RELATION TO OTHER LAW
What impact is the proposed legislation to have on existing situations?
163 The general passage in paras 33 to 35 above touches on this critical and large matter. Three further particular issues are noted here:
What impact is the proposed legislation to have on existing situations?
164 Particular provisions in the criminal law, more general ones in the Acts Interpretation Act 1924, and provisions in particular statutes, as well as general presumptions of the common law, deal with the impact of new legislation on existing situations. The Law Commission in Chapter V of its Report on A New Interpretation Act (NZLC R17 1990) for instance restates and develops the general principle that law should have prospective effect only. It sets out and discusses the following factors relevant to that principle and its limits:
effectiveness: much law will work in practice only if the people subject to it know in advance what it requires and can organise their actions in accordance with it
justice: it may be unjust to apply new law to old situations; in particular no one should be subject to a criminal penalty for some act that was not a crime at the time of the alleged offence
reasonable expectations: individuals may enter into continuing legal obligations (as in contracts for oil exploration) on the basis that the law will have a particular impact
responsibilities of government: but Parliament may be of the view that the public interest requires the law (for instance of taxation of oil exploration) to be altered
effective administration: new courts, institutions and procedures might have to become relevant to existing obligations and rights; and indeed principle and practice do accept that procedural law can apply to earlier events.
165 Those factors, as well as the general law to be found in the 1924 Act, in other legislation (including the Bill of Rights Act s 26, the Criminal Justice Act 1985 s 4 and the Crimes Act 1961 s 10A), and in the common law should be carefully considered by those preparing legislation which will or might have an effect on existing situations. The question may arise whether particular application or savings provisions are required.
Is action taken in breach of the legislation to be invalid?
166 Both the Acts Interpretation Act 1924 s 5(i) and the common law provide that a violation of the requirement of a statute does not always mean that the act in question is invalid or without legal consequence. Such savings provisions are also included in many specific statutes in a variety of contexts - for instance in respect of appointment criteria and processes, vacancies, notice and consultation provisions, and time limits. Attention should be given to the question whether particular provision should be made about that matter or it should be left to the general law.
Are there relevant supplementary powers?
167 The Acts Interpretation Act 1924 and the Constitution Act 1986 in effect supplement the provisions of other Acts. Those supplementary provisions are of a general character. The common law may also provide a relevant power, particularly the power of the Crown to negotiate and enter into contracts. And particular statutes already on the statute book may make an additional grant of power unnecessary. That is to say, we have at this point come full circle: is the proposed legislation actually needed?