LEGISLATION ADVISORY COMMITTEE

Legislative Change Guidelines on Process & Content

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PART II GENERAL MATTERS

31     This section considers nine general questions which relate closely to the Cabinet Office circular set out in Appendix A. The previous section has already identified a critical first question: is legislation needed at all (paras 18-20)? If it is, the next question follows:

That question does not however stand alone. Much of the remainder of this report looks to the proposed legislation in its wider context:

There can be a tension between the answers to the two questions: the government's will might, for instance, require a departure from established principle. Can the departure be justified?

Does the legislation implement the policy of its proponent?

32      This question is critical. It should probably not need stating. But there is no harm in repeating the obvious. The question relates back to essential aspects of the process discussed under the previous heading, especially the need for the legislation, the clarification of the policy in issue, the determination of the means to give effect to the policy, the carrying out of consultations and the preparation of clear instructions for Parliamentary Counsel. One important aspect of the process is whether the whole or only parts of the proposed policy is presented in the Bill. The Committee's experience is that piecemeal reform is to be avoided if at all possible. Unnecessary fragmentation leads to errors in legislation and wastes valuable time.

The answer to the question stated in the heading will often be at a number of levels of generality, for at the most detailed level those proposing the legislation may not - very likely will not - have a precise knowledge of all the situations that might arise. On the face of the legislation itself, the answer might be partly given by a statement of the policy, for instance in the title, a preamble, or an early substantive provision or set of provisions (as respectively in the Matrimonial Property Act 1976, the Treaty of Waitangi Act 1975, and the Official Information Act 1982). Such an emphasis on the policy might also help with the presentation of the legislation to those it affects and accordingly with its effectiveness. Purpose provisions can serve a valuable public purpose. However, they need to be drafted with restraint and should have regard to the obligations which they place on the Ministers and agencies responsible for their implementation. Doctrinal essays on non-justiciable concepts do not make the legislation more effective. The matter is further considered in the Report of the Law Commission on A New Interpretation Act (1990), para 70.

How does the legislation relate to the general body of the law?

33      A statute is not complete and entire unto itself. It is in greater or lesser degree part of a larger legal continent. It may have to be read with the statute which it amends (as almost all do - even if they are not themselves entitled as Amendment Acts), statutes which apply to it (by their own express terms, or implicitly, or because the new statute so provides), the general body of the law of statutory interpretation, and relevant aspects of the general law. 34     These issues are in part technical. They can also raise important issues of policy. That can be illustrated by one instance of the last item on the list. Assume a statute which places a duty on individuals and provides for a criminal penalty for breach of the duty. Is the statutory provision exhaustive? Or is the general law of remedies relevant? What, for instance, is the position of a person claiming to be a beneficiary of the rule which imposes that duty? Can that person

The policy answer to that set of questions may be implemented at the technical level, for instance by providing for remedies and expressly stating them to be exhaustive, by expressly invoking remedies outside the legislation, or by recognising that the legislation will operate within the scope of other legislation (such as the Illegal Contracts Act 1969). 35     The enforcement issue (considered further in paras 143-152 below) is but one of many points of contact between the particular piece of legislation and the rest of the law. Thus the rest of the law determines or at least deals with such matters as

Some of these matters are considered later (eg, paras 164-165 on retroactivity), and are also discussed in some detail in report No 17 of the Law Commission on A New Interpretation Act (1990) paras 192-227, 332-438 and pp 215-218.

Does the legislation comply with basic principles of our legal and constitutional system?

36      Over a very long period, basic principles, stated by the courts, Parliament, and more diffusely (for example in appeals to the rule of Law, democratic principle, the principles of the Treaty of Waitangi, or justice) have become established. They may have a specific application in the way indicated in para 34: the example discussed there illustrates the principle that where there is a right there is a remedy. It emphasises the proposition that the history of freedom is largely the history of procedural safeguards.

37      The principles also have - or should have - impact at the stage of the formulation of the policy of the legislation and its development. Much of the remaining part of this report is about those principles. An example or two can be given here. The principle that only Parliament should impose taxes, established in the 17th century, is obviously relevant to the preparation of taxing and other regulatory statutes. Any delegation of that power by Parliament to the executive must be carefully justified. And the principle that liberty should not be taken except under the due process of law, which can be traced back to Magna Carta in the 13th century, obviously informs much of our law including criminal law. The New Zealand Bill of Rights Act 1990, which also reflects international obligations and especially the International Covenant on Civil and Political Rights, gives greater detail to that broad principle and goes beyond it. As indicated, the principles, especially in their detail, are to be discovered not only in the common law but also in legislation, some of it contemporary (as with the detail of powers of entry and search considered in paras 135-141 below).

Does the legislation comply with the New Zealand Bill of Rights Act 1990?

38      Section 7 of the New Zealand Bill of Rights Act 1990 requires the Attorney-General to bring to the attention of the House of Representatives any provision in any Bill introduced into the House which appears to be inconsistent with the Bill of Rights (set out in Appendix C). The Bill affirms a range of civil and political rights including, in some detail, procedural rights available to individuals in criminal matters and in other disputes with the State. In some cases the Bill of Rights issue will be clear; consider for instance proposed legislation creating retrospective criminal liability. But in other cases the issue may not be obvious; for instance does legislation dealing in a particular way with the Crown's position in litigation conform with the principle of equality stated in s 27(3)? The Bill is referred to at appropriate stages in this report.

39      Procedures have been developed involving the Crown Law Office and the Law Reform Division of the Justice Department for checking proposed legislation by reference to the Bill and for advising the Attorney-General when that is required.

Does the legislation comply with the principles of the Treaty of Waitangi?

40      The Cabinet Office Manual, in the forms set out in Appendix A, requires the question in the heading to be answered by Ministers proposing new legislation. On 23 June 1986 Cabinet

The process and judgments involved in answering the question and the giving effect to the decision are very difficult. Simple majority decision-making is not always the answer. In some situations, autonomous Maori institutions have a role within the wider constitutional and political system. In other circumstances, the model provided by the Treaty of Waitangi of two parties negotiating and agreeing with one another is appropriate. The law may sometimes accord a special recognition to Maori rights and interests such as those covered by Article 2 of the Treaty. And in many other cases the law and its processes should be determined by the general recognition in Article 3 of the Treaty that the Maori belongs, as a citizen, to the whole community. Policy and procedure in this area are still evolving.

41      Consultation and related processes of decision making are critical. Priority must be given by those involved in preparing legislation to ensure that Maori interests are identified promptly, consultation with the relevant community or communities is undertaken at an early stage, the consultation is carried out in a manner and context with which Maori people are comfortable, the consultation is seen to have clear results, and there is feedback to the Maori community. Proper consultation within the government is also crucial.

42      The content of legislation may reflect the Treaty in a variety of ways. It is very important that attention is focused on the specific aspects of the Treaty which are relevant. What are the guaranteed rights or interests which are put in question? What is the role of the Crown's right to govern? So, the Treaty might be mentioned specifically or the reference might be more general. The reference might be to the principles or to the Treaty itself. The Treaty (or its principles) might be given a certain priority or it might be a matter to be considered along with others. Legislation over recent years relating to fishing, conservation, state-owned enterprises, the environment, and resource management, as well as the Treaty of Waitangi Act 1975, provide such models. Recent relevant legislation is noted in Appendix D.

Should the Ombudsmen Act 1975 or the Official Information Act 1982 or the Local Government Official Information and Meetings Act 1987 apply to the body in question?

43      When public bodies are being established, these questions should be addressed. As a general principle, the Ombudsmen should have jurisdiction over departments and other organisations that make decisions which relate to matters of central or local government administration and which affect members of the public. Even if the Ombudsmen Act is not applicable to a public body, either of the official information statutes might apply. The factors to be taken into account are the relationship between the body and central or local government and its public purpose. See further paras 160-161.

Does the legislation comply with relevant international obligations and standards?

44 In a very wide and increasing range of areas, New Zealand is committed by its treaty obligations or by customary international law to make particular provision in its domestic laws. Appendix E is a list of primary legislation which appears to raise treaty issues. It includes about one quarter of all public Acts. Any proposal to amend that legislation should prompt the question whether there is a treaty which must be taken into consideration. Again, appropriate and timely consultation, especially with the Ministry of External Relations and Trade is essential. Even where there is no direct obligation, there might be an international standard, especially in the human rights area, which is relevant to the preparation of new legislation and to the replacement and amendment of the old. It may also be relevant to the interpretation of legislation. Appendix E also includes a note prepared within the Law Commission about treaties: what are they, what do they do, how are they made, and how are they given effect?

Is the legislation as understandable and accessible as practicable? Are its expression and content as simple as practicable?

45      These questions use the words of the Law Commission Act 1985. The second recalls Albert Einstein: make things as simple as possible but not simpler. They relate back to the first question in this part - to the possibility of statements of policy, and to the need as well in some cases to give precise directions. Precision, involving greater detail, may make simplicity more difficult to achieve. In a more general sense the questions recall the rules stated by - Orwell, a great exponent of the English language, in his Essay on Politics and the English Language:

46      The matter is of course very much one for Parliamentary Counsel - but not exclusively so. It is the words of the legislation that carry the main burden, at least at first, of stating the policy the legislator wants on the statute book. All of those concerned with the preparation of legislation have a responsibility to see to it that the policy is articulated in it. This matter is to be pursued both in the preparation of particular statutes and more generally, for instance in the Manual on Legislation being prepared by the Law Commission.

Does the legislation have the necessary financial approvals?

47      If legislation will involve public expenditure then the appropriate approvals must be sought and obtained.

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