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Report of the Chief Parliamentary Counsel on the Review of Subpart 3 of Part 2 of the Legislation Act 2012

Presented to the House of Representatives under section 36 of the Legislation Act 2012

March 2021

PDF version (1MB)

Contents

Executive summary
Recommendations
Introduction
Problem: Untidy presentation of Acts impedes access to the law
   Law Commission recommended revision to improve access to the law
How effective is the revision process?
   Revision programmes over the review period
      Contract and Commercial Law Act 2017
      Partnership Law Act 2019
      Land Valuation Proceedings Bill
      Civil Liability Legislation Bill
      Parliament Bill
   Resourcing issues
      Departmental involvement
   Funding and costs
   Prioritisation of revision work
Limitations of revision powers and process
   Limited power to make changes
   Making plain language changes
   Avoiding inadvertent change
   Incorporating modern drafting concepts
   Timing
   Selecting Acts for revision programmes
   Moving isolated provisions into a “non-revision” Act
   Revisions and subsequent reform
   Certification before introduction
   Streamlined parliamentary process
   Select committee process
   Committee of the whole House
   Changes to Standing Orders
Is there still a problem or have developments changed the nature of the problem?
   Stewardship
Is revision the best way to address the problem?
Should subpart 3 be amended?
Recommendations
Appendix 1: Revision process and powers
   Preparing revision programmes
      Public consultation on revision programmes
   Preparing revision Bills for introduction
      Revision Bills differ from usual Government Bills
   Drafting revision Bills
   Departmental checking
   Public consultation
   Revision certification before introduction
   BORA vetting
   Streamlined parliamentary process
   Interpretation of revision Acts
Appendix 2: Bills on the revision programmes 2015–2017 and 2018–2020

Executive summary

The Chief Parliamentary Counsel is required to report on the operation and effectiveness of the revision Bill requirements under the Legislation Act 2012. To date, there have been 2 programmes of revision Bills (2015 to 2017 and 2018 to 2020). This report sets out my findings and recommendations for change.

The purpose of revision Bills is to improve access to the law by keeping our Acts up to date in language and form, without changing the substance of the law. This enables people to more easily find, understand, and apply the law.

The revision process involves the Parliamentary Counsel Office (the PCO) and departments working together on revision Bills. Departments have a stewardship responsibility to maintain the currency of their legislation, while the PCO has a broader stewardship responsibility for the quality of New Zealand’s legislation as a whole.

The requirement to have a programme of revision Bills for each new Parliament enables the Government to prioritise those Acts that need modernising but would not normally get legislative attention.

The experience of the first 2 programmes, under which 13 Acts have been updated, is that the revision process is lengthy and slow. Limitations of the revision powers and process, and other government policy and legislative priorities, affect the level of departmental support. Accordingly, I propose some changes to improve the powers and process.

Recommendations

I recommend amendments to:

  • broaden the revision powers to permit limited, uncontroversial policy and technical changes;
  • replace the strict “no change in legal effect” certification test with a test about whether the certifiers are reasonably satisfied that the changes to legal effect have been properly identified in a revision Bill;
  • expand the Chief Parliamentary Counsel’s duty to prepare a revision Bill and provide it to the certifiers for certification to include a duty to identify for the certifiers any changes to legal effect; and
  • clarify that revised provisions can be moved into an ordinary “non-revision” Act. In that case, the interpretation rule for revision Bills (that a provision is not intended to change the law unless expressly provided) would apply only to the revised provisions. They would be clearly identified.

Introduction

The Chief Parliamentary Counsel is required by section 36 of the Legislation Act 2012 to prepare a report as soon as practicable after the end of the 6-year period ending on 30 June 2020 (the review period) on:

  • the need for subpart 3 of Part 2 of the Legislation Act 2012 (subpart 3);
  • subpart 3’s operation and effectiveness; and
  • whether any amendments to subpart 3 are necessary or desirable.

The report discusses the problem that the revision requirements in subpart 3 was intended to address and how well subpart 3 has been working over the past 6 years. It covers the issues that affect subpart 3’s operation and effectiveness and considers whether revision is the best way to address the problem. The report also considers whether subpart 3 should be amended to improve the current process.

Appendix 1 contains information about the revision process and powers. Appendix 2 lists the Bills on the 2 revision programmes to date and comments on their progress.

Problem: Untidy presentation of Acts impedes access to the law

A basic principle of the New Zealand legal system is that the law must be accessible so that people know what the law is. Acts of Parliament have to be clearly expressed and navigable so that people can easily find, understand, and apply the law.

In 2008, the Law Commission reviewed the presentation of legislation in New Zealand and found that Acts, as a whole, lack coherence and are in an untidy state1. The Law Commission was concerned that many Acts are old or heavily amended, and the condition of those Acts makes it difficult for people to know the full extent of their rights and obligations.

The Law Commission said our Acts contain archaic and confusing language and format, obsolete or inconsistent provisions, mixed drafting styles, and related provisions scattered across several Acts, and lack modern interpretation aids.

It noted a report by the Law Reform Commission of Victoria2, which found that untidiness and obscurity in legislation are likely to add to the costs of providing legal advice about rights and obligations to government, business, and the public generally. The report cited research that suggested that legislation drafted in plain English could result in considerable cost savings for lawyers and the community. Test groups of lawyers and law students applied traditional and plain English versions of commercial provisions to hypothetical cases. The accuracy of their answers did not differ greatly, but the plain English provisions took less time to comprehend (between one-third and one-half of the participants’ average time) indicating potential time and cost savings.

The Law Commission considered that many New Zealand Acts need updating. There are now over 1,000 principal public Acts available free online on the New Zealand Legislation website. Of those, about 302 were enacted between 1908 and 1970. About 30 were enacted in 1908 during the last comprehensive revision of Acts.

Before 2012, there was no express requirement for the PCO, or for administering departments, to improve the presentation and accessibility of Acts. Since 1908, Acts have generally only been revised on an individual basis as part of a larger policy exercise.

Law Commission recommended revision to improve access to the law

The Law Commission recommended that the PCO undertake a triennial programme of revision to make Acts more accessible, readable, and easier to understand without changing their substance. Because of the large number of Acts in force, the Law Commission recommended a methodical, staged approach to revision, with the aim of eventually revising all Acts that need it.

Subpart 3 implemented the Law Commission’s recommendation. Its purpose is to re-enact, in an up-to-date and accessible form, the law previously contained in all or part of 1 or more Acts. But, except as authorised by subpart 3, revision is not intended to change the effect of a law.

The process and powers are explained in Appendix 1.

Subpart 3 has been carried forward with modifications in the Legislation Act 2019, which, when it is brought into force, will replace the Legislation Act 2012. This is expected to happen during 2021. The New Zealand Productivity Commission noted in 20143 that the 3-year revision programme is promising in terms of its ability to make the law more accessible and intelligible.

How effective is the revision process?

Revision programmes over the review period

The Government presented 2 revision programmes to Parliament over the review period. The first revision programme (2015‒2017), for the 51st Parliament, contained 7 revision Bills revising and consolidating 18 Acts. One Bill was passed, now the Contract and Commercial Law Act 2017. It modernises and consolidates 12 contract and commercial Acts, including a small Act that was added to the Bill at the select committee stage.

The second revision programme (2018‒2020), for the 52nd Parliament, contained 10 revision Bills revising and consolidating 27 Acts. One Bill was passed, now the Partnership Law Act 2019, which revised and replaced the Partnership Act 1908.

The Law Commission expected that several revised Acts would be enacted each year. So far, the 2 revision Acts have modernised 13 Acts, resulting in the law they embodied being presented more coherently. Two revision Bills, the Land Valuation Proceedings Bill and the Civil Liability Legislation Bill, are fairly advanced. The Parliament Bill will not be continued under the next revision programme but it highlights an ancillary benefit of the revision programme (see below).

Contract and Commercial Law Act 2017

The Contract and Commercial Law Act 2017 Act is a notable success of the revision process. It has made general contract and commercial law more accessible, readable, and easier to understand, and reduces costs for individuals and small businesses. A major law firm described the Act as a “greatest hits” album – “a compilation of old tracks, digitally remastered for modern day application”.

The Act won the WriteMark Best Plain English Legal Document award in 2017. The judging panel said: “The revised Act is a great step forward in New Zealand for plain English legislation. And the intended audience has a much clearer picture of contractual law in New Zealand."

Recent Court of Appeal decisions and a Supreme Court decision4 applying the contractual remedy, termination, and damages for misrepresentation provisions do not appear to identify any issues related to the revised wording.

A 2017 legal article5 noted that contract and commercial laws underpin this country’s commerce, and concern transactions entered into by the thousands every day. It noted that interpretation will involve “summoning the ghosts of legislation past” and “knowledge of earlier statutes and reasons for them will stay a core part of legal education and practice”. The writer hopes the Act will become a catalyst for more thorough analysis and refinement of the law.

Partnership Law Act 2019

The Partnership Law Act 2019 revised and replaced the Partnership Act 1908. The new Act came into force on 21 April 2020. It applies to 64,400 unincorporated partnerships that filed GST returns for the year ending 31 March 2020, and also to an unknown number of non-GST-registered unincorporated partnerships. As well as using plain language techniques to modernise the legislation, the new Act includes 10 minor amendments that clarify Parliament’s intent and reconcile inconsistencies.

Land Valuation Proceedings Bill

The Land Valuation Proceedings Bill is fairly advanced and being finalised for the certification stage before introduction.

Civil Liability Legislation Bill

The Civil Liability Legislation Bill (revising 2 old Law Reform Acts) is currently being reviewed by the Ministry of Justice.

Parliament Bill

The Parliament Bill was proposed to consolidate the parliamentary Acts that are a foundational part of New Zealand’s constitutional framework. This Bill will not be continued under the next revision programme (2021–2023) because substantive issues with the existing legislation cannot be resolved by a revision Bill.

However, having the Bill on the programme has been a useful exercise as it has enabled agencies to consider how the legislative framework for Parliament could be improved. The work done to date will be the basis of a Bill that modernises the legislation and potentially consolidates it, and makes valuable policy amendments to improve accessibility and ensure that Acts are fit for purpose.

Appendix 2 contains a list of the Bills and comments on their progress.

The 13 Acts that have been re-enacted under subpart 3, in an up-to-date and accessible form without changing substantive legal effect, have improved access to the law. They have achieved the purpose of subpart 3. Nevertheless, the progress of the revision work is affected by resourcing issues, the prioritisation of revision work, and the length of the revision process.

Resourcing issues

The size of a revision programme and the progress of Bills on the programme are subject to the resourcing constraints of the PCO and departments.

When the PCO prepares a programme, departments may not agree to their Acts being included. Other work priorities often compete for their resources or the Acts have policy issues that need substantive amendment.

The staffing requirements for each revision Bill will differ according to a Bill’s size and complexity. However, the minimum PCO staff who are required include:

  • a drafter and peer reviewer;
  • a legislation analyst who prepares the relevant papers to accompany a Bill (explanatory material, submissions analysis, and parliamentary papers for the select committee stage) and also papers for the certifiers;
  • legislation services staff to proofread a Bill; and
  • publications staff to publish various versions of a Bill.

The PCO needs to prioritise the Government’s work programme and, while a revision Bill is being drafted, drafting resources are often diverted to other substantive, and more urgent, Government Bills.

Departmental involvement

The involvement of departments is less than that normally required when developing legislative policy changes. However, it can still be significant. Based on the first 2 revision Acts and the drafting of other revision Bills, this process can involve between 2 and 3 officials from each department. Their input may lessen after a Bill has been introduced, but this varies in each case. Other competing priorities will affect the timing and level of their engagement. Departments may be unable to commit the required time and resources. Staff turnover also may affect departmental input into revision.

To undertake revision work, the PCO needs to work closely with administering departments and other departments that have a strong policy interest. They have the policy knowledge and expertise and will usually administer the future revision Acts. Departmental officials need to carefully check that there are no inadvertent changes to the law and answer questions about how the legislation works in practice. Often, complex research is required to ascertain the correct legal position so that it can be preserved.

The PCO manages the certification process and, with departments, provides support during it. After a Bill’s introduction, the PCO’s support, and to a lesser extent the departments’, is required at the select committee stage. During all these stages, changes may be made to a Bill that require input from departments.

Funding and costs

The Law Commission in its 2007 issues paper6 said that the PCO would need to be augmented and adequately funded for the task of revision, which would obviously require time and resources and considerable skill. However, the PCO’s revision work is currently funded from within the PCO’s baseline appropriation. More dedicated resources would expedite the process.

The 2010 regulatory impact analysis for the Legislation Bill noted that it was not possible to quantify with any precision the costs associated with a revision programme because the costs depend on the size and nature of the programme.

The PCO estimated then that a programme of 3 or 4 Bills per year would amount to approximately $220,000 in additional costs to the PCO and some small associated costs to departments. After having some experience now of drafting these Bills, the PCO is able to estimate the costs more accurately and considers a better estimate would be closer to $350,000. The cost to departments can be significant, which may impact on their support for the programme.

Additional, dedicated funding for 1 full-time advanced counsel, 1 full-time policy staff member, plus all the other PCO costs (peer review, proofreading, and publication), could improve the pace of this work. However, this would not address the issue of prioritisation.

Prioritisation of revision work

The 3-year programme is intended to enable the Government to prioritise the Acts that need revision, subject to resourcing. Progress is significantly affected by the Government’s other policy and legislative priorities.

Drafting resources and departmental resources are often diverted to other substantive or urgent work. Generally speaking, departments will place a lower priority on improving the accessibility of their Acts if there are no substantive gains and there are competing priorities.

Limitations of revision powers and process

Revising Acts may appear to be a simple, straightforward, tidying-up exercise of putting old words into plain language, inserting modern interpretation aids, logically rearranging and sometimes consolidating provisions, and removing obsolete ones.

However, working on the first 2 revision programmes has highlighted some challenges arising from the limited revision powers that ensure that the PCO and departments do not make substantive changes to the law.

For most of the review period, the power to make even minor amendments was strictly limited to clarifying Parliament’s intent, reconciling inconsistencies between provisions, and updating certain monetary amounts in line with inflation. The power was expanded in 2019 to allow minor amendments to resolve ambiguities and to update the law in a way that takes account of changes in technology.

Limited power to make changes

The Law Commission’s 1993 report Contract Statutes Review7 recommended several technical and uncontroversial amendments to address some small problems in the contract Acts and the Sale of Goods Act 1908. Some of the changes were made via a Statutes Amendment Bill in 2002, but others have not been implemented.

These changes would have made a significant and long-overdue improvement to the coherence of the law in this area. However, they went beyond the strict minor amendments that could be made under the revision powers. This was a missed opportunity to make some important, but relatively minor, policy changes.

Making plain language changes

Any rewording in plain language must accurately reflect the essence of the wording that is being replaced, including, for example, words defined in case law, or Latin expressions. Updating Latin phrases such as “prima facie” is not as straightforward as it may appear, because the meaning may depend on the context.

For example, the expression “is prima facie evidence” was updated in the Partnership Law Act 2019 to “it is presumed, in the absence of evidence to the contrary, that the”, but the PCO considered several other options (“presumptive evidence”, “sufficient evidence, unless the contrary is shown”, “sufficient evidence, in the absence of evidence to the contrary”, or “presumed, unless the contrary is proved”).

Avoiding inadvertent change

Initially there were some concerns that the rewording of provisions might change the law inadvertently. But clear revision powers and robust checks (as described in Appendix 1) ensure that the risk of inadvertent change is low.

However, the robust checks required to meet the statutory tests come at a significant cost. In particular:

  • extensive research and other checks to reduce the risk of an inadvertent change to the law are often disproportionate to the consequences of a change (which can be very minor);
  • preserving the legal effect often requires a drafter to retain unnecessary complexity;
  • where the correct interpretation of a provision remains unsettled or is obscure, it may not be possible for a drafter to clarify the position without creating a risk of an inadvertent change. This may result in a revision Act retaining unclear provisions; and
  • the need to minimise the risk of an inadvertent change requires a drafter to take a much more conservative drafting approach than would normally be the case when legislation is updated.

Incorporating modern drafting concepts

There are other issues when old Acts are revised. For example, they may not contain an express statement about whether they bind the Crown, as modern Acts do, and there may be some uncertainty about the legal position as to whether they impliedly bind the Crown. This matter arose with the Partnership Act 1908.

In that case, a decision was made to retain the status quo and remain silent on the matter to avoid the risk of changing the law.  While this preserves the legal effect as required, this comes at the cost of accessible legislation.

Issues may also arise about whether old Acts are consistent with the New Zealand Bill of Rights Act 1990.

Each new revision Act improves the quality of legislation in New Zealand. However, the process involved is slow.

Timing

Preparing revision Bills takes time. The pre-introduction process (as described in Appendix 1) for each of the first 2 revision Acts took over 2 years. The Law Commission acknowledged that this work requires the painstaking scrutiny of skilled drafters with the support of policy officials and time because, if the work is rushed, inadvertent changes to the law are more likely to occur. And other drafting priorities will often take over at different times.

The public exposure draft consultation and certification process adds 5 to 6 months to the pre-introduction process.

Selecting Acts for revision programmes

Other issues have emerged relating to the selection of Acts. The large consolidation Bills on the second programme, the Employment Bill and the Energy Bill, have highlighted the difficulty of blending several Acts on a related subject that, on closer scrutiny, cover quite distinct areas of law.

Separate interpretation provisions may, for example, be difficult to blend. A large consolidation setting out each Act in a separate part would not necessarily make the relevant law easier to find. Revising individual Acts, or more closely connected smaller groups, might be more beneficial.

The Law Commission warned of the dangers of including too much in a single Act. This can lead to further obscurity and complexity if provisions that are fundamentally different are grouped together. It also cautioned against overlong Acts.

Several other revision Bills have not progressed, either because their technical subject matter required significant expertise of departments and external advisers, or because the policy background was unsettled and regular substantive amendments delayed work. Consequently, the PCO has refined and clarified its selection criteria and provides a more detailed analysis of Acts when proposing revision candidates to departments.

Moving isolated provisions into a “non-revision” Act

A related issue is that there are short, old Acts that would be more accessible if revised and folded into a larger Act that deals with the same subject. Sometimes an old Act was previously much bigger and more cohesive, but over time large portions have been repealed and only a few isolated provisions remain. The Act was originally more cohesive, but with many repealed provisions, few may be left in force. Rather than leave the Act untouched, it would be better to find a new home for its provisions to make them more accessible. 

However, we are unsure whether we can do this under subpart 3. The revision powers contemplate combining or dividing Acts or parts of Acts in a revision Bill, but there is some doubt about whether we can merge revised provisions with “non-revised” legislation. Subpart 3 does not clearly allow us to do this. For example, the interpretation rule in subpart 3, that revision Acts are not intended to change the effect of the law unless expressly authorised to do so, contemplates that revision Bills become revision Acts. Revising and moving isolated provisions into a “non-revision” Act has not happened under the revision programmes.

Revision and subsequent reform

A revision Act can precede necessary reforms because it sets out the legislative position with clarity and identifies gaps that exist or provisions that require reform. However, if the necessary reforms are not made soon after a revision, there is a risk that the revision programme may become subject to criticism.

In its 2008 report, the Law Commission did not appear to address the problem that Acts with settled policy may contain small problems that will be carried forward because the limited revision powers cannot help and reform work may be deferred. Leaving these problems in revision Acts is not consistent with the object of making legislation accessible and fit for purpose.

Certification before introduction

Four certifiers are statutorily appointed to certify revision Bills before introduction. They may certify a Bill if they are satisfied that the revision powers have been exercised appropriately and that the effect of the law is not changed except as authorised.

The work involves the meticulous checking of each Bill against the Act or Acts being revised. The time involved will vary depending on the complexity of each Bill. The first 2 Bills each required the certifiers to prepare for, and attend, 2 full-day meetings, and to check at least 3 versions of each Bill.

Streamlined parliamentary process

The pre-introduction process (as described in Appendix 1) for each of the first 2 revision Acts took over 2 years. However, after introduction, the streamlined parliamentary process (also described in Appendix 1) worked well, and Bills were passed quickly. The Contract and Commercial Law Bill was enacted within 10½ months. That period included the usual 6-month select committee stage. For the Partnership Law Bill, the select committee stage took only 2½ months as there were no submissions (possibly because submissions received during the pre-introduction public consultation had already been addressed). The Bill was enacted in just under 5 months.

Select committee process

The streamlined parliamentary process for revision Bills was introduced under the Standing Orders of the House of Representatives because certified revision Bills cannot make substantive changes. They therefore do not require the same level of scrutiny as normal Government Bills.

The default process includes a full select committee consideration. The time this stage takes may vary for each Bill, subject to its complexity and submissions received.

Select committees cannot consider amendments that go beyond the purpose of a revision Bill, that is, to restate and clarify the existing law. Amendments that significantly change the effect of the law would be outside the scope of a revision Bill. This effectively limits the nature of the amendments that select committees can make.

The Justice and Electoral Committee, in its consideration of the Contract and Commercial Law Bill, commented that the process could be improved to allow for greater practical revision without changing legal effect, for example, to update notice provisions to reflect technological changes. A 2019 amendment to the revision powers in subpart 3 (set out in Appendix 1) partly addressed this recommendation by expanding the powers to allow minor amendments that take account of changes in technology.

The Law Commission in its 2008 report8 noted that “if each revision Act had to go through the full parliamentary process [as in the case of the Income Tax Act 2004] the job would never be finished.” However, the PCO has found that, despite the streamlined parliamentary process, producing a revision Bill is still comparatively slow because of the pre-introduction process. The parliamentary stage benefits do not outweigh the pre- introduction time frame.

Committee of the whole House

Revision Bills can be amended at the committee stage of the whole House by Supplementary Order Paper. Subpart 3 is clear that nothing in the Legislation Act 2012 affects the powers of the House to amend a revision Bill for any purpose and to pass it with amendment. The changes to legal effect at that stage would need to be clearly identified in a schedule of the Bill.

Changes to Standing Orders

The Standing Orders Select Committee considered the legislative process for revision Bills in its report Review of Standing Orders 2020. The report recommended to the Government that a practice be established for a revision Bill, on introduction, to be accompanied by a Supplementary Order Paper that sets out any amendments expressly identified as intended to change the effect of the old law, and for the Attorney-General to draw this Supplementary Order Paper to the attention of the Business Committee.

The Business Committee is empowered under the Standing Orders of the House of Representatives 2020 to extend the powers of a select committee in respect to its recommendation of amendments to a Bill. The Committee can authorise a select committee, which is considering a revision Bill, to consider and, if it thinks fit, adopt amendments on a Supplementary Order Paper.

The Government has accepted the recommendation and will prepare a Supplementary Order Paper, when appropriate, to accompany a revision Bill. This would enable limited, uncontroversial amendments that change the effect of the law to be considered at the select committee stage and to be incorporated into a revision Bill. Any changes would be consistent with the purpose of a revision Bill, and clearly identified in the amended Bill.

I consider this is a positive development that will enable some small policy changes to be made during the parliamentary stages. However, this may not help with all drafting issues. For example, revising the Carriage of Goods Act 1979 and fitting it into the Contract and Commercial Law Bill was particularly difficult. The outdated language and structure needed a complete overhaul but this was not possible without changing legal effect. This sort of problem can only be properly dealt with before introduction.

Another relevant Standing Orders change is the establishment of a process for pre- legislative engagement with select committees that will facilitate the passage of legislation through the House, for example, by shortening the process. This may be suitable for “revision-plus” Bills that consolidate and update Acts and include some clearly identified uncontroversial changes to the law. This could make the process of revision more attractive to departments.

Is there still a problem or have developments changed the nature of the problem?

Keeping Acts up to date and fit for purpose is part of an ongoing process to improve the quality of legislation. Canada has undertaken (at the federal and provincial levels) phased or limited revisions on an ongoing basis over the last 30 years.

The Law Commission noted in 2008 that the volume and speed of legislative output meant that a revision could never be more than “a still picture of a moving scene” that is continually overtaken by new developments. Acts need to be kept under close and continuous review.

However, not all Acts are potential revision candidates. Generally, only those Acts with settled policy may be suitable. Others that contain more than “minor” defects will need a full revision and policy rewrite, for example, the 2016 Social Security Legislation Rewrite Bill that replaced the Social Security Act 1964 and the Social Welfare (Reciprocity Agreements, and New Zealand Artificial Limb Service) Act 1990. It was progressed as a rewrite/reform Bill as it made a small number of policy changes.

The Overseas Investment Act 2005 was on the second programme because it has been amended often and would benefit from rewriting. However, a targeted review of issues highlighted the need for substantive policy amendments. When those amendments are made, the Act would benefit from a full policy rewrite – that is, a “revision-plus” Bill because updating the Act is beyond what can be done in a revision Bill.

Stewardship

Developments to improve legislative quality since the Law Commission’s 2008 report include the departmental legislative stewardship responsibilities that were added in 2013 to the State Sector Act 19889.

The Government promised, in its response to the 2014 New Zealand Productivity Commission report Regulatory institutions and practices, to look at mechanisms to better keep legislation up to date. Subsequently, the Regulatory Systems Amendment Bill mechanism was introduced.

Departmental chief executives are statutory stewards of their department’s legislation. This role requires departments to proactively monitor and maintain their legislation to keep it fit for purpose ‒ rather than to react only when there is a regulatory failure. Major regulatory departments must prepare annual stewardship reports that include information on the state of their legislative stock10.

This stewardship role continues under the Public Service Act 2020, which reforms and replaces the State Sector Act 1988. Under the new Act, chief executives must maintain the currency of their department’s legislation11.

Departments may increasingly demonstrate better stewardship of their legislation, but the need to prioritise other work and the limited revision powers will continue to affect their support for the revision programme.

Is revision the best way to address the problem?

The revision process is useful but lengthy, resource-driven, and slow. The delays to timely output suggest that the revision programme is not having the systematic impact that the Law Commission envisaged. However, the 13 Acts that have been re-enacted under subpart 3, in an up-to-date and accessible form and without changing substantive legal effect, have improved access to the law, which is the purpose of subpart 3.

The modernisation of the Acts in the Contract and Commercial Law Act 2017 would have been hard to achieve without the revision programme. However, as mentioned earlier, the process resulted in a missed opportunity to fix small uncontroversial policy issues at the same time. These issues have been carried forward in the new Act.

The Government has other mechanisms, in addition to revision, that can be used to update legislation. Besides full reform/rewrite Bills, these mechanisms include omnibus Bills such as Statutes Amendment Bills (SABs). These are omnibus Bills that may be introduced under the House’s Standing Orders. They are annual vehicles for short, technical, and uncontroversial policy amendments to multiple Acts. Other omnibus Bills may be introduced with the parliamentary Business Committee’s approval on an ad hoc basis. They include Regulatory Systems Amendment Bills that are designed for the continuous improvement, or repair and maintenance, of regulatory systems. They are able to fix small regulatory problems.

As part of keeping legislation up to date, omnibus Statutes Repeal Bills can repeal redundant legislation. The PCO is working on another omnibus vehicle that will repeal obsolete provisions and make small, uncontentious changes to Acts that have no or little legal effect. The changes are too minor in practice for an SAB, but more than the “editorial” changes that the Chief Parliamentary Counsel has the power to make under the Legislation Act12.

Revision Bills and these omnibus Bills have different purposes and involve separate processes. However, departments record any issues identified during the revision work and will progress these as priorities allow, whether via an SAB or another vehicle.

Revision is one of several useful mechanisms that are available to the Government, and that can be used in parallel, to enhance access to the law. However, the revision process could be improved.

Should subpart 3 be amended?

This review has found that the most valuable elements of subpart 3 are the duty to have a revision programme and the certification process. The duty ensures that the Government is able to prioritise Acts that would not normally get legislative attention, and certification before introduction is a helpful step that is designed to give Parliament and the public confidence in the revision process.

The revision powers, however, are too limited as they tightly constrain the changes that can be made. This can be a disincentive for departments to participate in the programme. The public and legal practitioners will not engage in the public consultation on exposure draft Bills to suggest minor fixes when they know the improvements cannot be made.

The limited powers also force the PCO to be somewhat conservative when making minor amendments to the language to ensure that the law is not inadvertently changed. Words or expressions that need updating may be left untouched because of the need to keep within the confines of what the powers allow.

The revision changes under the Legislation Act 2019 (set out in Appendix 1) and the report of the Standing Orders Committee Review of Standing Orders 2020, which broaden the type of minor policy changes that can be made in a revision Bill, are good improvements that will increase the usefulness of revision Bills. They would have helped, for example, to fix some of the issues identified with the Contract and Commercial Law Bill. However, they will not address all of the problems that we have identified with the revision powers and process.

The requirement for the certifiers to state that they are satisfied that a Bill as introduced does not change the effect of the law (unless authorised) is a fairly strict test. Whether a Bill changes legal effect may not always be clear. The interpretation provision for revision Bills – that a provision is not intended to change the law unless expressly authorised – helps. But determining whether revised wording would change legal effect can be difficult. There are grey areas and the most conservative, least risky drafting option that may repeat the existing approach may be taken in preference to a minor change to legal effect even though it may be the better option.

I am recommending some improvements to subpart 3, including:

  • broadening the revision powers to permit limited, uncontroversial policy changes; and
  • relaxing the “no change in legal effect” certification test to remove the current fetters.

These changes would ensure that the revision powers and certification requirements do not prevent plain language and other valuable amendments from being made. For example, if we had been able to fix some issues in the first revision Bill (the Contract and Commercial Law Act 2017), these would have been relatively low-level changes but significant improvements.

I suggest that the Chief Parliamentary Counsel’s duty to prepare a revision Bill and provide it to the certifiers for certification should be expanded slightly to include a duty to identify for the certifiers, perhaps in a schedule of the Bill, the changes to legal effect. The certifiers would continue to certify that the revision powers had been exercised appropriately. However, they would no longer be required to certify that the Bill did not, unless authorised, change legal effect. Instead, they would certify that they were reasonably satisfied that the changes to legal effect had been properly identified in the Bill.

When deciding what sort of minor policy fixes should be permitted under the broadened revision powers, we can look to comparable vehicles like the SABs or the Regulatory Systems Amendment Bills. SABs make changes to Acts that are minor, technical, and uncontroversial. The support of all parties and any independent members of Parliament is required because, if any member objects to a clause during the committee of the whole House stage, the clause will be struck out.

Regulatory Systems Amendment Bills clarify and update provisions and address duplication, gaps, errors, and inconsistencies, which is treated as routine “repairs and maintenance” work. These Bills cannot involve significant policy change and may only be introduced with the Business Committee’s approval.

I envisage that the PCO would develop a process for assessing, in consultation with departments, whether a policy amendment would be within the scope of the broadened powers and the purpose of a revision Bill. This would require a judgement about whether proposed changes to legal effect would be limited and uncontroversial. As I have a duty to prepare revision Bills in accordance with the revision powers, I must have regard to the limits of those powers. The ministerial and Cabinet approval process would provide a further check, and to obtain the Business Committee’s approval to a streamlined process, the Bill would need to be uncontentious. If contentious, a Bill could be introduced as an ordinary Government Bill.

The intention would be that major reforms would still be outside the scope of a revision Bill, but limited, uncontroversial changes would now be permitted. There may be greater pressure on departmental resourcing as additional policy analysis and ministerial decisions would be required. However, on balance, these improvements should provide an incentive for departments and the public to engage more with revision Bills.

If the changes are made, the House of Representatives may reconsider the current streamlined parliamentary process under Standing Orders, and require these “bigger” revision Bills to be introduced as normal Government Bills. However, the gain from the stream-lined process is, in practice, fairly limited. The default process includes the usual 6-month select committee stage. If a change means first and third reading debates are required, this is not likely to add much more time to the process.

The PCO has learned from the first 2 revision programmes that we need to work with departments to be more selective in choosing Acts. The large consolidation Bills on the current programme requiring significant departmental input are generally not feasible candidates. It is likely to be more effective if we focus on individual Acts with settled policy or on smaller groupings of Acts. There are some older, shorter Acts that would be more accessible if revised and folded into a larger Act on the same subject.

I propose clarifying that the revision powers allow us to move isolated provisions that have been left in force in older Acts into “non-revision” legislation, and modifying the interpretation rule so that the interpretation presumption applies to the revised and relocated provisions. The presumption is that there is no change in legal effect unless expressly identified. I envisage that the revision provisions would be clearly identified.

Finally, improving access through revision is a way for departmental chief executives to discharge their stewardship responsibility for the legislation administered by their department. Revision helps the PCO to discharge its broader responsibility under the Legislation Act 2019 to exercise stewardship over New Zealand’s legislation as a whole by promoting high-quality legislation that is easy to find, use, and understand.

Recommendations

I recommend amending subpart 3 to:

  • broaden the revision powers to permit limited, uncontroversial policy and technical changes;
  • replace the strict “no change in legal effect” certification test with a certification about whether the certifiers are reasonably satisfied that the changes to legal effect have been properly identified in a revision Bill;
  • expand the Chief Parliamentary Counsel’s duty to prepare a revision Bill and provide it to the certifiers for certification to include a duty to identify for the certifiers any changes to legal effect; and
  • clarify that revised provisions can be moved into an ordinary “non-revision” Act and, in that case, the interpretation rule for revision Bills (that a provision is not intended to change the law unless expressly authorised) would apply only to the revised provisions. They would be clearly identified.

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Appendix 1: Revision process and powers

Preparing revision programmes

The PCO prepares and manages revision programmes for the Attorney-General. The PCO develops each programme in consultation with departments and only includes legislation supported by the administering department. Departments need to be kept closely involved as they have the policy responsibility, subject expertise, and ongoing care of the new revision Acts. Jointly administered Acts require the support of all relevant departments.

The PCO drafts each revision Bill and works collaboratively with departments, which may need to provide policy advice or information on issues and lend their support during the certification and parliamentary stages. Although Bills on a revision programme require fewer resources than legislation that implements policy changes, the size of a programme is subject to departmental resourcing constraints.

The sort of Acts that are selected for a revision programme are:

  • older and outdated in language and drafting style, or heavily amended or partly repealed;
  • able to be combined in a single Act with other Acts (or provisions) that are related in subject matter;
  • frequently used or affect a significant sector of the public;
  • unlikely to be substantively amended during the revision process by other legislation; and
  • not being reviewed (and potentially the subject of reform recommendations).

Not all old Acts may be suitable for revision. For example, revising the Deeds Registration Act 1908 would have limited benefits as the time and effort involved would far outweigh any advantages. The Act is still relevant on rare occasions as there are some slivers of land under this system that were left out of the Land Transfer Act system.

An Act will also be unsuitable when the policy underpinning it needs substantive reform and any changes would be outside the scope of the revision powers.

Each time a new programme of revision Bills is developed, existing Bills may be reassessed and carried over to the new programme or omitted.

Public consultation on revision programmes

The Attorney-General must consult publicly on a programme and the PCO manages this process. We seek targeted feedback from the legal community (including legal academics, the New Zealand Law Society, the Auckland District Law Society, and specialist lawyers) and others with a special interest or expertise in a particular area.

We received 1 submission on the first revision programme and 3 submissions on the second programme from the public and targeted consultation. The submitters supported specific Bills on the programme and suggested small changes, such as moving some prescriptive detail from the Acts (in a consolidation Bill) into secondary legislation and changing the make-up of certain consolidation Bills. Relocating prescriptive detail can be done when a consolidation Bill is being drafted under a new revision power added in 2019, and the content of a consolidation Bill can be reviewed at several stages.

The public consultation on the first 2 programmes did not result in any changes.

Once a programme is finalised, the Attorney-General presents it to Parliament at the start of the new parliamentary term. Each 3-year programme ends when Parliament is dissolved in an election year.

A change to subpart 3 last year has meant that it is easier to add or remove Bills during a programme, or to even replace a programme completely. The usual consultation process must be followed and the amended or new programme presented to Parliament.

Preparing revision Bills for introduction

Revision Bills differ from usual Government Bills

The PCO drafts revision Bills in accordance with the revision powers and process set out in subpart 3 of the Legislation Act 2012. Revision Bills cannot change the substance of the law. Very limited minor changes can be made under the revision powers set out in section 31(2A) in subpart 3.

There is no policy development stage for revision Bills and they are exempt from the usual regulatory impact assessment and departmental disclosure statement requirements for Government Bills. But the Bills are vetted for consistency with the New Zealand Bill of Rights Act 1990.

There is a public exposure Bill consultation process for revision Bills that is not standard for Government Bills, and revision Bills also require final expert scrutiny and formal certification before they can be introduced in Parliament. A streamlined parliamentary process, under the Standing Orders of the House of Representatives, then applies.

Drafting revision Bills

The statutory revision powers allow revision Bills to:

  • combine or divide Acts or their parts;
  • omit redundant and spent provisions;
  • renumber and rearrange provisions;
  • make changes in language, format, and punctuation to achieve a clear, consistent, gender-neutral, and modern style of expression consistent with current drafting style and format, to generally better express the spirit and meaning of the law;
  • include new purpose or overview provisions and examples, diagrams, and other devices to aid accessibility and readability;
  • correct typographical, punctuation, and grammatical errors; and
  • make certain minor amendments under section 31(2A).

The PCO uses modern plain language techniques to:

  • ensure that Bills have a logical structure, for example, by relocating provisions to put the main message first and the substantive provisions before the procedural ones;
  • break up long sections or sentences into separate subsections or paragraphs to express dense provisions in more readable chunks;
  • replace archaic language with simple words that convey the same meaning;
  • update terminology;
  • insert more headings to aid navigation;
  • avoid passive constructions and nominalisation;
  • use gender-neutral language;
  • update concepts; and
  • remove inconsistencies where possible.

Minor changes to the law under section 31(2A) can be made to:

  • clarify Parliament’s intent, resolve ambiguity, or reconcile inconsistencies between provisions;
  • update references to monetary amounts to reflect Consumer Price Index changes (other than amounts specified for the purpose of jurisdiction, or offences or penalties);
  • update provisions to reflect technological changes if those amendments are consistent with the spirit and meaning of the law;
  • relocate matters of general principle in Acts and matters of detail in secondary legislation, by:
  • omitting forms, schedules, or other matters of detail from the Acts, and authorising those matters to be prescribed by Orders in Council;
  • inserting in Acts matters that are currently prescribed by Order in Council made under the Acts; and
  • making any other necessary or consequential change.

The powers to resolve ambiguity, update provisions for technological changes, and relocate prescriptive detail were inserted by the Legislation (Repeals and Amendments) Act 2019.

The PCO takes a fairly conservative approach in updating the language and format of Acts and in making minor amendments. These are identified in a schedule in each Bill. Each Bill’s explanatory note describes also, in general terms, any inconsistencies, anomalies, discrepancies, and omissions that were identified and how the Bill remedies them.

Bills cannot address substantive reform issues but, as revision Acts provide a better base for future reform, issues are recorded for departments to consider later.

The PCO peer-reviews each Bill to reduce the risk of inadvertent changes to the law. The time frame for the drafting work will vary for each Bill as it is affected by the Government’s other drafting priorities.

Departmental checking

The PCO circulates draft Bills and discusses issues that are identified with administering departments. Others with a major policy interest may also be included in discussions.

Departments understand the legislative context, for example, whether provisions referring to old terms or practices are obsolete today. This was evident when the Mercantile Law Act 1908 was being revised (in the Contract and Commercial Law Bill). It was thought that Part 5 of that Act was obsolete and revising it would give a misleading impression of its relevance so it was left untouched. The policy agency later reviewed it more carefully and it was repealed.

Departments may identify further issues in a Bill. Resolving issues can, subject to the size or complexity of a Bill, require several meetings over a period of months. Drafting the Contract and Commercial Law Bill (combining 12 Acts) highlighted some complex issues for the PCO and the 2 administering departments. For this Bill, the drafting and departmental engagement took over 8 months.

Public consultation

The next stage involves the PCO, jointly with departments, preparing an exposure draft of a revision Bill for a public and targeted consultation process. The exposure draft contains notes of issues and questions for feedback, and separate explanatory material and questions.

The documents are published on the PCO corporate website and notices are posted on various public noticeboards. The PCO seeks feedback from interested stakeholders such as those in the legal community and professional bodies. The PCO and the departments then analyse the submissions that are received, which may result in some changes to the Bill.

Revision certification before introduction

Under section 33 of subpart 3, 4 eminent lawyers certify each revision Bill before it is introduced into Parliament. The certifiers are a retired High Court Judge the Attorney-General nominates (currently Hon John Priestley CNZM QC), the President of the Law Commission, the Solicitor-General, and the Chief Parliamentary Counsel.

The certifiers become involved after the public consultation process. The PCO provides the Bill to them with the submissions, an analysis of changes, and a summary of outstanding issues.

The certifiers meet formally to discuss the Bill and may raise their own issues. PCO and officials from the relevant departments present the Bill and assist the certifiers with background information, issues, or departmental policies. The certifiers decide how to resolve matters that may require further changes to the Bill.

How often the certifiers meet depends on the nature and extent of the issues that arise and the certifiers’ availability. The certifiers held 2 full-day meetings for the first revision Bill (the Contract and Commercial Law Bill) over 2 months, and 2 meetings for the second Bill (the Partnership Law Bill) over 4 months.

When the certifiers are satisfied that the revision powers have been exercised appropriately and the Bill does not change the effect of the law except as authorised (under section 31(2A)), they certify the Bill.

The Chief Parliamentary Counsel provides the revision certificate to the Attorney-General, who presents it to the House when the Bill is introduced.

BORA vetting

Each revision Bill must be checked to ensure that it is consistent with the New Zealand Bill of Rights Act 1990 (BORA). The Ministry of Justice usually does this and provides advice to the Attorney-General a week before the Bill goes to the Cabinet Legislation Committee for approval to be introduced.

The BORA advice is usually based on the introduction version of a Bill. However, that advice can result in changes to a Bill. The Bill therefore needs to be provided to the vetting agency before the revision certification is given because, once the Bill has been certified for introduction, it cannot be changed. This timing issue is dealt with by providing the Bill for BORA vetting well before the final version goes to the certifiers. As the Bill is amended, the vetting agency receives each new version. These are not substantive changes.

Streamlined parliamentary process

After introduction, the PCO manages the Bill, with relevant departments assisting, as the Bill progresses.

The parliamentary process is streamlined under Standing Orders of the House of Representatives so that a Bill moves relatively quickly through to enactment. The default process has no first or third reading debates. It also has no committee of the whole House stage unless the Business Committee requires one or a change is proposed that needs to be considered by the House in committee.

The Contract and Commercial Law Bill was passed 9½ months after introduction and the Partnership Law Bill was passed after 4½ months. There were no submissions on the second Bill, possibly because of the public consultation process before introduction, and the select committee reported it back early, after 2½ months.

Interpretation of revision Acts

A revision Act is not intended to change the effect of the law unless it expressly provides that a particular provision is intended to change legal effect.

Appendix 2: Bills on the revision programmes 2015‒2017 and 2018‒2020

Revision programme 2015‒2017: Revision Bills and the Acts they reviseProgressIssues
Civil Liability Legislation Bill
Law Reform Act 1936
Law Reform Act 1944
Carried over to the 2018–2020 programme. Progress affected by resourcing constraints.
Contract and Commercial Law Bill
Carriage of Goods Act 1979
Contracts (Privity) Act 1982
Contractual Mistakes Act 1977
Contractual Remedies Act 1979
Electronic Transactions Act 2002
Frustrated Contracts Act 1944
Illegal Contracts Act 1970
Mercantile Law Act 1908
Minors’ Contracts Act 1969
Sale of Goods Act 1908
Sale of Goods (United Nations Convention) Act 1994
Wages Protection and Contractors’ Liens Act Repeal Act 1987 (added at the select committee stage)
Contract and Commercial Law Act 2017  
Land Valuation Proceedings Bill
Land Valuation Proceedings Act 1948
Carried over to the 2018–2020 programme.  
Occupiers’ Liability Bill
Occupiers’ Liability Act 1962
To be put on the next programme 2021–2023 subject to Ministry of Justice agreement.  
Partnership Law Bill
Partnership Act 1908
Carried over to the 2018–2020 programme
Partnership Law Act 2019.
 
Summary Offences Bill
Summary Offences Act 1981
Not carried forward to the 2018–2020 programme. The Ministry of Justice intended at that stage to include the Act as part of a future review of the Crimes Act 1961 and the Secret Commissions Act 1910.
Victims’ Rights Bill
Victims’ Rights Act 2002
Not carried forward to the 2018–2020 programme. The Ministry of Justice had work underway with regard to victims, in particular, victims of family and sexual violence. The Act was amended in 2018 and 2019.

 

Revision Programme 2018‒2020: Revision Bills and the Acts they reviseProgressIssues
Bills of Exchange Bill
Bills of Exchange Act 1908
Cheques Act 1960
This Bill will not continue under the next programme (2021–2023). The Bill will require a lot of work for little gain.
It contains complex, specialised banking law, requiring significant departmental support and specialist input.
Civil Liability Legislation Bill
Law Reform Act 1936
Law Reform Act 1944
On hold. The drafting is well underway. The Ministry of Justice is reviewing a draft Bill.
Electoral Bill
Electoral Act 1993
This Bill will not continue under the next programme (2021–2023). Progress is complicated by regular substantive policy amendments and work resulting from the normal select committee election review and other issues that arise.
Employment Bill
Employment Relations Act 2000
Equal Pay Act 1972
Minimum Wage Act 1983
Parental Leave and Employment Protection Act 1987
Shop Trading Hours Act 1990
Trade Unions Act 1908
Volunteers Employment Protection Act 1973
This consolidation Bill will not continue under the next programme (2021–2023). See comments above.
Energy Bill
Atomic Energy Act 1945
Electricity Act 1992
Energy Companies Act 1992
Energy Efficiency and Conservation Act 2000
Energy (Fuels, Levies, and References) Act 1989
Gas Act 1992
Petroleum Demand Restraint Act 1981
This consolidation Bill will not continue under the next programme (2021–2023). See comments above.
Land Valuation Proceedings Bill
Land Valuation Proceedings Act 1948

 

Public consultation completed and Bill being finalised for certification stage before introduction.  
Overseas Investment Bill
Overseas Investment Act 2005
This Bill will not continue under the new programme. The work on this Bill has been overtaken by substantive law changes.
Parliament Bill
Clerk of the House of Representatives Act 1988
Members of Parliament (Remuneration and Services) Act 2013
Parliamentary Privilege Act 2014
Parliamentary Service Act 2000
This Bill will not continue under the next programme. This Bill will not continue under the next revision programme because there are substantive issues with the existing legislation that cannot be resolved in the context of a revision Bill.
Partnerships Law Bill
Partnership Act 1908
Partnership Law Act 2019  
Summary Proceedings Bill
Summary Proceedings Act 1957
Drafting is underway. Progress is subject to other priorities.

1Law Commission’s 2008 report Presentation of New Zealand Statute Law (NZLC Report 104)
2Plain English and the Law Report No 9, Law Reform Commission of Victoria (1987)
3Regulatory institutions and practices New Zealand Productivity Commission (2014) (page 416)
4Peter James Taylor v Asteron Life Limited [2020] NZCA 354; Jade Residential Ltd v Paul [2020] NZCA 477; Southern Response Earthquake Services Ltd v Dodds [2020] NZCA 395; ANZ Bank NZ Ltd v Bushline Trustees Ltd [2020] NZSC 71
5The Contract and Commercial Law Act 2017 [2017] NZLJ 310
6Law Commission Issues Paper 2 Presentation of New Zealand Statute Law (2007)
7NZLC Report 25
8(NZLC Report 104) paragraph 7.56
9Section 32(1)(d)(ii) of the State Sector Act 1988 (now repealed by the Public Service Act 2020)
10https://treasury.govt.nz/information-and-services/regulation/regulatory-stewardship/keeping-regulation-fit-purpose/regulatory-system-reporting
11Section 52(1)(d)(ii) of the Public Service Act 2020
12Section 25 of the Legislation Act 2012 (to be replaced by section 87 of the Legislation Act 2019 expected to come into force during 2021)

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