New Revision Bill Programme 2015-2017

Chris Finnlayson
Attorney-General
Chris Finlayson

David Noble
Chief Parliamentary Counsel
David Noble

The Legislation Act 2012 (Act) has introduced a requirement for the Attorney-General to table a three-yearly programme of statutes to be “revised” during each new Parliament. This is a new function under the Act – the idea being to make selected statutes more accessible, without changing their substance.

Attorney-General Christopher Finlayson announced on 15 July 2014 that the first such revision programme is now available for consultation on the Parliamentary Counsel Office (PCO) website at www.pco.parliament.govt.nz/revision-consultation/. This programme will run from 2015 to 2017 in conjunction with the sitting term of the 51st Parliament.

Interested parties will have the opportunity to comment on the statutes up for revision during a consultation period between now and 9am on 25 August 2014. Once the new Parliament is in place following the upcoming election, the then- Attorney-General will be obliged to present the programme to the House as soon as practicable after the Government approves it.

Law News spoke with David Noble, who is Chief Parliamentary Counsel at the Parliamentary Counsel Office in Wellington (and the man who will have the most work to do in ensuring the revision programme runs smoothly), about what revision of statutes actually entails – what it is, its purpose, the difficulties, limits on revision powers and the process by which revision Bills will become law.

Acts affected

As part of the first programme of revision, a new Contracts and Commercial Revision Bill has been proposed, which will encompass revision and consolidation of the 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 and the Sale of Goods (United Nations Convention) Act 1994.

It is intended that this Contracts and Commercial Revision Bill be enacted during the three-year revision period. The webpage for the revision programme notes: “These are largely older Acts that are expressed in language that is out of date and many provisions have been repealed. Their consolidation in a modern form will make them more accessible and reduce regulatory costs for business”.

Other new revision Bills being introduced during the 2015-2017 revision (on which work is expected to continue, but may not be completed, during the three year revision period) include:

  • Land Valuation Proceedings Revision Bill (which will revise the Land Valuation Proceedings Act 1948 – “The Act is older with many repealed provisions,” state the notes);
  • Civil Liability Legislation Revision Bill (which will revise and consolidate the Law Reform Act 1936 and the Law Reform Act 1944 – “There are only a few provisions left in these older Acts relating to the effect of death on causes of action, charges on insurance as indemnity for liability to pay damages, liability of tortfeasors, damages for injury from shock”);
  • Occupiers’ Liability Revision Bill (which will revise the Occupiers’ Liability Act 1962 – “This Act is written in out of date language”);
  • Partnership Revision Bill (which will revise the Partnership Act 1908 – “This Act is old and expressed in archaic language”);
  • Summary Offences Revision Bill (which will revise the Summary Offences Act 1981 – “This Act would benefit from being modernised and renumbered”); and
  • Victims’ Rights Revision Bill (which will revise the Victims’ Rights Act 2002 – “The Act’s structure could be simplified and its provisions expressed in simpler, plain English”).

What is revision and what is its purpose?

The Act aims (among other things) to make New Zealand statute law more accessible, readable, and easier to understand by facilitating the progressive and systematic revision of the New Zealand statute book. In particular, this is to be achieved by:

  • rationalising and more logically arranging statutes and sections within them;
  • removing inconsistencies and overlaps;
  • repealing obsolete and redundant provisions; and
  • modernising expression, style, and format and making them more consistent.

“The Legislation Act 2012 requires the government to improve the way some of our statutes are presented to make the law more accessible. The Attorney-General is required to identify, and consult on, suitable candidates to propose for revision over the three year period of each new parliamentary term. All revision Bills must be certified before they can be introduced into Parliament for re-enactment,” said the Attorney-General.

The process of “revising” a statute must therefore be distinguished from “re-writing” or “re-drafting” – rather it is an “updating” or “re-enactment” of an older or unwieldy piece of legislation. Essentially, the end result will be a statute that is clearer and more accessible, with its substantive legal effect remaining the same despite being differently phrased.

The last major revision of New Zealand statutes occurred in 1908, when the entire statute book was revised within a period of two years. At that time, all the revised Acts were simply passed as a schedule to the 1908 Act, with hardly any consultation or parliamentary involvement in the process at all.

Compare that to the detailed process required now (found in subpart 2 of Part 2 of the Act). Although the new requirements may be a partial reflection of the increasing complexity of our legislation in the intervening years since 1908, it is also apparent that much greater care has been taken to ensure that the powers and processes governing those carrying out the revision are strictly set down, and that there is a greater degree of consultation and parliamentary participation (discussed further below).

The amount of time needed to effect the revisions is also vastly different – each tranche of legislation will take three years to revise. While there is no end date for the revision programme work, after six years the Government will review the need for the revision regime, its operation and effectiveness.

More than meets the eye

The mere process of clarification and modernisation may seem simple enough – David Noble describes it as “a tidying up, a logical consolidation and putting things into plain English – not a big re-write”. However, he acknowledged that the exercise of the powers of revision may be more fraught with difficulty than is initially apparent, and accordingly he was keen to explain the process and limitations the revisers will be operating under to ensure that they do not go beyond the scope of their remit.

There is the challenge of making sure any rewording into modern, plain English accurately reflects, on a “like for like” basis, the essence of the wording being replaced. Lawyers and judges alike may be concerned that the law might inadvertently be changed through an infelicitous expression being used in place of the former wording.

Practitioners who frequently rely on particular wording in a section, or who are used to referring to particular sections by number, may struggle to adapt to re-worded and renumbered provisions.

All of this makes it very important to have the powers of revision clearly delineated, understood, and subject to robust checks and balances.

What powers can revisers exercise?

Revision powers are set out in section 31(2) of the Act. Revision Bills may be used to:

  • combine or divide Acts or their parts;
  • adopt a new Title;
  • omit redundant and spent provisions;
  • renumber and rearrange provisions;
  • change the current drafting style and format, and generally to express better the spirit and meaning of the law;
  • include new purpose or overview provisions and examples, diagrams and other devices to aid accessibility and readability; and
  • correct typographical, punctuation, and grammatical errors.

A revision Bill must not change the effect of the law except (as allowed under section 31(2)(i) and (j)) to:

  • make minor amendments to clarify Parliament’s intent or reconcile inconsistencies; and
  • update monetary amounts for Consumers Price Index (CPI) changes or provide for amounts to be prescribed by Order in Council.

Renumbering

David Noble, as Chief Parliamentary Counsel, also has a lesser set of powers enabling him to re-number old statutes for the sake of logic and tidying up. However, even this seemingly simple power may prove contentious.

The difficulty is that practitioners are familiar with certain sections and used to referring to them by way of their section number – this could be a confusing change for them to get used to. It is not only the statutes themselves that will be affected – lots of ancillary documents such as forms etc also cross-refer to the numbers of particular sections – all of those would need to be revised as well. It looks simple but is actually quite a difficult task.

Some of the questions to be asked during the consultation period will tend towards narrowing down which Acts would benefit most from such renumbering.

Drafting and consultation

Each new programme of revision is tied to the three-year sitting of a particular Parliament. Such a programme will set out the new and ongoing revisions, and, in particular, those revisions that should be enacted during the three-year term.

The Attorney-General must consult on each new programme. The Parliamentary Counsel Office will publish details of the programme on its website, so that interested persons and the public can view it and make submissions.

David Noble anticipates that organisations such as ADLS and NZLS will be involved in this process. Submitters may disagree with some of the statutes being proposed for revision, or they may consider that other statutes or sections should also be revised in conjunction with a particular tranche of revisions.

Indications are that some in Wellington would like the programme of revisions to be fairly comprehensive, however, reality may fall short of that desire. Despite the intention being only to update wordings without changing substance, it is anticipated that some ministries may have policy questions or concerns when a statute that falls within their remit is up for change, meaning proposed revisions may end up being curtailed somewhat during the consultation phase.

Feedback received will inform the final programme approved by the Attorney-General, who will then submit the programme to Cabinet for approval and present the programme to the House. This should be timed to happen at the start of each new Parliament to ensure that the programme of revision of statutes can proceed on an orderly basis.

The Chief Parliamentary Counsel is required to draft the Bills on the programme in accordance with the revision powers in section 31 (discussed above). Responsible policy agencies will be consulted during the drafting process and there may be further public submissions at this point as well if Bills are published as exposure drafts.

Certification of revision Bills

Revision Bills must be checked and certified by four certifiers. These persons are appointed by the Attorney-General as specified in section 33 of the Act, as follows:

  • the President of the Law Commission (currently the Honourable Sir Grant Hammond KNZM);
  • the Solicitor-General (currently Mike Heron QC);
  • a retired High Court Judge (the Hon John Priestley CNZM QC); and
  • the Chief Parliamentary Counsel (currently David Noble).

“I am very pleased that John Priestley will contribute his expert legal skills and experience to this new role,” said the Attorney-General when announcing the revision programme. “John Priestley has had a long and distinguished legal career, retiring in 2013 after 13 years as a High Court Judge. His expert scrutiny, and that of the other certifiers, will ensure that the substance of the law will not be changed in these revision bills”.

Before certifying a Bill, the certifiers must be satisfied that the revision powers have been exercised appropriately, and, importantly, that the revision Bill does not change the substantive effect of the law (as explained above).

The certifiers have real power here – if they are not satisfied that a re-wording properly encapsulates what was meant by the wording being replaced, they can require a Bill to be changed before agreeing to certify it.

Introduction and enactment

Once certified, the Chief Parliamentary Counsel provides revision Bills and their certificates to the Attorney-General in readiness for introduction into Parliament.

Each revision Bill will have an explanatory note confirming that revision powers have been exercised appropriately and that the Bill does not change the effect of the law except as allowed, and a statement setting out the inconsistencies, anomalies, discrepancies, and omissions that have been remedied in the Bill.

It is intended that the Parliamentary process for the enactment of revision Bills will be “fasttracked” because they will have no element of new policy in them and will not make substantive changes to the law. For example, a select committee will consider revision Bills as normal, but the normal process of debate prior to a Bill going to the select committee will be curtailed – they will pass straight on after their first reading. The focus for the select committee will also be narrower than usual, concentrating on whether the new wording in the revised Bill has been phrased correctly and that the effect of the law is not changed except as allowed (as discussed earlier).

Because the revised Bills will be government Bills, they have the potential to eat into the government’s legislative programme quite significantly. Whatever party is in government after the election will have the obligation to introduce the Bills – however if they are too time-consuming, there is the potential for them to slip down the legislative agenda. This is another good reason to have a streamlined process in place.

Additional check by the courts

Although the enactment of a revised Bill will have the effect of “sweeping away” or completely replacing the former provisions, one additional check to ensure the law is not being changed will remain (in addition to the multiple levels of checking and certification that occur before the Bill passes).

The intention (and hopefully the reality) is that judicial consideration of a revised section will be unaffected, as the case law relating to the previous section will remain as applicable as ever to the re-worded but otherwise unchanged (in terms of legal meaning) new section, to the extent that if there are concerns about the interpretation of a new section, courts will retain the power to look back at the old equivalent.

Next steps

The first three year programme of statute revision is now available for public submissions on the Parliamentary Counsel Office website at http://www.pco.parliament.govt.nz/revisionconsultation. Submissions are due by 9am on 25 August and can be sent to contact@pco.parliament.govt.nz.

Law News will watch with interest to see how this first revision programme is received and what kinds of debate it engenders. We will feature a follow-up item post-election once the programme is underway and the first round of certifications has happened. 

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