Legislation Amendment Bill

  • discharged on 20 June 2017

Legislation Amendment Bill

Government Bill

213—1

Explanatory note

General policy statement

The policy objectives of this Bill are to—

  • improve the accessibility of the law by re-enacting the Interpretation Act 1999 in the Legislation Act 2012, so the main provisions of New Zealand legislation that are concerned with parliamentary enactments can be found in 1 statute; and

  • improve the interpretation rules from the Interpretation Act 1999 for the courts and the public by addressing (through some small fine-tuning amendments) a few technical issues identified since 1999; and

  • further encourage the production of good legislation by increasing the availability of information about the development and content of new Government initiated legislation in order to inform the parliamentary and public scrutiny of that legislation; and

  • clarify and update the Legislation Act 2012 by making some small related and other amendments, in particular, to take into account the publication of disclosure statements and the legal status of official electronic versions of legislation available online free of charge.

Updating and re-enacting Interpretation Act 1999

The general policy objective is to move the Interpretation Act 1999 into the Legislation Act 2012, which is an Act about legislation in general, to improve accessibility to the principles and rules contained in the Interpretation Act. The Interpretation Act 1999 applies to more than just the interpretation of legislation because it contains standard provisions regarding the commencement and repeal of legislation.

This reform completes the implementation of the Law Commission’s recommendation in its report entitled Presentation of New Zealand Statute Law (NZLC R104, 2008) to bring together in 1 statute all of the provisions about legislation. The Legislation Act 2012 brought forward and combined the law on legislation that was contained in the Acts and Regulations Publication Act 1989, the Regulations (Disallowance) Act 1989, and the Statutes Drafting and Compilation Act 1920.

Part 1 of the Bill inserts a new Part 2A into the Legislation Act 2012 that largely carries forward the Interpretation Act 1999 provisions with several technical improvements and clarifications to address developments identified since 1999.

Disclosure statements for Government initiated legislation

The New Zealand Government has, over time, established a range of expectations for the development of legislation that are intended to support the production of robust Government initiated legislation that also conforms to well-established legal principles. There is no established process, however, that allows members of Parliament, or the public, to readily assess the extent to which the development of a particular piece of legislation has been consistent with those general expectations. There is a concern that some legislation fails to meet these expectations due to a lack of sufficient attention given to the expectations, or to time pressures on the departments that are developing the legislation.

The Bill will insert a new Part 3A into the Legislation Act 2012. The new Part 3A will require the department or departments primarily involved in the development of a piece of Government initiated legislation to make readily available certain information held by the department about the development and content of that legislation. The production and publication of this information is intended to promote greater attention to existing expectations for the development of legislation, and to support more informed parliamentary and public scrutiny of that legislation. Making this a legislative requirement represents a stronger and more public commitment to disclosure than a solely administrative requirement, and allows assurance to be given that the House of Representatives will continue to be consulted about proposed changes to the form and content of the disclosures required.

The Bill makes clear, however, that this information disclosure obligation on departments is not intended to impose conditions or restrictions of any kind on the content of legislation, on the legislative processes of Parliament, or on the ability of the Government to develop legislation.

Minimum disclosure requirements for Government Bills and amendments to Bills

The Bill requires the chief executive of the relevant department(s) to prepare a disclosure statement for most Government Bills, and for most substantive Government amendments to a Bill, and then to publish that disclosure statement online as soon as practicable after the Bill or amendment becomes available. It imposes a set of minimum disclosure requirements on the chief executive in 3 broad areas—

  • useful background material and policy information concerning the legislation; and

  • key quality assurance assessments or processes used to test the robustness of the content of the legislation; and

  • significant or unusual features of the legislation that are likely to warrant careful scrutiny.

Minimum disclosure requirements for disallowable instruments

The chief executive of the relevant department or other entity is also required to prepare and publish a disclosure statement for most disallowable instruments to be drafted by the PCO under section 59(2). The requirement does not apply if the chief executive indicates that there is no relevant information available or that any relevant information has already been published in another disclosure statement. Where a disclosure statement is required for a disallowable instrument, the Bill imposes minimum disclosure requirements in 2 broad areas—

  • useful background material and policy information concerning the legislation; and

  • key quality assurance processes used to test the robustness of the content of the legislation.

House of Representatives to be consulted on any additional disclosure requirements

The Bill also acknowledges that the Minister responsible for new Part 3A may propose administrative requirements for the layout or format of a disclosure statement and for additional information or matters that the chief executive of the relevant department must include in a disclosure statement. Before doing so, however, the Minister must present to the House of Representatives a document that describes the proposal.

Independent review within 5 years

Finally, the Bill requires an independent review of the operation and effectiveness of this new Part of the Legislation Act 2012. The review is to commence within 5 years of new Part 3A coming into force, and the review findings are to be presented to the House and published.

Updating Legislation Act 2012

Part 3 of the Bill makes some related and other small amendments to the Legislation Act 2012 to clarify, for example, that the Parliamentary Counsel Office’s statutory functions include the publication of supporting documents relating to Government Bills, amendments to those Bills, and instruments drafted by the Parliamentary Counsel Office, such as the disclosure statements defined in new Part 3A of the Legislation Act 2012; and to update the way legislation is made available to the public to reflect the way the public are now accessing legislation, particularly in view of the legal status of official electronic versions of legislation available online free of charge.

Departmental disclosure statement

The Parliamentary Counsel Office (in respect of Parts 1 and 3) and the Treasury (in respect of Part 2) are required to prepare a disclosure statement to assist with the scrutiny of this Bill. It provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact statements

The Treasury produced regulatory impact statements on 2 February 2011 and 29 January 2013 to help inform the main policy decisions taken by the Government relating to the disclosure statement requirement proposals in this Bill.

A copy of these regulatory impact statements can be found at—

The regulatory impact requirements do not apply to other proposals in this Bill. The relocation of the Interpretation Act 1999 in the Legislation Act 2012 is a technical “revision” that substantially re-enacts the current law in order to improve legislative clarity and navigability. The other small proposals amending the Legislation Act 2012 are minor technical and non-contentious changes that would be suitable for inclusion in a Statutes Amendment Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 relates to commencement. The following come into force on 1 July 2015 or an earlier date appointed by Order in Council (once necessary preparations have been made for compliance with the new legislated disclosure requirements):

  • Part 2 (disclosure requirements for Government initiated legislation); and

  • clause 15(2) (which amends section 59 to add a further function for the Parliamentary Counsel Office (PCO) relating to the publication of supporting documents relating to legislation); and

  • clause 18 and Schedule 1 (transitional, savings, and related provisions—see also clause 8 in Part 2).

All other provisions (Part 1, and the rest of Part 3) come into force on the day after the date of Royal assent.

Clause 3 identifies the principal Act amended: the Legislation Act 2012.

Part 1Interpretation of legislation

Purposes (new section 3(fa))

Clause 4 amends section 3 (which states the Act’s purposes) to insert a new purpose. New section 3(fa) states the new purpose, which is related to new Part 2A (inserted by clause 6). The new purpose is to replace, with both re-enacted and new provisions, the Interpretation Act 1999 (the 1999 Act, to be repealed by the new section 77(9) that is inserted by clause 17(2)).

Reprints—repealed enactments, etc (section 24)

Clause 5 amends section 24, which authorises specified changes in reprints. But section 24 does not, as section 24(3) indicates, limit the authority to make changes in a reprint in reliance on other enactments, including section 22 (references to repealed enactment) of the 1999 Act. The reference to section 22 of the 1999 Act is replaced with a reference to the following 2 new or corresponding sections (inserted by clause 6):

  • new section 36Q (references to repealing enactment not yet in force):

  • new section 36W (references to repealed enactment).

New Part 2A—Interpretation of legislation

Clause 6 inserts a new Part 2A on interpretation of legislation. New Part 2A replaces, with both re-enacted and new provisions, the Interpretation Act 1999. Most of the replacement provisions (new sections 36A to 36ZP) re-enact, without substantive changes, existing law. This analysis therefore discusses only substantive adjustments to, or replacement provisions without equivalents in, the existing law. Background is given by relevant cross-references to Interpretation Act 1999—A Discussion Paper (Parliamentary Counsel Office, 6 March 2013) (the discussion paper). Nearly every new Part 2A provision has a compare note indicating its 1999 Act (and any Acts Interpretation Act 1924) equivalent or predecessor. New Schedule 2 also compares the existing, and re-enacted and new, provisions (see new section 36ZP, and clause 19 and Schedule 2). If new Part 2A is enacted, the Legislation Act 2012 as amended could be renumbered via a reprint of that Act (if that renumbering is authorised under section 25(1)(b) and (2) of the Legislation Act 2012).

Purposes of new Part 2A

New section 36A(d) is new. It ensures that the purposes of new Part 2A include to replace, with both re-enacted and new provisions, the Interpretation Act 1999.

New Part 2A, like the 1999 Act, contains a number of fundamental interpretation enactments, including new section 36C (ascertaining meaning of legislation). But new Part 2A, like the 1999 Act, does not contain all enactments relating to the interpretation of legislation. (New Part 2A does not contain, for example, section 35 (revision Acts not intended to change effect of law) of the Legislation Act 2012, or section ZA 3(3) to (5) (using old law as interpretation guide) of the Income Tax Act 2007.) New Part 2A therefore operates in parallel with (is not subject to, and does not override) other enactments (for example, section 6 of the New Zealand Bill of Rights Act 1990) that relate to the interpretation of all or particular enactments.

Application (section 4(1) of 1999 Act)

New section 36B relates to the application of new Part 2A.

New section 36B(1) re-enacts section 4(1) of the 1999 Act, but also makes it clearer (as proposed in the discussion paper at [2.1] to [2.7]) that some or all of new Part 2A may be displaced by provisions or context, as noted in Sisters of Mercy (Roman Catholic Diocese of Auckland Trust Board) v Attorney-General (High Court, Auckland, CP219/99, 14 December 2001) at [29] per Randerson J.

Interpretation informed by context (new section 36C(1))

New section 36C(1) differs from section 5(1) of the 1999 Act by requiring an enactment’s meaning to be ascertained from its text in the light of its purpose and in its context. Addition of a reference to context was not proposed in the discussion paper, but is intended only to align the text of this general interpretation direction with, and so not to alter significantly the substance of, existing law and practice.

Section 5(1) of the 1999 Act, contrary to the Law Commission’s recommendation in (NZLC R17, 1990) at pp 31–33 and 121, omitted reference to context. The explanatory note to the Bill for the 1999 Act suggested (at p iii) this omission arose from concern about the imprecision of the term, and concern that reference to it could invite reference to matter leading to “a meaning that might well go beyond the approach of the Courts currently”. The Justice and Electoral Committee’s report on the Bill similarly showed a concern that including context might result in “more liberal interpretation” departing from Parliament’s words and aims.

But the omission, opposed by submissions on that Bill, cannot mean that interpretation is not to be informed by context. “While the reference to context was not enacted”, Glazebrook J observed in Agnew v Pardington [2006] 2 NZLR 520 (CA) at [32], “ ... there is no doubt that the text of a provision must be interpreted having regard to the Act as a whole and the legal system generally.” Hence the courts’ approach under section 5(1) of the 1999 Act, despite the omission, is that interpretation is nonetheless still to be informed by internal and extrinsic context, including parliamentary history. Indeed, “[in] determining purpose”, Tipping J said in Commerce Commission v Fonterra Co-operative Group Ltd [2007] 3 NZLR 767 (SCNZ) at [22], “the Court must obviously have regard to both the immediate and the general legislative context”. Interpretation informed by context is thus now, and has perhaps always been, both orthodox and routine. New section 36C(1) thus requires interpretation to be informed (confirmed or bolstered), but never distorted, by context.

Status of examples (new section 36D)

New section 36D is a standard provision on the status of examples, as proposed in the discussion paper at [2.8] to [2.13]. It is based on section 15AD of the Acts Interpretation Act 1901 (Aust) (as substituted in 2011). It avoids the need to repeat, in Acts and regulations, provisions like section 5 of the Major Events Management Act 2007. Its effect is that examples in legislation will not be exhaustive, and will (if enacted after new section 36D(1)(b) commences) also be capable of extending a provision’s operation.

New section 36D(1)(b) is new. It helps to ensure that a new legislated example illustrating a provision’s operation is properly considered (with other indications in new section 36C(2) and (3)) by making the example able, under the general law, to “condition” the provision’s meaning: Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6 at [87] per Madgwick J. A legislated example can only condition a provision’s meaning if the applicable (general or special) status provision allows the example to do so, and the example is factually relevant: B v The Chief Executive of the Ministry of Social Development [2012] NZHC 3165 (affirmed: [2013] NZCA 410 at [27] to [30]). It is rare for a legislated example to be inconsistent with the provision illustrated but, if they are inconsistent, new section 36D(1)(b) ensures that the example may extend the provision’s operation, if a court interpreting the provision assesses that this outcome is in fact appropriate. The provision will generally prevail, but the example will, even so, have to be considered in coming to that outcome.

Australian experience suggests that it will be exceptional for the example to extend the provision’s operation: Butt & Owners Corporation Units Plan No 1725 (Units Title) [2013] ACAT 17 (extension not reasonably open interpretation); Jakjoy Pty Ltd and Commissioner of Taxation [2013] AATA 526 (purported extension held to in fact confine). It also suggests that, whatever the outcome, it is beneficial for the example to have to be considered. City of Casey - Casey Aquatic & Recreation Centre (Anti-Discrimination) [2012] VCAT 893 was an application for an exemption from the Equal Opportunity Act 2010 (Vict). The Tribunal held that women-only evening swimming sessions were a special measure to promote equality for a particular group, so no exemption was required by the Act for that conduct. Section 12(1) illustrated special measures with the following example: “A swimming pool that is located in an area with a significant Muslim population holds women-only swimming sessions to enable Muslim women who cannot swim in mixed company to use the pool.” The Tribunal gave weight to the Act including conduct of this kind as an example, saying it showed that the Parliament supported measures of this kind and considered that they ought (despite them being discriminatory) to fall outside the Act’s prohibitions.

New examples of the operation of a provision may, of course, be intended to be incapable of affecting that provision’s operation. If so, those new examples will have to be either not legislated with, or legislated with but expressly overridden by, that provision. Status provisions that ensure that legislated examples are overridden by the provisions illustrated include section AA 2(1) of the Income Tax Act 2007 and new section 4AA of the Tax Administration Act 1994 (as those sections are amended or inserted by clause 20 and Schedule 3).

Commencement of legislation (sections 8 to 10 of 1999 Act)

New section 36G(3) is new. It ensures that an Act’s Title and commencement sections come into force (subject to new section 36B(1)) on Royal assent (as proposed in the discussion paper at [2.14] to [2.18]). This avoids the need to expressly provide for their commencement, and confirms their self-executing character. (It also enables an Act’s commencement section to continue to refer to “this Act”, but for that reference to “this Act” to exclude the Act’s Title and commencement sections.) A corresponding new provision is required for enactments other than Acts—see also new section 36H(3) analysed below.

New section 36H(2)(b) indicates, as proposed in the discussion paper at [2.20] to [2.24], the default date of commencement of regulations or enactments in regulations if—

  • the making of the regulations is not (under section 12 of the Legislation Act 2012, or otherwise) notified in the Gazette; and

  • the regulations do not state or provide for the date on which the regulations or enactments in the regulations come into force.

The default date of commencement is the day after the date on which the regulations are otherwise publicly notified. (See also the definition of public notification in new section 36ZD, discussed below.)

New section 36H(3) is new. It ensures that the Title and commencement provisions of regulations come into force (subject to new section 36B(1)) on their making. This avoids the need to expressly provide for commencement, and confirms the self-executing character, of those provisions. (It also enables the regulations’ commencement provision to continue to refer to them as a whole, for example to “these regulations”, but for that reference to exclude their Title and commencement provisions.) A corresponding provision is also required for Acts—see also new section 36G(3) analysed above.

New sections 36I and 36J(4) and (5), about commencement orders, are mainly new.

New section 36I(1)(a) (commencement orders may appoint date that is same day as day orders made) repositions and re-enacts part of section 10(3) of the 1999 Act (the rest is re-enacted in new section 36J(3)).

New sections 36I(1)(b) and 36J(4) and (5) confirm, and make clear the effect of, a commencement order’s appointing a day, and stating a time on that day, for the commencement of an enactment that the order brings into force (as proposed in the discussion paper at [2.25] to [2.30]).

New section 36I(1)(c) provides for any date appointed by a commencement order (an Order in Council bringing into force an Act or an enactment in or made under it) to be changed, so long as the change occurs before the appointed date. It has been necessary to do this very occasionally, and it is considered desirable to confirm the ability to do it (as proposed in the discussion paper at [2.25] to [2.30]).

An example of a very occasional change of an appointed commencement date is the Securities Markets Act Commencement Order 2004 (SR 2004/21). That 2004 order revoked and replaced the Securities Markets Act Commencement Order 2003, in order to change (from 1 March 2004 to 3 May 2004) the date on which subpart 2 of Part 2 of the Securities Markets Act 1988 came into force. (To similar effect, for related regulations, was regulation 3 of the Securities Markets (Disclosure of Relevant Interests by Directors and Officers) Amendment Regulations 2004 (SR 2004/22).)

That example involved facilitating understanding and compliance. The new disclosure rules aimed to ensure that information about directors’ and officers’ holdings in public issuers was up to date and useful to the market. The information was to assist in the monitoring of insider trading and market manipulation and to act as a deterrent to these activities, as the dates of trades could be checked against the dates at which material information entered the public domain. However, some confusion in the market prompted the Government to postpone the commencement of the new regime. In a news media statement issued on 23 February 2004, the acting Commerce Minister, Hon Paul Swain, said: “I’ve become aware of companies and their management who are unsure about the scope of the new requirements. In these circumstances I think it best that we take a period of time to talk further with affected parties so that everyone understands what it is we’re asking of them and to see how we should deal with overseas issuers . . . Despite a full consultation process and publicity about the changes, company managers appear to have been caught a little on the hop, so we are just giving a bit more time”.

New section 36I(2) applies if the commencement order power is to the effect that 1 or more commencement orders may be made appointing different dates for different provisions. New section 36I(2) ensures provisions, for this purpose, includes any 1 or more textual elements, or other indications, provided in the Act or enactment (and, in particular, each of the following:

  • any provision inserted, repealed, or repealed and replaced, by the Act or enactment; and

  • any item, or any part of an item, in any schedule of the Act or enactment).

Power to appoint different dates for different provisions is often necessary or desirable, especially for large and complex amending enactments. It should be, and is, sought and given expressly (as is power, instead or as well, to appoint different dates for different purposes). But a number of recent Acts make clearer the meaning for this purpose of provisions. Examples include section 2(4) of the Search and Surveillance Act 2012, section 2(4) of the Financial Markets Conduct Act 2013, and section 2(3) of the Financial Reporting (Amendments to Other Enactments) Act 2013. New section 36I(2) removes inflexibility in commencing amending enactments, and avoids repeating standard clarifying provisions.

Exercise of powers between passing and commencement of legislation (section 11 of 1999 Act)

New section 36K(1)(e) and (3)(b) are new, but were proposed in the discussion paper at [2.31] to [2.38].

New section 36K(1)(e) makes clear the broad scope of section 11(1)(e) of the 1999 Act. In a 2001 case—New Zealand Employers Federation Inc v National Union of Public Employees [2002] 2 NZLR 54 (CA)—the Court of Appeal discussed whether a power (to register unions) given to the Registrar of Unions by the Employment Relations Act 2000 fell within the authority under section 11(1)(e) to “do any other act or thing for the purposes of an enactment”. The majority considered this power was not necessary or desirable for getting the enactment ready to operate. It was instead an operation of the enactment’s substantive provisions and the registration was void. A dissenting view was that the Registrar’s power did fall within section 11, because that section’s purpose is to have new legislation operating conveniently and effectively from the very beginning. (The court noted the unfortunate consequence of its decision, and commented that it would be for Parliament to determine whether validating legislation should be enacted. Parliament later passed the Employment Relations (Validation of Union Registration and Other Matters) Amendment Act 2001 to validate the registration of unions before the Employment Relations Act 2000 commenced.) To help ensure that enactments can operate conveniently and effectively right from the moment that they commence, new section 36K(1)(e) therefore provides that a power in an enactment to confer or impose on a person a legal position (right, interest, title, immunity, duty, status, or capacity) can be exercised between the enactment’s passing and commencement (but with effect before that commencement only to the limited extent specified in new section 36K(4)).

New section 36K(3)(b) provides, similarly, that a legal position (right, interest, title, immunity, duty, status, or capacity) that would be conferred or imposed by an enactment that is relevant to the power’s exercise and that is not yet in force must be treated as having accrued or been imposed, to enable the power concerned to be exercised during this interim period (between an enactment’s passing and commencement).

New section 36K(1)(e) and (3)(b) will not prevent, and as general default provisions will inform and encourage, the desirable practice of framing and enacting specific provisions that make clear how particular powers are exercisable between legislation’s passing and commencement.

References to repealing enactment not yet in force (new section 36Q)

New section 36Q will facilitate reference to and use of the sections and definitions of a new Act not yet in force, and a seamless transition when that new Act repeals and replaces the old Act. It will also avoid the need to repeat common provisions to this effect (such as sections 369 to 371 of the Property Law Act 2007 and clause 10(3) of the Securities Act (Real Property Developments) Exemption Notice 2007). It was proposed in the discussion paper at [2.39] to [2.42]. New section 36Q is also to be referred to in section 24(3) (on reprints) as amended by clause 5.

Effect of repeal on existing rights and proceedings (section 18 of 1999 Act)

New section 36S(1)(b), to align its wording with new sections 36S(1)(c) and 36T(2)(b), refers to the commencing (not bringing) of proceedings (as defined in new section 36ZD). This change was proposed in the discussion paper at [2.55] to [2.57].

New section 36S(1)(c) provides that the repeal of an enactment does not affect the completion of proceedings commenced or in progress under the enactment. This will apply regardless of the nature of the proceedings (as defined in new section 36ZD). Currently, section 18 of the 1999 Act is limited to proceedings that relate to an existing right, interest, title, immunity, or duty. This change was proposed in the discussion paper at [2.43] to [2.54].

Consequential amendments to regulations under other Acts (new section 36ZB)

New section 36ZB provides that a power to make regulations under one Act (the principal Act) includes a power to make amendments to regulations made under other Acts if the amendments are necessary or desirable as a consequence of the enactment of either or both:

  • the principal Act or any amendment to it:

  • the regulations made under the principal Act or any amendment to them.

This would, for example, enable regulations under the principal Act to amend regulations under other Acts in order to update references to offices or titles changed by the principal Act. New section 36ZB was proposed in the discussion paper at [2.58] to [2.65].

Application of legislation to the Crown (section 27 of 1999 Act)

New section 36ZC makes clearer subordinate legislation’s current status, by providing that no enactment binds the Crown unless—

  • the enactment is the whole or a portion of an Act, and the Act (or another enactment) expressly provides that the Crown is bound by the Act or by the enactment; or

  • the enactment is the whole or a portion of any regulations made under (or made under an enactment made, directly or indirectly, under) an Act, and the Act (or another enactment) expressly provides that the Crown is bound by the Act or by the enactment.

All of new Part 2A (interpretation of legislation) expressly binds the Crown (under section 5 of the Legislation Act 2012). Most subordinate legislation binds the Crown by virtue of its empowering Act expressly (or by necessary implication) doing so. But some Acts also include more specific express provisions (examples include section 153 of the Local Government Act 2002, and section 57 of the Waste Minimisation Act 2008). The discussion paper at [2.66] to [2.70] proposed that section 27 of the 1999 Act be re-enacted reworded to make clearer subordinate legislation’s current status.

Definitions (section 29 of 1999 Act)

New section 36ZD re-enacts, with some changes, section 29 (definitions) of the 1999 Act. Most of the changes were foreshadowed in the discussion paper at [2.71] to [2.82].

The definitions of committed for trial and summary conviction formerly in section 29 of the 1999 Act were on 1 July 2013 repealed by the Criminal Procedure Act 2011 (section 413 and Part 1 of Schedule 3). They are therefore not re-enacted in new section 36ZD.

Proceedings, as used in new sections 36S(1)(b) and (c) and 36T(2)(b), is defined as meaning proceedings (whether civil, criminal, disciplinary, or other, at any stage, and interlocutory or main)—

  • in or before a court or tribunal, or before a person acting judicially; or

  • of a person or body performing administrative functions, investigative functions, or both.

The definition of public notification or public notice in new section 36ZD is extended to include a notice published on a day, or from a time, specified in the notice, and on an Internet site that is administered by or on behalf of the person who must or may publish the notice, and that is, so far as practicable, publicly available free of charge. This change has been refined after consideration of submissions on the discussion paper. In particular, the reference to “on a day, or from a time, specified in the notice” is intended to ensure that any Internet public notification specifies when it was first posted. Without this information the public cannot ascertain when a notice was published (as they can when notices are put in the Gazette or a newspaper).

The definition of regulations in new section 36ZD is reorganised, simplified, and illustrated by some examples. The core definition is all instruments that are, are stated or deemed to be or not to be, or that amend or revoke or replace, either or both legislative instruments or disallowable instruments. The examples ensure existing subcategories (based mainly on form) continue to be “regulations” for interpretation and general purposes.

The definition of repeal in new section 36ZD is extended to include, in relation to an Imperial enactment that is part of the law of New Zealand, a declaration or other provision to the effect that it ceases to be so.

The definition of working day in new section 36ZD is adjusted so as to exclude (generally, not by repeated specific provisions), for any area, conduct, location, or other thing in a province, the day observed as the anniversary of that province. As shown by Guy v Bank of New Zealand [2014] NZHC 445 at [4]-[12] per Associate Judge Bell, working day is often anyway defined in a special way as, for example, in rules 1.3(1) and 31.9(2) of the High Court Rules (see also the Judicature Modernisation Bill (178–1) cl 4 and Schedule 1, rules 1.3(1) and 31.9(2)).

Meaning of words and expressions used in instruments (section 34 of 1999 Act)

New section 36ZK ensures that a word or expression used in an instrument (whether legislative or administrative) made under an enactment has the same meaning as it has from time to time in the enactment under which the instrument is made. This change was proposed in the discussion paper at [2.83] to [2.90].

Time (section 35 of 1999 Act)

New section 36ZL(3) is new. It provides that whenever legislation expresses a period of time as being “within” a specified number of days of a date or event (for example, “within 10 working days after 1 April”), the specified date or the day of the specified event is disregarded and the period begins at the beginning of the next day. This change was proposed in the discussion paper at [2.91] to [2.95].

New section 36ZM is new. It relates to how to calculate periods of months in an enactment passed or made after the commencement of new Part 2A. This issue was identified in the discussion paper (at [3.1] to [3.14]) as an area for further consideration. New section 36ZM follows closely the Acts Interpretation Act 1901 (Aust) (section 2G (as inserted in 2011)). But it refers to months (as defined in new section 36ZD) not calendar months (as defined in the Acts Interpretation Act 1901 (Aust) (section 2B)). It confirms the corresponding date rule currently set out in case law.

Case law relevant to how to calculate periods of months includes Police v Maindonald [1971] NZLR 417 (SC); Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 (HCA); Dodds v Walker [1981] 2 All ER 609 (HL); E J Riley Investments Holdings Ltd v Eurostile Holdings Ltd [1985] 3 All ER 181 (EWCA, Civil Division); R v Perks [1993] 3 NZLR 572 (HC); and Re K [2003] NZFLR 318 (FC). Examples of cases discussing and applying the Acts Interpretation Act 1901 (Aust) (section 2G (as inserted in 2011)) include the following:

  • Sopikiotis v Owners Corporation RP017740 & Anor [2013] FMCA 122 at [20] per Burchardt FM and [2013] FCA 353 at [24] to [31] per Kenny J (bankruptcy notice held to be served within the 6-month period, commencing on the date of issue of the notice, allowed by regulation 4.02A(a) of the Bankruptcy Regulations 1996 (Aust)); and

  • Boyes v Beaumont Care Pty Ltd [2013] FWC 2264 per Senior Deputy President Richards (applicant held not to have been employed for minimum 6-month employment period required by section 382(a) of Fair Work Act 2009 (Aust)).

Periods described in months, while not recommended drafting practice, are even so used widely in legislation, for example, for commencement. Commencement provisions have, under long-standing practice, been drafted based on the corresponding date rule (in case law, but to be confirmed by new section 36ZM). The rule, in summary, is that “a calendar month ends at midnight on the day in the ensuing month immediately preceding the day numerically corresponding to the commencing day”: Police v Maindonald [1971] NZLR 417 at 419 (SC), per MacArthur J. The rule is complex, and some may find it confusing. It is also usually applied in conjunction with provisions of the 1999 Act. Section 35(2) of the 1999 Act (carried forward in new section 36ZL(2)) helps determine the commencing day of a monthly period expressed to start “from” or “after” the date of Royal assent. Section 10(1) of the 1999 Act (carried forward in new section 36J(1)) also applies. It provides that “an enactment comes into force at the beginning of the day on which the enactment comes into force”.

Two examples help to show how to ascertain commencements involving periods of months.

The first example is the often-used wording: “[Specified provisions] come into force on the day 12 months after the date on which this Act receives the Royal assent”. That wording is used in section 2(2) of the Sale and Supply of Alcohol Act 2012. The Act received Royal assent on 18 December 2012. The following diagram shows, in 4 steps, how the corresponding date rule and other applicable law apply in interpreting that wording:

The second example is the different wording: “This Act comes into force on the date immediately after the expiry of the period of 2 months that commences on the day on which this Act receives the Royal assent.” That wording is used in section 2 of the Legal Services Amendment Act 2009. The Act received Royal assent on 17 December 2009. The following diagram shows, in 3 steps, how the corresponding date rule and other applicable law apply in interpreting that wording:

Part 2Disclosure requirements for Government initiated legislation

Clause 7 amends section 3 to insert a new purpose for the principal Act that refers to new disclosure requirements for Government initiated legislation.

Clause 8 inserts new section 4A to provide for transitional, savings, and related provisions set out in new Schedule 1AA.

Clause 9 inserts new Part 3A into the principal Act to provide for disclosure requirements for Government initiated legislation.

New section 57A sets out the purposes of the Part. The purposes are to—

  • better inform parliamentary and public scrutiny of Government initiated legislation and promote good practices for the development of such legislation. This is achieved by improving access to existing background material and available information about Government policy, improving the transparency and understanding of relevant quality assurance processes, and identifying significant or unusual features of Bills that may require more careful scrutiny; and

  • enable the disclosure of this information in a way that is timely, informative, concise, and cost-effective.

New section 57B defines various terms used in the Part. One of the defined terms is Government amendment. This term is defined by reference to the rules and practice of the House of Representatives and is intended to include supplementary order papers in the name of a Minister.

Subpart 1—Disclosure for Government Bills

New section 57C requires the chief executive of the department that is primarily involved in developing a Government Bill to ensure that a disclosure statement is prepared for the Bill. New sections 57E and 57F set out minimum requirements for disclosure.

The requirement to prepare a disclosure statement applies to all Government Bills except for those specified in new section 57D (for example, Imprest Supply Bills, Appropriation Bills, and Statutes Amendment Bills).

New section 57E requires the disclosure statement to—

  • identify reports that have informed the policy:

  • include certain information if the Bill gives effect to an international agreement:

  • identify regulatory impact statements:

  • identify assessments of the Bill relating to the New Zealand Bill of Rights Act 1990:

  • describe the steps taken to assess the consistency of the Bill with New Zealand’s international obligations and the principles of the Treaty of Waitangi:

  • describe the nature and extent of external consultation (for example, on an exposure draft):

  • describe the nature and extent of any testing procedures or techniques (other than consultation) to ensure that the policy is workable and complete (for example, scenario testing or trials using practical examples).

New section 57F requires the disclosure statement to indicate the presence of certain significant or unusual legislative features, including whether the Bill—

  • provides for a compulsory acquisition of private property:

  • affects rights or freedoms, or imposes obligations, retrospectively:

  • creates, amends, or removes offences, penalties, or the jurisdiction of the courts:

  • creates or amends a strict or an absolute liability offence:

  • reverses or modifies the usual burden of proof for an offence or a civil pecuniary penalty proceeding:

  • creates or amends an immunity:

  • creates, amends, or removes provisions relating to privacy:

  • creates or amends a power to make a disallowable instrument (including a Henry VIII power to make a regulation that amends an Act):

  • contains any other provision that is unusual or involves matters that call for special comment.

The disclosure statement must—

  • describe the effect of the relevant provisions and describe any features that limit or mitigate any potential adverse effects of the relevant provisions; or

  • in the case of provisions relating to offences, penalties, jurisdiction, or privacy, describe the nature and extent of the consultation with the Ministry of Justice or the Privacy Commissioner relating to the provisions.

New section 57F(3) requires the relevant chief executive to have regard to legislative guidelines that are identified by an Order in Council made under new section 57R (if any) in considering what disclosures should be made—

  • in relation to provisions that are unusual or involve matters that call for special comment; and

  • when describing any features that limit or mitigate any potential adverse effects of the relevant provisions.

These guidelines may include guidelines issued by the Legislation Advisory Committee (see http://www.pco.parliament.govt.nz/legislation-advisory-committee).

Subpart 2—Disclosure for Government amendments

New section 57G requires a chief executive of the department that is primarily involved in the development of a Government amendment to a Bill (for example, a supplementary order paper) to ensure that a disclosure statement is prepared for the amendment. This does not apply if, for example, it is not reasonably practicable to provide a disclosure statement in a timely manner in order to assist in the parliamentary scrutiny of the Government amendment.

New section 57H requires a disclosure statement for a Government amendment to contain the disclosures required by new section 57E (applied as if references to a Bill were references to the proposed amendments).

New section 57I requires a disclosure statement for a Government amendment to disclose whether the proposed amendments would have materially changed the disclosures for the Bill under new section 57F.

New section 57J requires a chief executive who is relying on a certain exception from providing disclosure to prepare and publish a statement confirming the matters specified in the provision that gives the exception.

Subpart 3—Disclosure for disallowable instruments

New section 57K requires a chief executive of a department or other entity that is primarily involved in developing a disallowable instrument to ensure that a disclosure statement is prepared. The requirement only applies to disallowable instruments that are to be drafted by the PCO under section 59(2) and is subject to the exceptions in new section 57K(3). Under new section 57L, the statement must—

  • identify reports that have informed the policy:

  • include certain information if the instrument gives effect to an international agreement:

  • identify regulatory impact statements:

  • describe the nature and extent of external consultation (for example, on an exposure draft):

  • describe the nature and extent of any testing procedures or techniques (other than consultation) to ensure that the policy is workable and complete (for example, scenario testing or trials using practical examples).

Subpart 4—Consultation and publication

Consultation on disclosure statement proposals

New sections 57M and 57N require the Minister to consult the House of Representatives about proposals—

  • to require disclosure statements to include other information in addition to the minimum statutory requirements set out in new sections 57E, 57F, and 57L:

  • for layout or format requirements for disclosure statements.

These additional requirements would be imposed on departments administratively rather than by the Act.

Disclosure must be made available

New sections 57O to 57Q require—

  • the relevant Minister to present a disclosure statement to the House of Representatives; and

  • the relevant chief executive to ensure that the disclosure statement is published on the Internet.

Subpart 5—Miscellaneous provisions

New section 57R provides for an Order in Council to identify legislative guidelines that chief executives must have regard to under new section 57F(3).

New section 57S provides that nothing in the Part requires the disclosure of information that is not publicly available. Information is publicly available if it would be provided under the Official Information Act 1982 if a request were made for that information.

New section 57T provides that a failure to comply with this Part does not affect any power to make any enactment nor the validity of any enactment.

New section 57U provides for a 5-year review of the operation and effectiveness of the Part.

Part 3Related and other amendments

Clause 10 amends the section 4 definition of legislative instrument by repealing paragraph (d) (about resolutions of the House relating to disallowable instruments). The repeal ensures disallowable instruments resolutions or notices of motion will be published or notified in the Legislative Instrument series only by way of the notices the Clerk of the House of Representatives forwards under section 47(5). This availability fits both with practice to date (see SR 2008/362 and SR 2013/32) and comparable regimes (for example, section 21 of the Epidemic Preparedness Act 2006 and section 35(4) of the National War Memorial Park (Pukeahu) Empowering Act 2012). A related amendment – to section 59(2)(c) – is in clause 15(3).

Clause 11(1) repeals section 6(6), which requires copies and reprints of legislation published under section 6 to include a statement that they are published under the authority of the New Zealand Government. Section 6(6) is repealed with effect as from the commencement (on 5 August 2013) of section 6. This repeal is because that publication statement is no longer (as before 5 August 2013) required or always used to identify official versions of legislation. Official versions of legislation are instead identifiable in accordance with regulations made under section 22. The current regulations under section 22 (namely, the Legislation (Official Versions) Regulations 2013) specify the features that identify official versions of legislation that the Chief Parliamentary Counsel may issue under section 17. Those regulations require an official version of legislation to display or exhibit on its front page a representation of the New Zealand Coat of Arms (with or without the publication statement or a statement identifying the Act under the authority of which the legislation is issued). Clause 11(2) amends section 6 by inserting new subsections (6A) and (6B), which relate to alternative text that is inserted in copies or reprints of legislation published under section 6. The alternative text is inserted after enactment, and editorially, to indicate to certain (for example, to blind) legislation users, in an alternative way, the general effect of a non-textual element (for example, a graphical image such as a crest, map, or medal). New subsection (6A) provides that the alternative text does not form part of the published copies or reprints of legislation. New subsection (6B) ensures new subsection (6A) is not limited by section 25(3), which already makes clear the status of alternative text, but only when it is inserted in official versions of reprinted enactments. Clause 11(3) repeals section 6(8) because it is clear, and unnecessary to declare, that (publication in printed form authorisation or direction) orders under section 6(4) are both legislative instruments and disallowable instruments.

Clause 12 repeals section 7, which requires the Attorney-General to designate places where printed copies of legislation published under section 6 are available for purchase by members of the public. Designation has formerly ensured specified minimum public access to official printed copies, but is now an unnecessary regulatory burden. Public access to legislation is now mainly, and increasingly, access to electronic versions. Further, official electronic versions issued under section 17 must be available free of charge and (so far as practicable) at all times to be accessed at, or downloaded from, an Internet site maintained by or on behalf of the New Zealand Government. Repeal of the designation requirements will not prevent the PCO from continuing to make available (for example, via http://www.legislation.govt.nz and http://www.pco.parliament.govt.nz) information about outlets at which printed copies may be purchased. But many users will produce printed versions directly from official electronic versions, or order printed copies through an Internet site (such as http://www.legislationdirect.co.nz/). See also the related repeal and amendment effected by clauses 13 and 14, and the amendments made by clause 20 and Schedule 3 to section 76C of the Customs and Excise Act 1996 and section 9B of the Tariff Act 1988.

Clause 13 repeals section 8, which requires printed copies of in-force legislation published under section 6 to be made available for purchase at designated outlets, and at a price that must be reasonable, having regard to the actual cost of printing and making the copies available for sale. The repeal of section 8 is in part a consequence of the repeal (by clause 12) of the section 7 requirement to designate places where printed copies of legislation published under section 6 are available for purchase by members of the public. But a legislative constraint on the price of printed copies is also regarded as unnecessary now that official electronic versions issued under section 17 (and from which printed versions may be produced directly) must be available free of charge and (so far as practicable) at all times to be accessed at, or downloaded from, an Internet site maintained by or on behalf of the New Zealand Government.

Clause 14 replaces section 12(2)(e) because of the repeal of sections 7 and 8 (by clauses 12 and 13). Section 12(2)(e) requires every section 12 notice (of the making of legislative instruments) to give, about each legislative instrument listed in the notice, and along with the information specified in section 12(2)(a) to (d) and (f), the designated places at which copies of the legislative instrument may be purchased. New section 12(2)(e) instead requires the notice to include information about ways that copies of the legislative instrument may be accessed or purchased.

Clause 15(1) amends section 59(1)(c), which specifies the PCO’s function of arranging for the printing and publication of Bills and amendments to them. The amendment deletes a cross-reference to Part 2, because the PCO’s section 59(1)(c) function is not one under that Part. Clause 15(2) adds a further function for the PCO relating to arranging for the publication of supporting documents relating to Government Bills, amendments to those Bills, and instruments drafted by the PCO (for example, disclosure statements prepared under new Part 3A). Clause 15(3) ensures the instruments to be drafted by the PCO under section 59(2)(c) exclude notices (of disallowance resolutions or notices of motion) that section 47(5) or another enactment requires the Chief Parliamentary Counsel to arrange to be published under section 6 as if they were legislative instruments. A related amendment – to the section 4 definition of legislative instrument – is in clause 10.

Clause 16 amends section 60, which authorises the Inland Revenue Department to draft and print certain Government Bills. Some of the amendments are to make it clear that the authorisation to supervise the printing of those Bills also extends to supervising their publication. Another repeals section 60(2) because it is clear, and unnecessary to declare, that (Inland Revenue Department drafting authorisation) orders under section 60(1) are both legislative instruments and disallowable instruments.

Clause 17(1) repeals a spent provision (section 77(4)) amending the Interpretation Act 1999. Clause 17(2) inserts a new section 77(9) that repeals the Interpretation Act 1999.

Clause 18 and Schedule 1 insert new Schedule 1AA to provide for transitional, savings, and related provisions in connection with amendments made to the Legislation Act 2012.

Clause 19 inserts a new Schedule 2. New Schedule 2 contains a comparative table (of former, and re-enacted and new, interpretation provisions) referred to in new section 36ZP (inserted by clause 6).

Clause 20 and Schedule 3 amend consequentially references to Interpretation Act 1999 definitions, or other provisions, that have ongoing application and are unrelated to specific repeals or transitions, or that relate to subordinate legislation and are redundant. But references in rules of court to definitions or provisions are not amended, for example, references in rule 1.17(3) of the High Court Rules (see also the Judicature Modernisation Bill (178–1) cl 4 and Schedule 1, rule 1.17(3)), rule 1.16.3 of the District Courts Rules 2009, and (the definition of working day in) rule 2.5(1) of the Māori Land Court Rules 2011.

Clause 20 and Schedule 3 also amend enactments to—

  • update unamended references to the repealed Acts and Regulations Publication Act 1989 and Regulations (Disallowance) Act 1989; and

  • make clearer or adjust drafting functions for certain occupational licensing and other instruments made under Acts.