the first word of a title with particular care because that is the word which must catch the eye of people using indexes.
32 If the scope of an Act is restricted to an identifiable area of a larger topic, it is helpful to begin the title with a reference to the general area and follow it with a parenthetic reference to the particular area. Example:
Family Benefits (Home Ownership) Act 1964
Crimes (Internationally Protected Persons and Hostages) Act 1980
Avoid a string of parenthetic references in a title. That would defeat the object of having a short and convenient label to facilitate reference.
33 The need to be brief does not justify departing from or abbreviating the language of the Act. References to people or bodies must be accurate. The language of the title must be consistent with the content of the Act.
34 The date of the year in which the Act is passed is part of the title. If more than one Act of the same title is passed in the same year, the later Acts should be distinguished numerically:
Finance Act 1990
Finance Act (No 2) 1990
An Act might be referred to as (No 1) if it is anticipated that there will be more than one statute of that name in a year.
See paras A43_A48 for titles of regulations, and paras B10_B11 for titles of amending laws.
35 Purpose provisions help users of legislation to understand the particular Act or part of an Act to which the provisions relate. They are operative provisions of the Act and should be drafted so that they are genuinely helpful.
36 Draft the purpose clause early in the drafting process. Draft specific provisions implementing the purpose of an Act in the light of the purpose clause, not the other way round. Early drafting of the purpose clause helps the drafter keep the objectives of the exercise in mind as the draft is developed. It establishes a benchmark. As the draft develops, specific implementation provisions can reveal a need to review and refine the terms of the purpose provision.
37 Consider carefully how specific the purpose clause needs to be. It may be more appropriate that the clause relates to a particular part in the Act or to a section rather than to the whole Act. Purpose clauses relating to particular parts or particular sections have the advantage of a specific focus.
38 Some examples of purpose provisions:
The purposes of this Act are
(a) to state principles and rules for the interpretation of legislation;
(b) to shorten legislation by avoiding the need for repetition; and
(c) to promote consistency in the language and form of legislation.
The purpose of this Part is to prevent, so far as is reasonably practicable, the detrimental effects of smoking on the health of any person who does not smoke, or who does not wish to smoke, inside any workplace or in certain public enclosed areas.
39 Ensure that there is no conflict between the purpose provision and a later specific provision. Such a conflict is unlikely if the drafter keeps in mind the following general distinction: the purpose clause explains why the law is being enacted; the remainder of the text shows how this purpose will be implemented.
40 Ensure that the purpose provision is not in effect saying how the purposes are to be implemented, as in paragraph (a) of the following example:
The purposes of this Act are
(a) to enable New Zealand to fulfil its obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora by introducing a system of permits and certificates to regulate the import and export of such flora and fauna; and
(b) to promote the management, conservation and protection of endangered, threatened and exploited species; and
(c) to further enhance the survival of those species.
This example might be better drafted:
3 The purposes of this Act are to fulfil New Zealand's obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora; to promote the management, conservation and protection of endangered, threatened and exploited species; and to further enhance their survival.
41 An amending Act might appropriately include a purpose provision in the following situations:
42 A distinction is made between three events:
43 The dates may differ. For instance, many major reforms come into force and take effect months after they become law, while a statute curing an irregularity will apply to or have effect in respect of events which occurred before it became law and came into force.
44 The following paragraphs (45_52) are concerned with the coming into force or commencement of enactments. Express duration (or expiry) provisions and the temporal application or effect are considered in paras 53_57 and 62_77.
Commencement
45 Section 4(1) of the draft Interpretation Act provides that an Act comes into force 28 days after it is assented to, or made (in the case of regulations). Section 4(2) provides that an enactment comes into force at the beginning of the day on which it is to come into force. If either or both of these provisions of general application are not suitable for the commencement of a particular enactment, it is advisable to include a special commencement provision as a separate section. This section immediately follows the enacting statement and purpose provision.
46 A commencement provision may take one of three possible forms:
This Act comes into force on 1 July 1990.
This Act comes into force on a day to be fixed by the Governor-General by Order in Council.
This Act comes into force on the day when the Natural Gas Act 1990 comes into force.
The last form is appropriate only if:
If that Act has two or more commencement dates, the form needs to be modified to refer to a particular provision of the Act. Example:
This Act comes into force on the day when section 3 of the Natural Gas Act 1990 comes into force.
47 Two important considerations apply whichever method is used: first, there must be certainty whether an enactment is or is not in force; secondly, there must be adequate public notice and record of the act or occurrence on which commencement depends.
48 Commencement can be conditional on a specified event occurring. Example:
Part 4 and Parts 6 to 9 come into force on 1 July 1994 if the Chief Electoral Officer declares, under section 19(5) of the Electoral Referendum Act 1993, that the proposal favouring the introduction of the proposed mixed member proportional system is carried.
49 A further possibility is a combination of the first and second methods in para 46: the Act comes into force on a stated day if an Order in Council has not been made by then.
(1) This Act comes into force on a day to be fixed by the Governor-General by Order in Council.
(2) If this Act has not come into force within 1 year after the day when it is assented to, it automatically comes into force on the next day.
Multiple commencement dates
50 Different commencement dates may be necessary for different parts or provisions of an Act. But all commencement provisions in an Act should be gathered in one place. The contrary practice of presenting commencement provisions only in the part or provision to which they relate makes the user's task more difficult than it need be. It is also unhelpful to include a provision such as:
Except as otherwise provided in this Act, this Act comes into force on 1 July 1990.
51 Provision for multiple commencement dates is made by directly stating that different commencement dates apply to different provisions; or, alternatively, by including an empowering provision that allows different days to be fixed for different provisions. Example:
(1) Except as provided in subsection (2), this Act comes into force on 1 February 1995.
(2) Section 12, Parts 3 to 5, sections 56 and 57, and Schedule 1 come into force on a date or dates to be fixed by the Governor-General by Order in Council.
But, in general, multiple commencement dates make an Act less easy to use and should be avoided if at all possible.
52 It may be helpful to supplement the commencement provision with notes to the specific sections or parts of the Act affected, particularly if users are likely to consult such sections or parts in isolation. In addition, a notice under the title of the Act should alert users to the fact that there are multiple commencement dates.
Expiry
53 An Act continues in force until it is repealed or expires; similarly, a regulation continues in force until it is revoked or expires. At any time, an amending Act may be enacted that repeals all or part of a principal Act. However, if Parliament intends from the outset that an Act or a part of it is to be in force only temporarily, include an expiry provision immediately after the commencement provisions.
54 The techniques used for expiry provisions are the same as those used for commencement provisions. An Act may specify a date for expiry, may empower a person or body to fix a date for expiry, or may provide for expiry on the occurrence of a specified event. Provision can be made for all or part of an Act to expire.
55 Provide for expiry in simple terms:
This Act expires on 31 December 1993.
This Act expires 1 year after the day when it comes into force.
Parts 4 and 5 expire on a day which the Governor-General may fix by Order in Council.
The effect of on and after in these provisions is made clear by s 24 of the draft Interpretation Act: a period of time ending on a day includes that day, and accordingly the expiry occurs at the end of that day; and the period beginning after a day does not include that day.
56 Use direct provisions for expiry. Do not use forms like the following:
This Act shall be deemed to be repealed on the expiry of 5 years from the day it commences.
57 If a Bill is to contain an expiry provision, consider the circumstances expected to exist at the time of expiry. On expiry there may be assets, liabilities, continuing functions, activities or consequential matters which require specific savings and transitional provisions to deal with them. Section 6 of the draft Interpretation Act provides that an expiry is to be treated as a repeal so that the general savings provisions in that section apply on the expiry of a statute: see paras 66_68 on savings and transitional provisions; paras 107_108 on repeals and amendments.
58 The preparation of legislation regularly presents four issues concerning the scope of application of the proposed law:
59 Note that the issue of temporal application or effect is distinct from the issues of when the law becomes law (para 42) and when it comes into force or commences (paras 45_52).
60 The spatial issue is distinct from the question of where the law which Parliament is making is to be in force. Currently, Parliament makes law which is to be in force in New Zealand as narrowly defined under s 19(1) of the draft Interpretation Act—although it may apply to events and actions happening elsewhere. But sometimes it makes law which is to be in force in Niue, Tokelau and the Ross Dependency: see paras 128_130.
61 Many statutes expressly address the questions of temporal, personal and spatial application. In the absence of express provisions, the general law applies. That is:
See also paras 42, 69_72.
Temporal application, including savings and transitional provisions
62 Statutes often deal separately with temporal application and with savings and transition. The provisions on temporal application may appear at the beginning of the measure; those on savings and transition usually appear at the end. However, both raise exactly the same set of issues. For this reason, they are considered together here—even if it may be convenient for aspects to be separated in the legislative text.
63 New legislation must frequently have regard to existing situations. For example:
64 The critical principle is that of non-retrospectivity: that rights and duties established under the old law are left unaffected by the new law. The reasons supporting and limiting the principle are effectiveness of the law, justice (as reflected in s 26(1) New Zealand Bill of Rights Act 1990), reasonable expectations, responsibilities of government, and effective administration.
65 More specifically, the reasons supporting non-retrospectivity are as follows:
66 On the other hand, legislation might appropriately apply to earlier situations if:
67 These considerations lie behind ss 6 to 8 of the draft Interpretation Act, which state three propositions:
In the second and third cases the established positions are integrated into the developing body of law, to take account of the need to relate various continuing parts of the law to each other.
68 The importance of these provisions (especially s 6) cannot be overemphasised. In many cases, the general provision will be sufficient and no special savings or transitional provisions need be inserted.
69 Established rights and obligations are often protected, either by the general law (see para 61) or by specific provisions which may be application or savings provisions. A savings provision preserves a law, right, privilege or obligation that would otherwise be abrogated or affected by a change in the law. This example concerns a right to an office:
The person holding office, immediately before the Act comes into force, as an Authority established under the Inland Revenue Department Act 1974, will continue in office as if, at the time of that person's appointment, that person had been appointed as an Authority established under this Act.
70 Application provisions, read as appropriate with or without the general law, have essentially the same effect as savings provisions. Contract statutes provide an example. A new statute might apply only to contracts entered into after the statute comes into force, leaving existing contracts to be governed by the earlier law (eg, wider general principles about non-retrospectivity and the implications of the word only):
3 The provisions of this section apply only to contracts made after this Act is passed.
Alternatively, they might state that they do not apply to contracts entered into before the legislation comes into force, leaving unspoken the proposition that the legislation will apply (only) to contracts entered into after the statute comes into force:
This Act does not apply to contracts entered into before it commences.
(Both of the above methods have the same effect.) Or the statute might apply to all contracts, existing and future, leaving no room for the operation of the general law and overriding the principle against retrospectivity:
This Act applies to every contract, whether made before or after this Act commences.
71 Almost every statute changes the existing body of the law in some manner. Accordingly, the application of the general law or the inclusion of special application, savings or transitional provisions must be considered in every drafting project. Instructing officials may focus on the successful development and refinement of the new policies and provisions, but they and those responsible for the drafting have a duty to ensure attention is given to the immediate impact of the new law on current circumstances and to find out whether special provisions are necessary. The current circumstances include regulations and rules and appointments made under the Act. Particular attention should be given to the consistency of existing delegated legislation with the new Bill.
72 Avoid unnecessary application, savings and transitional provisions. However, specific provisions may be needed when a major new law repeals and replaces an existing one. The developments and refinements contained in the new law may be such that the straightforward application and savings provisions provided in the draft Interpretation Act are insufficient or inappropriate. The Biosecurity Act 1993, with a whole part (Part 10) devoted to savings and transitional provisions, provides a major recent instance.
73 Take care in drafting application and transitional provisions not to refer to the coming into force of this Act if different provisions of the new Act are to come into force at different times. A more specific reference is necessary.
74 The provisions need to be fashioned to fit particular circumstances. The issues may be important ones of policy on which instructions are required. It is necessary to balance the principle that legislation should apply only prospectively against the recognition that the relevant policy and law will change, and that continuing situations will sometimes be adversely affected.
75 If the enactment is to apply to earlier events and actions, an express commencement provision should probably also be included:
This Act comes into force on the day after it receives the Royal Assent.
The reason is that the default period for the commencement of an enactment is 28 days after assent, and the effect of the retrospective application should not be delayed.
76 Some curative (and therefore retrospective) legislation appropriately takes a declaratory form:
Every power conferred on the Governor-General by any enactment is a royal power which is exercisable by him or her on behalf of Her Majesty the Queen, and may accordingly be exercised either by Her Majesty in person or by the Governor-General.
Again, for the reason given in para 75, an express commencement provision should probably be included. Such curative provisions will often save the effect of judgments given or proceedings pending under the old law.
77 Savings and transitional provisions are generally of temporary effect and of little interest after an initial period. They should be assembled and presented as a group. This can be in a separate part at or near the end of the statute. For example, in rewriting the Income Tax Act, subpart Z of each part has been set aside for transitional provisions.
Personal application
78 Provisions in this category define the scope of the legislation more accurately, often by excluding persons or things not intended to be affected:
This Act applies to the trustee companies listed in Schedule 1.
This Act does not apply to the professional practice of a medical practitioner or a physiotherapist.
This Act does not apply to a place that is used as
(a) a restaurant or café, or
(b) a take-away food shop, or
(c) a retail shop located in a public passenger terminal or station.
This Act does not apply to a residential tenancy agreement if the tenant is a party to an agreement for the sale and purchase of the premises.
79 Section 10 of the draft Interpretation Act provides that every enactment binds the Crown unless it provides otherwise or the context otherwise requires. The contrary position should be expressly established as follows:
This Act does not bind the Crown.
If it is intended that only part of an Act will not bind the Crown—for example, provisions creating offences—this should also be expressly stated:
Part 5 of this Act does not bind the Crown.
Territorial application
80 Territorial application raises two separate questions:
The first question is addressed in paras 82_86, and the second in paras 128_130.
81 Sometimes the answers to the two questions will be the same; but increasingly, as Parliament passes law which is in force in the whole of New Zealand and applies to events outside it, the answers will differ. One extreme example illustrates the difference. The Crimes Act 1961 s 92 makes it an offence to commit piracy. That section is in force in New Zealand and nowhere else. But that law, in general, has effect only in respect of actions done outside New Zealand, essentially only on the high seas: see United Nations Convention on the Law of the Sea, article 101.
82 If the legislation is to apply to places or events outside New Zealand, three questions at least should be answered:
83 If there is no explicit provision, the presumption is that legislation applies only to events and persons within New Zealand. The presumption might be rebutted by implication.
84 International law can allow or even require States to enact legislation and to take jurisdiction over activities occurring beyond their borders. Piracy and war crimes provide instances of permissive and obligatory jurisdiction. An increasing array of treaties now governs these matters. Those responsible for proposing legislation should be alert to the possible relevance of these instruments.
85 The extended application of national law, even if permitted (or arguably so), may not be considered desirable in policy terms. Conflicting requirements of different national laws might be applicable to the one transaction. There might be a related need for understandings or agreements with the other countries involved; for instance, by agreements setting out the uniform law applicable to the situation or determining which national law is to apply.
86 The legislation might explicitly state that it applies to areas and activities beyond New Zealand; or that might be a matter of implication. There may, however, be dangers in relying on such an implication. The fact that many statutes do make explicit reference to activities outside New Zealand might support the argument that an Act which is silent about its application to events outside New Zealand does not extend to them. As matters regulated by Parliament become increasingly international or global, the inclusion, or not, of an express provision becomes increasingly necessary. For instance, legislation protecting marine mammals might provide as follows:
This Act applies in respect of
(a) things done in New Zealand or the exclusive economic zone of New Zealand; or
(b) things done on a New Zealand ship or aircraft wherever that ship or aircraft may be; or
(c) things done by a New Zealand citizen outside New Zealand and the New Zealand economic zone in breach of an enactment which gives effect to an international agreement for the protection of marine mammals.
87 Interpretation provisions may be general or specific. General provisions improve the understanding of a whole Act or Acts; specific provisions improve the understanding of individual terms used in all Acts or in particular Acts.
The draft Interpretation Act
88 Interpretation provisions can provide greater consistency in the form and language of the whole statute book. The draft Interpretation Act contains general and specific interpretation provisions which can apply to all statutes: see paras 89_93. The purposes of the Act are set out in s 1 as follows:
(a) to state principles and rules for the interpretation of legislation;
(b) to shorten legislation by avoiding the need for repetition;
(c) to promote consistency in the language and form of legislation.
These purposes can be fully achieved only if drafters are familiar with and make full use of the provisions of the draft Act.
General interpretation provisions
89 Section 9 of the draft Interpretation Act is an example of a general interpretation provision to aid in the interpretation of all statutes:
9 General principle
(1) The meaning of an enactment is to be ascertained from its text in the light of its purpose and in its context.
(2) An enactment applies to circumstances as they arise so far as its text, purpose and context permit.
(3) Among the matters that may be considered in ascertaining the meaning of an enactment are all the indications provided in the enactment as printed or published under the authority of the New Zealand Government.
90 General interpretation provisions may also be included in a particular Act to promote understanding of its provisions and, for instance, their interrelationship. Example:
Relationship between core provisions and other provisions
If there appears to be an inconsistency between a provision in this Part and a provision in another Part, that other provision is to be interpreted having proper regard to the fact that this Part states fundamental principles.
91 The Sale of Goods (United Nations Convention) Act 1994 contains the text of the Convention in a schedule. Article 7 of the text has the general interpretation provision:
(1) In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.
(2) Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.
92 An interpretation provision might also refer the court to the materials arising out of the statute's drafting history:
The material to which an arbitral tribunal or a court may refer in interpreting this Act includes the documents relating to the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985 and originating from the United Nations Commission on International Trade Law, or its working group for the preparation of the Model Law.
Specific interpretation provisions
93 Specific interpretation provisions are of narrow technical effect, and relate to the understanding of concepts referred to in the statute. If such interpretation provisions, other than definitions, are necessary, they should be arranged in a separate clause or clauses.Examples:
A reference in this Act to the time when a purchase price is paid must, where the price is paid by instalments, be taken to be a reference to the time when the first instalment of the purchase price is paid.
If there is any conflict in meaning between the Mäori and the English version of the Preamble, the Mäori version prevails.
94 A definition is used to give a standard meaning to words or phrases that occur frequently in an Act. Use definitions to avoid uncertainty, ambiguity and repetition, but beware of redefining terms which should have a consistent meaning across the statute book, such as registered medical practitioner, as defined in s 2 of the Medical Practitioners Act 1968.
95 The draft Interpretation Act contains definitions of terms such as Act, month, and person, which apply to all other enactments. Such terms should also not generally be given a different meaning in another Act. A definition contained in the Interpretation Act should not be repeated in other enactments, but a note to the sections which feature the relevant terms should refer to it: see para 122.
96 A definition must not contain substantive matter: the user of a statute is entitled to assume that a definitions section contains definitions and nothing else. For example, the conferment of a power should not have to be inferred from the content of the definition, as in:
Commissioner means the Health and Disability Commissioner appointed by the Minister.
The following definition correctly refers to the substantive provision which confers the specific power:
Commissioner means the Health and Disability Commissioner appointed under section 8.
Be particularly cautious about including substantive matter in sections containing definitions which apply only in those sections.
97 A definition may delimit, extend, or restrict the meaning of a term in common usage. If a term does follow common usage closely—for example, High Court—a definition may not be needed. A defined term should, however, follow the usual meaning of the term to the greatest practicable extent, and must not have a stretched or artificial meaning. Within an Act, the overuse of definitions and the creation of different definitions for the same term cause confusion and must if at all possible be avoided.
Delimiting definition
98 The purpose of a delimiting definition is to provide certainty by removing the blurred edges of a term's accepted meaning, to summarise the meaning of a longer expression, or to identify one of several alternative meanings. Examples:
month means calendar month.
reservoir means an artificial lake, pond or basin for the storage, regulation or control of water, silt, debris or liquid-borne material.
In this Act, depending on the context in which the term is used, Bank means either
(a) Bank of New Zealand constituted under the Bank of New Zealand Act 1979, or
(b) that bank deemed to be incorporated and registered as a company by virtue of this Act.
Extending definition
99 The purpose of an extending definition is to add an additional element to the common meaning of a term. Extending definitions are usually introduced by includes:
floating restaurant includes a floating bar, canteen, coffee shop, food store or kitchen.
master includes every person having command or charge of a ship.
Restricting definition
100 The purpose of a restricting definition is to remove some element of the common meaning and often to provide a useful shorthand:
Convention means the United Nations Convention on Contracts for the International Sale of Goods done at Vienna on 11 April 1980.
charge does not include anything described in this Act as a fee.
Minister means the Minister of Labour.
Definition by reference to other statutes
101 Repeat a definition from another statute rather than refer the reader to the provision alone. Exceptions to this rule are
If a definition from another statute is used, include a note of the source, since this may assist in interpretation and in facilitating consequential amendments to it if they are required.
Location of definitions
102 Scattered definitions obstruct a comprehensive understanding of an Act. Definitions are therefore best collected in one place and arranged in alphabetical order early in the Act after the purpose, commencement, and duration provisions. If there are many definitions, however, presenting them early in the Act can detract from the prominence of the major substantive provisions. In such a case it is better to place the definitions in a dictionary, or schedule, at the back of the legislation, with a provision or note early in the Act informing the user where the definitions can be found.
103 If a section contains a word with a particular definition which applies only to that section, the section can include the definition. Beware of confining the application of a definition to a particular section and then using the word in the same sense elsewhere.
104 Any definition not given in the major definitions provision at the front (or back) of the Act should nonetheless be listed alphabetically in that provision, with a reference to the section in which the definition can be found. In other words, an Act must contain a single comprehensive list of the defined terms.
105 Do not introduce a series of definitions with the formula "In this Act . . ., unless the context otherwise requires . . ."; it is sufficient to use the phrase "In this Act . . .". Careful checking of the definitions should ensure that the words defined do have a consistent meaning.
106 At a very late stage of drafting, check that every word defined in the draft is actually used in the draft and is used in the sense stipulated in the definition. Such a check will allow detection of cases where a meaning for a word has been stipulated at an early stage of drafting, and then the word has been omitted or used in a different sense. Check also that words defined in the draft Interpretation Act are used in the sense stipulated in that Act.
107 Generally, repeals and amendments do not affect established rights, transactions or matters that are completed or otherwise closed. This principle is expressed in s 6(2) of the draft Interpretation Act: see para 67. Sometimes, however, this principle is easier to state than apply. If there is doubt, there is a good case for including a specific savings or transitional provision to remove the doubt: see paras 62_77 on temporal application, savings and transitional provisions.
108 A repealing Act does not need to repeal expressly any Act that has amended the principal Act. This is so whether the amending Act makes a textual amendment to the principal Act or not. The fact that it is an amending Act makes it part of the Act. This is confirmed by section 11 of the draft Interpretation Act, which provides:
An amending enactment is to be read as part of the enactment which it amends.
See also appendix B, "Drafting amending laws".
109 Schedules are used to improve readability. The removal of certain minor administrative or technical matters to schedules allows the substantive provisions to be presented more conspicuously. For example, if all the procedural provisions regarding a new statutory body are removed to a schedule, the functions of the body can be stated immediately after the provision creating the body. This helps the user understand the purpose of the statute.
110 The contents of schedules can also be of equal importance to or even greater importance than material in the body of the Act—for example, the text of a convention which the Act implements. Indeed, if an Act adopts the instrument as part of the law, then the schedule becomes the essence of the statute, an example being the Sale of Goods (United Nations Convention) Act 1994. Material may also be placed in schedules for the purposes of reference and information, as in the Biosecurity Act 1993, in which Schedule 1 is devoted to "Matters for consideration in the preparation of proposals for pest management strategies".
111 A schedule falls within the definition of enactment in s 19(1) of the draft Interpretation Act and is, in general, part of the law in the same way as any other provision. Drafting a schedule therefore requires similar care as drafting the body of an Act; and it is important to ensure that there is consistency of wording between the body of the Act and the schedule.
112 A schedule should have a unity of function apparent from its heading, and should be linked to a section in the statute. It is the linking section in the body of the Act that can give the schedule the force of law, and in addition it may provide some explanation of the function and content of the schedule:
The enactments referred to in Schedule 2 are amended as indicated in that schedule.
This Act applies to the trustee companies listed in Schedule 3 and to all other trustee companies registered after this Act comes into force.
Schedules should also be arranged and numbered according to the order in which they are introduced in the Act.
113 There are no fixed rules about what may and what may not be presented in schedules, and material varies considerably from statute to statute. There are certain conventional practices. The following material can often be arranged usefully in schedule form:
114 In the past, a schedule often contained the text of forms to be used in the administration of the statute. The difficulty with this practice is that forms may need alteration or replacement. References in statutes to forms are often better made in less rigid terms. Example:
An application must be made in the form approved by the Commissioner.
115 A user must not be left in any doubt about the contents of a schedule. If necessary, a table of provisions can be included at the front of the schedule. An example is the Sale of Goods (United Nations Convention) Act 1994 which presents the United Nations Convention in a schedule, listing the 101 articles in a table of provisions at the beginning of that schedule.
116 The material within a schedule may be presented in whatever form most effectively communicates the information. Lists, tables, columns, graphs, flowcharts, or any graphic means of communication may be used: see paras 123_127. If items in a schedule are in tabular format, these can be numbered for ease of reference. If the schedule consists of a list of items dealt with in columns, it can be convenient for the first column to be headed Item number and for each item to be numbered sequentially. See paras 243_253 on numbering and lettering conventions.
117 If a schedule is likely to be amended from time to time, it may be helpful to identify its constituent parts by number for ease and precision of reference. If frequent amendments are likely, then it may be appropriate to draft an empowering provision in the main body of the Act that allows the schedule to be amended by Order in Council. However, such a provision should not be included without a clear understanding of its possible consequences.
118 Drafters must never lose an opportunity to make legislation easier to understand. This is primarily a matter of using plain language and drafting clearly: see paras 141_156. However there is room for further developing the use of explanatory material in statutes.
119 The text may be supplemented usefully by explanatory notes (either section notes or endnotes containing defined terms, cross-references, origins of sections and legislative history), flowcharts, comparative tables, graphs, diagrams, formulas, and, in longer Acts, indexes of key words and phrases. This material may or may not be part of the text of the statute itself; for example, tables usually form part of the text while notes do not.
Notes
120 Notes can be placed after each section (referred to as section notes) and at the end of the Act (endnotes). Present these in a consistent manner which makes it clear that they are not part of the text.
121 Consider the practical value of information before including a note. Do not allow a multitude of not very helpful references to some outdated statute to interrupt the flow and interfere with the appearance of an enactment. For example, it may be preferable to present a comparative table at the end of the Act rather than to give a note after every section.
122 Notes can
Tables
123 Tables present data in a more accessible form. For example, a table of comparative references at the end of the statute can be used to refer to the provisions of an enactment which have been replaced or omitted by a new enactment, or on which the later enactment is based.
Flowcharts
124 Flowcharts are used to
125 Flowcharts function most effectively if the specific questions being asked can be answered "yes" or "no". Prime examples are questions of entitlement and liability. Flowcharts are particularly useful to lay users of a statute. The drafter should consider, "What does the user of the Act need to know now?"
126 Points to consider when deciding whether to use flowcharts are:
Other explanatory material
127 Use formulas, diagrams, maps, graphs and pictures when they are the most straightforward way to explain a concept or a calculation. Examples are the use of formulas in tax Acts, and the colour representation of the New Zealand flag in the Flags, Emblems, and Names Protection Act 1981. See paras 239_240 on the style of algebraic formulas in legislation.
128 The general presumption in relation to the territorial force of New Zealand legislation is that it is part of the law of New Zealand in the sense of the islands and territories within the Realm of New Zealand, other than the self-governing State of the Cook Islands, the self-governing State of Niue, Tokelau, and the Ross Dependency. Such legislation might apply to events occurring only in some part of New Zealand or only outside it: see paras 80_86.
129 However, legislation enacted in New Zealand can be in force as part of the law of other places:
(Note that New Zealand can no longer make law which is to be in force in the Cook Islands.)
130 In practice, this issue does not arise very often. In almost all cases, the law enacted by Parliament is in force as part of the law of the principal islands of New Zealand only. But sometimes it will be given a wider or different scope, usually by specific express enactment. Example:
The provisions of this Act are in force as part of the law of Tokelau.
By contrast, many subordinate lawmakers, such as municipal authorities, can make law only for certain geographic areas, or, in the case of the Governor-General in Council or Minister, may have delegated statutory power to choose to do so.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/nzlc/report/R35/R35-THE.html