Update from the PCO on Contract and Commercial Law Bill and “ASIP”

Law News recently caught up with Fiona Leonard, who took over as Chief Parliamentary Counsel at the Parliamentary Counsel Office (PCO) earlier this year, following the retirement of previous Chief Parliamentary Counsel, David Noble.

Fiona Leonard

The PCO has had a full agenda in recent times. In addition to drafting and publishing most Government Bills and regulations, the PCO has been working on the Government’s statute revision programme, bringing together disparate legislative instruments into one place, and working on a project to provide access to all of New Zealand’s legislation. We were keen to find out how these projects are progressing, and what impact they will have on the practice of law.

Contract and Commercial Law Bill

As noted in Law News earlier this year (Issue 16, 27 May 2016), the first revision Bill in the statute revision programme – the Contract and Commercial Law Bill (Bill) – was recently introduced to the House. It has now received its first reading (on 14 June 2016) and has been referred to the Justice and Electoral Committee for consideration.

Described as a Bill to “modernise and consolidate the laws underpinning contracts and commercial transactions”, it consolidates 11 contract and commercial Acts, some dating back to 1908, into a single piece of legislation with a modern style and format. In announcing the Bill, Attorney-General Christopher Finlayson QC hoped that it would “assist people and businesses to find and follow the rules that apply to them [and] help to reduce regulatory costs”.

“This is a huge milestone step for the PCO, as it’s the first Bill in the Revision Programme to go through,” says Fiona Leonard.

Parliamentary procedure for enacting revision Bills is streamlined as while they aim to make the law clearer and easier to understand, they contain no new policy or substantive law changes. As part of this new “fast-tracked process” for Revision Bills on the Programme, there was no debate on the first reading, and the Bill progressed straight to the Justice and Electoral Committee for consideration. It is expected that amendments that go beyond restating the existing law and clarifying its intent would be outside the scope of the Committee. From there, it will be reported back to the House and go for subsequent readings. There is no debate on the third reading of revision Bills.

“The default position is that it goes straight from the second to third reading. The House is, of course, not precluded from considering amendments raised by the Minister in charge or by a member. But generally these would only be very minor,” says Ms Leonard.

Submissions on the exposure draft of the Bill were sought between October and December last year, with responses helping to prepare the Bill for introduction. Ms Leonard says that, as expected, only a handful of submissions were received on the exposure draft of the Bill.

“I think there has been some nervousness about the changing of language used and other minor changes such as numbering – that is inevitable. But we have taken quite a prudent and conservative approach to this Bill, and it has been peer-reviewed both internally and by MBIE.”

As required, the Bill was also certified under section 33 of the Legislation Act 2012 by four certifiers – a retired High Court judge (the Hon John Priestley CNZM QC), the President of the Law Commission (at that point, Sir Grant Hammond), the Solicitor-General (Una Jagose QC) and the Chief Parliamentary Counsel (the recently-retired David Noble).

“All these processes and systems are to ensure that the Bill is only doing what it is supposed to be doing – it is very clear in the legislation that no policy changes are to be made, and it does not change the law except for minor amendments for the sake of clarification and to matters such as changes to monetary amounts,” says Ms Leonard.

“We are hoping that the experience of this Bill will be a ‘poster’ for how the Revision Programme works. People will see it go through and they will get used to the process – hopefully they will appreciate the plain language, how much tidier it is, and the fact that it doesn’t take up too much of the House’s time.

“It will be interesting to see how the courts deal with the modernised Bill, but the judiciary always takes a purposive approach, and it is very clear that there has been no intention to change the law.”

The PCO is currently working on the next Revision Bill in the programme – a Partnerships Bill – and is hoping to have this ready as an exposure draft by the end of the year.

Access to Subordinate Instruments Project (ASIP)

Another key focus for the PCO at present is the Access to Subordinate Instruments Project or “ASIP”. This project was announced in September 2015, in recognition of current difficulties in identifying and tracking instruments that are not drafted and published by the PCO. The project is part of the PCO’s continuing programme to improve access to legislation in New Zealand.

Currently, the New Zealand legislation website provides links to more than 870 existing tertiary instruments, but there are far more than that in existence. Despite the best endeavours of the PCO to encourage agencies to collect them all in one place, the vast majority of these types of instruments have only appeared via the Gazette, or are only available on the website of the agency that first drafted them. ASIP now aims to make all tertiary instruments available on the New Zealand legislation website as a comprehensive, official, publicly accessible source.

“We have been corralling together all the instruments and the agencies that draft them – to date we are up to 102 agencies, which is a huge number – and we have found all sorts of different things being drafted by different people that have legislative effect,” says Ms Leonard.

“The overall objective of this project is to make all tertiary instruments available on the New Zealand legislation website, regardless of who drafted them.”

The informal concept development and design stages of the project have been completed. It has now entered its first formal stage – the project establishment stage – during which formal governance and assurance processes are being established, the business case will be prepared, and extensive consultation will occur with all stakeholders.

“Comments made by Miriam Dean QC during the whey protein inquiry about the vast number of instruments in existence and difficulty of finding them are very telling,” says Ms Leonard.

“We are putting a lot of resources into this project – it has been a real problem and we are very keen to get it moving.”  

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