LEGISLATION ADVISORY COMMITTEE

Report of the Legislation Advisory Committee 1 January 1994 to 31 December 1995:  Recurring Issues

APPENDIX 1

Legislation Overriding Judgments and Pending Proceedings

Memorandum prepared in May 1995 at the request of the Finance and Expenditure Select Committee which, at that time, was considering provisions which were later enacted as the Crown Assets Amendment Act 1995.

Introduction

Clause 6(3) of the Finance Bill (No. 4) 1994, if enacted, would deprive the successful plaintiffs and the class of interested persons they represented of the benefit of the judgment they obtained in Carter Holt Harvey Ltd v Attorney-General (CL 39/94, HC Auckland, Barker J, 31 January 1995). Clauses 4 and 5 would make substantive changes to the Crown Forest Assets Act 1989 with effect from 25 October 1989, the date of commencement of that Act. Clause 6(1) declares ("for the avoidance of doubt") that certain licences are deemed to comply and to always have complied with the new provisions, and clause 6(2) provides that two terms are to be deemed to have and always to have had the new meanings stated in the Bill.

This note concerns legislation which responds to court judgments and proceedings. It distinguishes between three broad categories of legislative response:

In fact there are more than those three categories since, for instance, the savings or override provisions might relate to judgments but not to proceedings.

Relevant principles

As that description of the categories indicates, the legislation presents two possible arguments of principle:

The principle of non-retrospectivity is reflected for criminal liability and penalties in section 26(1) of the New Zealand Bill of Rights Act 1990, section 10A of the Crimes Act 1961 and section 4 of the Criminal Justice Act 1985, and more generally in section 20 of the Acts Interpretation Act 1924 and related common law rules. The Law Commission discussed the matters that should be weighed in a decision to give legislation retrospective effect in its report, A New Interpretation Act (NZLC R17 1990 Ch V); see also Burrows Statute Law in New Zealand (1992) Ch 8 and, for a detailed study of legislative practice, Palmer and Sampford "Retrospective Legislation in Australia" (1994) 22 Fed L R 217. In that report the Commission considers in turn the effectiveness of the law, justice, reasonable expectations, responsibility for government and effective administration. This note does not elaborate on those matters - and for instance on their differing significance for proposals for legislation which is declaratory rather than clearly introducing a change to the law or for retrospectivity which is benign rather than imposing obligations - although it does return to them later, paragraphs 15 to 22.

Rather, this note gives greater emphasis to the second matter - the saving or not of judgments and proceedings. The arguments for saving judgments and pending proceedings can be related in part to those supporting the principle of non-retrospectivity. For instance, the Law Commission in considering that principle discussed, under the heading of justice, the claim of the litigant to have the benefit of the judgment:⁽³² A New Interpretation Act NZLC R17 1990 Ch V, para. 216.)

It can often be said that the rights of the litigant to a fair trial have in effect been abrogated after the event (compare chapter 29 of Magna Carta ... and article 14(1) of the International Covenant on Civil and Political Rights). Concrete accrued rights are likely to have been destroyed.

There are, as well, other specific arguments. Thus sections 27(2) and 27(3) of the New Zealand Bill of Rights respectively affirm the rights of persons to seek judicial review of public actions affecting their rights and obligations, and to bring civil proceedings against the Crown and to have them heard in the same way as proceedings between individuals. Regular parties to civil litigation do not have the power or ability to initiate legislation terminating litigation or nullifying its result, although they might, of course, try to promote that course.

An argument based on the principle of the separation of powers can also be made. The independent role of the courts can be put at nought if the legislature superintends the actions of the court and overrides particular decisions, eg for the United States, 46 Am Jur 2d para. 9 - statutes setting aside judgments have been held unconstitutional as attempted legislative exercises of judicial power and as violating the constitutional guarantee of due process of law. But legislation overriding judgments requiring acts to be done in the future have been upheld. Two United States Supreme

Court judgments support those propositions. In McCulloch v Virginia (1898) 172 US 102, 123 to 124 the Court ruled that:

It is not within the power of a legislature to take away rights which have been once vested by a judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases.

By contrast, in State of Pennsylvania v Wheeling and Belmont Bridge Company (1855) 17 How 421, 431, the Court upheld legislation declaring bridges across the Ohio River to be lawful, the Court the year before having declared the contrary under the common law. The Court ruled that that part of the earlier decree which looked to future execution could be overridden by later legislation. To be distinguished from such a decree were, it said, orders for damages for past breach of the free navigation of the river or for costs - Congress could not override such a judgment or order (compare the reservation as to costs in the otherwise nullifying Clutha legislation in paragraph 13(1) below). On the other hand, proceedings challenging legislation to reopen an order of the Cook Islands Land Titles Court, based on constitutional guarantees of equality before the law and the right not to be deprived of property except in accordance with the law, failed in the Cook Islands Court of Appeal, Clarke v Karika [1985] LR Com (Const) 732.

Prospective legislation responding to Court judgments

Legislation in the first of the three categories set out in paragraph 2 above generally presents no problems in terms of the two principles mentioned. After all, it is one of Parliament's major responsibilities to enact law for the future which is different from that stated earlier by it, by other legislatures, or by courts and tribunals. The word "generally" appears in the first sentence of this paragraph since it is sometimes contended that legislation which is apparently prospective has in fact a detrimental impact on rights and situations established in reliance on the old law. The principle of non-retrospectivity might be said to be breached in such cases, eg Lindsay McKay "Taxation and the Constitution" (1985) 15 VUWLR 53. As well the preparation in prospective legislation of the transitional provisions for pending processes can present difficulties, see paragraphs 206 to 207 of the Interpretation report, section 81(3) of the Civil Defence Act 1983, section 430 of the Resource Management Act 1991, section 128 of the Crown Minerals Act 1991, and section 183 of the Employment Contracts Act 1991. Transitional provisions often apply new institutions and procedures to earlier situations (which will, however, still be governed by the old substantive law). That can also happen with provisions which on their face are prospective, as with the wider powers of Inland Revenue Department officers to give evidence conferred hurriedly in 1989 as a case was about to come to trial, Inland Revenue Department Amendment Act 1989 discussed by Simon France, "Retrospectivity and Legislative Interference in Existing Criminal Trials - The West's Fastest Lawmaker Strikes Again" (1990) 16 UQLJ 103.

Retrospective legislation: Its impact on judgments and pending proceedings

The legislation might:

A further variable is that the relevant date in paragraphs 9(a) and 9(b) is sometimes fixed earlier than the date of the commencement of the Bill, for instance at the date of its introduction (when interested parties, it might be said, are put on notice of the change).

Retrospective legislation saving judgments and pending proceedings

There are many instances of the situations in paragraphs 9(a) and 9(b); many, at least, relative to instances of paragraph 9(c). The statutes data base and other limited research identifies the following:

1. Chattels Transfer Amendment Act 1931, section 2: This amendment was backdated to the date of the original Act "save that nothing in this section shall apply to any deed, agreement or chattel which before or at the date of the passing of this Act has been or is the subject of any action or proceeding in any Court of law" (section 2(a), and see similarly section 3 of the Chattels Transfer Amendment Act 1953). According to the 1931 Reprint of Statutes Vol 1, pages 656 to 671, the 1931 Amendment nullified the decision in General Motors Acceptance Corporation v Traders Finance Corporation [1931] GLR 513. According to Hansard the 1953 Amendment was designed to reverse the effect of a judgment given in 1933.
2. Customs Acts Amendment Act 1939, section 11(2): Section 11(1) declared the Import Control Regulations 1938 to be and always to have been valid, reversing the effect of F E Jackson and Co Ltd v Collector of Customs [1939] NZLR 682. Section 11(2) saved that judgment and any others given before commencement - "Nothing in this section shall be construed to affect any judgment heretofore given by any Court." The principal Act was also amended to confer broader regulation making powers for the future.
3. Transport Amendment Act 1965, proviso to section 5(2): This section provided for the validation of certain by laws which were declared to have been lawfully made, with the limit that nothing in the section affected the rights of the parties under any judgment given before the passing of the Act, or any judgment given on appeal, whether the appeal is commenced before or after the passing of the Act (compare section 22(4) of the Transport Amendment Act 1974, section 3(2) of the Transport Amendment Act 1976 and section 2(3) of the Transport Amendment Act (No. 3) 1978, which validate bylaws and regulations with no comparable saving provisions).
4. Town and Country Planning Amendment Act (No. 2) 1971, proviso to section 3(6): This section gave local authorities wide powers to grant waivers and dispensations from its district scheme, reversing the effect of Attorney-General v Mt Roskill Borough [1971] NZLR 1030. Section 3(6) provided that every dispensation and waiver granted before 10 November 1971 (the date the Bill was introduced) under a district scheme was validated and deemed to have been lawfully and properly granted, with the qualification that nothing in the section applied in respect of a court order or judgment given before 10 November or in respect of any proceedings begun before then. See similarly the first proviso to section 4(3) (a provision relating to the Johnsonville tip case, according to Hansard) and section 12(4) of the Town and Country Planning Amendment Act 1972.
5. Fugitive Offenders Amendment Act 1976, proviso to section 9 (see now Imperial Laws Application Act 1988, section 6, Schedule, Part II, Division II and Imperial Legislation in Force in New Zealand (NZLCR 1 1987) paragraph 18, p. 4): Section 4 of the Act "For the avoidance of doubt, ... declared that [the Fugitive Offenders Act 1881 (Imp)] is and always has been in force in New Zealand as part of the law of New Zealand", reversing the effect of Re Ashman [1985] 2 NZLR 224n (decided on 31 May 1976; the legislation was enacted on 15 July 1976 very soon after the beginning of the Parliamentary term, on the same day as the superannuation legislation discussed below, paragraph 21) which held that New Zealand was no longer subject to the Act given the fundamental constitutional changes that had occurred since 1881. Section 9 validated warrants, orders and proceedings made or begun before the commencement of the Act, with the qualification that nothing in this section shall affect the rights of the parties under any order made in any Court or by any Judge before the passing of this Act in proceedings on an application for habeas corpus.
6. Citizenship (Western Samoa) Act 1982, section 5: This Act was designed to implement a protocol signed by the Governments of New Zealand and Western Samoa to deal with the consequences of the decision of the Judicial Committee in Lesa v Attorney-General [1982] 1 NZLR 165. It considerably altered the law stated in that decision, but section 5, in conformity with the decision, declared the litigant in the particular case to be a New Zealand citizen otherwise than by descent. Consistently with principle the Act also made clear that no-one subject to the Act should be prosecuted for overstaying offences allegedly committed before the Act was passed.
7. Subordinate Legislation (Confirmation and Validation Act) 1989, section 7(2): Section 7(1), under a Part heading which reads "validation of invalid [fisheries] notices", deems 30 listed notices made over the previous six years to have been as valid and effectual as if they had been given by the Director-General of Agriculture and Fisheries. The High Court had held the notices to be invalid since they had been given by an Assistant Director-General to whom the relevant power had not been delegated - Webster v Taiaroa (1987) 7 NZAR 1. Section 7(2) provides that nothing in section 7(1) affects the rights of the parties under any judgment given in any court before 1 December 1989. The Bill was introduced on 12 December 1989.
8. Finance Act (No. 3) 1990, section 10(2): Section 10(1) deems valid certain forms and notices relating to transport infringements. Section 10(2) provides that the rights of the parties in any proceedings commenced under the Summary Proceedings Act 1957 before the day on which the section comes into force shall be determined and given effect to as if section 10(1) had not been enacted (see also section 8(1)(b) of the Subordinate Legislation (Confirmation and Validation) Act 1991 (repealed by section 9 of the Subordinate Legislation (Confirmation and Validation) Act 1992).
9. Housing Amendment Act 1992, section 2(2): Section 2(1) inserted a new section 19A providing that leases or tenancies granted by the Housing Corporation shall not be taken to have implied terms and conditions based on the previous government policy that rents be restricted to a quarter of a tenant's income. This amendment overturned the effect of a Tenancy Tribunal decision upholding such a condition (see 528 NZPD 10547). Section 2(2) provides that section 19A shall not affect the rights of any person under any judgment given in proceedings commenced before 21 July 1992, or any appeal from any such proceedings. 21 July 1992 is the date on which the Bill was reported back from the Planning and Development Select Committee, with the proposed section 2(2) included.
10. Finance Act 1993, section 3(3): Sections 3(1) and 3(2) validate certain increases in state house rentals. Section 3(3) provides that nothing in those provisions affects the rights of any person, where proceedings are brought before the close of 2 December 1992, under a judgment, decision or order of a court made originally or on appeal. The date 2 December 1992 appears to have been the date proceedings were filed in Housing Corporation of NZ v Morrison (28 May 1993, HC Auckland, HC 12/92), where Heron J held the increase in state house rentals to have been improperly notified in terms of section 24(3) of the Residential Tenancies Act 1986.
11. Social Security Amendment Act (No. 3) 1993, section 28: Section 28 broadened the criteria applicable to special benefit applications under section 124(1)(d) of the Social Security Act 1964. Section 28(3) preserves any decisions in any Social Security Appeal Authority or Court proceedings commenced before 1 April 1993. The Social Welfare Reform Bill (No. 3) was introduced on 31 March 1993.
12. Child Support Amendment Act 1993, section 4 (also note section 9): Section 3 of the principal Act was amended to allow the Department of Social Welfare to transfer parent-liability assessed at nil under the Security Act 1964 to liability under the Child Support Act 1991. This amendment Act was deemed to have come into force on the day that most of the 1991 Act came into force (see section 1(3) of the 1991 Act). The Courts had held that the Department could not transfer these liabilities, see Ferrie v Ferrie (1993) 10 FRNZ 430 and 534 NZPD 14477 to 14486. Section 4 of the Amendment Act protected the rights of parties under any judgment given in any Court before the Amendment Act was passed.
13. Fisheries Amendment Act (No. 2) 1994, sections 3(2) and 3(3): Section 3(1) declares valid certain assessments; sections 3(2) and 3(3) save both those judgments given on the matter and pending proceedings (which "are to be determined as if the section had not been enacted").
14. Forestry Rights Registration Amendment Act 1994, section 4(3): Section 4(2) deems valid certain contracts and agreements by reference to the new provision; section 4(3) protects orders and determinations of courts and tribunals made before 15 April 1994 and proceedings begun but not determined before then. The 15 April 1994 fell between the dates the Bill was referred to the select committee and was reported back to the House. The amendment, it seems, was designed to reverse the effect of an argument brought in a series of cases beginning with Ngai Terangi Iwi Incorporated Society v Minister of Lands (21 March 1994, HC Wellington, CP 69/93, Greig J).
15. Real Estate Agents Amendment Act 1992, section 5: The Amendment Act reversed the general effect of the Court of Appeal decision in Challenge Realty v CIR [1990] 3 NZLR 42. The Court of Appeal held on 19 July 1990 that real estate salespersons are employees of real estate agents with whom they contracted under a contract of service. Section 2 of the Amendment Act declared that before 19 July 1990 real estate salespersons were independent contractors of real estate agents with whom they had contracted under a contract for services. Section 5 provided that proceedings commenced before 22 August 1991 (the day the Bill was introduced) would not be affected by the provisions of the Amendment Act.
16. Several statutes which have introduced new rules applying to existing, as well as future, agreements or transactions covered by them save judgments already given: Section 11(3) of the Illegal Contracts Act 1970, section 36A of the Administration Act 1969, section 66A of the Property Law Act 1952, and section 2(2) of the Land Transfer Amendment Act 1958; cf the Credit Contracts Act 1981 and Sharplin v Broadlands Finance [1982] 2 NZLR 1 CA.
17. See also the second proviso to section 16 of the Marriage Act 1955, and the second proviso to section 39 of that Act, and the second proviso to section 6 of the Law Reform (Testamentary Promises) Amendment Act 1953.

A significant number of provisions validate invalid administrative actions without including express savings provisions. In many cases - for instance validating invalid contracts (eg, section 2(7) of the Ministry of Agriculture and Fisheries Amendment Act 1990 and Report of the Controller and Auditor-General (1990) AJHR B 1 [PT II] pages 19 to 21), invalid appointments (sections 3 to 5 of the Meat and Wool Board Elections (Validation) Act 1993), payments from one public fund to another (section 3 of the Finance Act 1994), technically irregular processes (section 5 of the Finance Act (No. 2) 1994), where the action appears to be benign (section 6 of the Finance Act 1986, payment of forestry encouragement grants (section 6 of the Finance Act 1988), or payment of pension to the widow of a former Prime Minister - the absence of a savings provision probably presents no issue (see also paragraph 23, and Palmer and Samford).

But in other cases the matter is not clear, for instance:

Retrospective legislation overriding pending proceedings

By contrast to the retrospective provisions which save judgments and proceedings, those which override are limited in number. Some have been controversial because of their negation of the legal proceedings. They include:

1. Clutha Development (Clyde Dam) Empowering Act 1982 which granted certain water rights, in effect overriding the decision of the Planning Tribunal given in response to the earlier judgment of the High Court on appeal from the Planning Tribunal: Annan v National Water and Soil Conservation Authority and Minister of Energy (No. 2) (1982) 8 NZTPA 369; and Gilmore v National Water and Soil Conservation Authority and Minister of Energy (1982) 8 NZTPA 298, discussed by Brookfield ⁽³³ "High courts, high dam, high policy: The Clutha River and the Constitution".) [1983] NZ Recent Law 62. Section 4 of the Act provided that the parties to the litigation were entitled to their costs.
2. Economic Stabilisation Amendment Act 1982, section 9: This provision validated and confirmed certain wage freeze regulations and declared them to be and to have always been validly made under the 1948 Act. The Amendment Act also widened the power to make regulations by making it clear that they could prevail over listed statutes, and that legislation assented to on 17 December 1982 reversed the effect of Combined State Unions v State Services Coordinating Committee [1982] 1 NZLR 742 in which the Court of Appeal gave judgment on 14 December 1982. It is significant, however, that the validation was not to affect any proceedings taken before or after the commencement of the amending Act in respect of an offence committed before that date. That saving recognises that criminal liability should not be created retrospectively and contrasts with the next override.
3. Homosexual Law Reform Act 198,6 section 7(2): The Act altered the substantive criminality of offences under sections 140 to 142 of the Crimes Act 1961. Section 7(1) benignly and retrospectively removed the criminality of pre-enactment behaviour not the subject of a charge at the time the Act was passed, and which, after the Act was passed, no longer constituted an offence. Section 7(2) provides that where persons were charged with offences under sections 140 to 142 before the commencement of the Act that continue to be offences after the Act, proceedings continue as if the Act had not been passed, except that defendants are retrospectively extended the benefit of new defences introduced by the Act.
4. Patents Amendment Act 1992: The Act removed a power (or a near duty) of the Commissioner of Patents to grant compulsory patents in respect of food and medicine. As well, as enacted, it cancelled all pending proceedings and orders and licences made and granted. The Legislation Advisory Committee objected to this as a breach of principle and referred to the parallel United Kingdom legislation which did contain savings provisions (see Issues of Principle, LAC Report No 8 paras 92 to 117).
5. Fisheries Amendment Act (No. 3) 1992: The Act, enacted on 18 December 1992, provides that the Quota Appeal Authority and a Court cannot rule on certain matters if the proceedings were brought or amended after 16 September 1992 in some cases and 5 October 1992 in others. During the very short time the legislation was before Parliament both the Attorney-General and the Legislation Advisory Committee expressed constitutional concerns about it (see Issues of Principle paras 118 to 132).
6. Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, section 11: Under this section certain listed proceedings were terminated, and all interim orders made and all undertakings given in those proceedings were cancelled; certain declarations under section 28B of the Fisheries Act 1983 were declared to be and always to have been valid; section 9 declared that certain claims ... whether or not they had been the subject of adjudication by the Courts or any recommendation from the Waitangi Tribunal were finally settled and accordingly ... no court or tribunal had jurisdiction to inquire into the claims; the Preamble to the Act referred, among other things, to the proceedings (see especially Preamble paragraphs (c) to (d) and (g) to (i)) and to the deed of settlement which had been entered into, one element of which was that the implementation of the deed would constitute a full and final settlement of all Maori claims to commercial fishing rights (see especially Preamble paragraphs (e) and (l)(viii)); and the Bill was the subject of tribunal and court proceedings - The Fisheries Settlement Report 1992 (Wai 307), Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 CA.
7. Human Rights Amendment Act 1994, sections 2(3), 3(3) and 5(2): These provide that the three sections apply notwithstanding any judgment, decision or order of any Court or Tribunal given or made before or after the commencement of the Act in proceedings commenced before or after that commencement. Section 2 is written with declaratory effect - nothing in certain sections should prevent or be taken ever to have prevented certain provisions in a superannuation scheme. Section 3 takes a clearer declaratory form - for the avoidance of doubt, it is hereby declared that certain provisions shall not prevent or be taken never to have prevented certain superannuation scheme provisions. Section 5 is only retrospective - nothing in certain provisions shall be taken ever to have prevented certain benefits; and section 4 also uses "for the avoidance of doubt - declared" wording, but has no provision relating to judgments or pending proceedings. This Amendment Act was a response to the judgment in Coburn v Human Rights Commission [1994] 3 NZLR 323 that the Human Rights Act made unlawful certain provisions of superannuation schemes, providing for benefits for surviving spouses and children.
8. Summary Proceedings Amendment Act 1992, section 3; District Courts Amendment Act 1981, section 2; and District Courts Amendment Act 1982, sections 3 and 4: These statutes regularise irregularities - the first the unintended failure to confer jurisdiction on District Courts in respect of certain offences (see 528 NZPD 10619 to 10620), and the second and third the unintended failure to appoint certain areas as places where District Courts, Children and Young Persons Courts, and Small Claims Tribunals could exercise jurisdiction. The relevant amendment to the schedule of offences was deemed to have come into force on the appropriate earlier date, and the Governor-General was deemed to have made the relevant appointments from the relevant time. The legislation continues, nothing done is to be "held a nullity or to be otherwise invalid" because of the irregularity which has now been cured. The consequence is that a litigant in those courts could not raise the defect of jurisdiction (see also section 11 of the Tokelau Amendment Act 1976).

One major United Kingdom controversy about the overriding of judgments concerns the War Damage Act 1965 which reversed the law as stated in Burmah Oil Company v Lord Advocate [1965] AC 75 and provided for the termination of proceedings relating to the issues. The latter provision followed the model of United Kingdom and colonial Indemnity Acts (such as those enacted in New Zealand in 1866 and 1882 and in Jamaica, considered in Phillips v Eyre (1870) LR 6 QB1). Professor Goodhart ((1966) "The Burmah Oil Case and the War Damage Act" 82 LQR 97) in commenting on the Burmah Oil case, and the statute, concluded that "the basic principles against retroactive legislation were reaffirmed in no uncertain terms, but, on the other hand, it was recognised that, in certain circumstances, justice might require such legislation".

Relevant factors

The question whether judgments already given should be saved or overridden arises only if the legislation is retroactive. The effect of new legislation on pending proceedings can arise even if it is only prospective (paragraph 8 above), but the concern here is with retrospective legislation which in practice might also override or save judgments and proceedings under the old law. Some of the factors which bear on that prior issue of retrospectivity may as well be relevant to the second issue of overriding judgments and proceedings. The LAC draws on some of the matters considered by the Law Commission in its consideration of retrospectivity.

Justice and effectiveness

The principle against non-retrospectivity is strongest in the case of criminal liability. The New Zealand Bill of Rights Act 1990 makes that clear. It is unjust, after the event, to make criminal and subject to penalty acts which were lawful when they were done. As well, since the criminal law is intended to be a guide to our actions, retrospective criminal law is also ineffective - people cannot adjust their actions to law which has not yet been written, eg Fuller, The Morality of Law (rev ed 1969) Ch 2. That second argument is not as strong in the case of invalid regulations; they were after all in fact in the books. They were there to guide and control. But the principle nevertheless still has force and the transport and economic stabilisation legislation mentioned in paragraphs 10(3) and 13(2) supports that limit. On the other hand, in many cases that exception has not been made expressly or has not been made in wide enough terms. It may be that the exception would be made as a matter of interpretation in some cases of silence, especially given the provisions of the Bill of Rights Act and associated legislation (paragraph 4 above). But if Parliament is to have a clear role, the proposed savings or override should be made explicit to it.

Reasonable expectations

By contrast, in some situations, the general understanding may have been that the law was to the effect that Parliament is now stating. That understanding can be reflected in the declaratory wording of the measure, as in the fugitive offenders legislation (paragraph 10(5)). In such situations the overriding of pending proceedings and judgments and the validation of proceedings decided on an erroneous basis might be justified; although as the fugitive offenders example shows even then savings might properly be made (if on a narrow basis) to maintain the position of those who successfully challenged the general understanding. The courts legislation also indicates the scope of the principles about retrospective criminal law - the actions in question were criminal at the relevant time (paragraph 13(7)). The retrospective element related only to the institutions. The common law has the related doctrine of the de facto officer, eg In re Aldridge (1893) 15 NZLR 361, and many statutory provisions similarly prohibit or limit challenges to appointments (see also paragraph 27 and also Clarke v Karika [1985] LRC (Const) 732, 749(i)).

The European Court of Justice has developed the related legal principle of certainty. For instance, it limited its annulment of a minimum selling prices decision to the particular applicant "for reasons of legal certainty and taking special account of the established rights of the participants in the invitation to tender whose tenders have been accepted" in Simmenthal [1979] ECR 777, discussed by Wyatt and Dashwood The Substantive Law of the EEC (2d ed 1987) 63. The LAC, in its advice on the real estate legislation (paragraph 10(15) above), considered that retrospective operation was legitimate in that case as the Bill was declaratory and stated the general understanding, and was not destructive of rights which had been understood to exist. But it also suggested that the provisions should save prior judgments and proceedings already commenced. As well, the tax position might need special consideration.

The nature of the individual right or interest

In the fugitive offenders case (paragraph 10(5)), personal liberty and the associated writ of habeas corpus are in issue. At first the case appears to be analogous to that of criminal liability. But is that really so? Extradition legislation can be and was in that case seen as procedural. New extradition law can apply to earlier offences as appears for instance in the retrospective wording of article 18 of the extradition treaties with the United States (1970) and Fiji (1992). Consistently with that, section 9 of the 1976 fugitive offenders legislation validated actions taken under the 1881 Act; as well, proceedings commenced under it "may be continued and dealt with under the [1881] Act as amended by [the 1976] Act". It was only those who, before the new Act came into force, had succeeded in habeas corpus proceedings that kept the advantage of the law as declared by the Supreme Court. The New Zealand Law Society in its submission on the Bill accepted that matters under the fugitive offenders legislation are procedural in nature and therefore did not object to the retrospective effect of the clause (see 403 NZPD 641). Other rights or interests might be similarly less significant; consider the limited interest that a member of a body might have in the technical regularity of appointments or elections to its governing board.

Responsibilities for Government

If the argument for retrospectivity has been accepted as a general proposition, that acceptance might be undermined or even negated by a savings provision. That appears to be the position in the human rights (superannuation) and economic stabilisation cases mentioned (although in the latter use criminal proceedings could be saved - in the sense that a defendant to a criminal charge could still plead the old law, that is that the regulations were invalid (paragraphs 13(2) and 13(7). Very rarely the only point of the legislation is to override the particular judgment as in the Clutha case (paragraph 13(1)). The legislation might also be based on a broadly applicable and accepted agreement which supersedes pending litigation while setting out a new regime for the future; the Sealords legislation (paragraph 13(6)) can be characterised in that way.

In such cases the public interest might be seen as uppermost and as allowing no room for the protection of judgments with continuing effect and proceedings under the old law. Indeed, the Government's course of action might require that such effects and proceedings be prevented. The legislation dissolving the New Zealand Superannuation Scheme enacted on 23 July 1976 provided that no action or other proceedings, civil or criminal, could be brought against various individuals for failing to meet certain obligations under the 1974 Act from 16 December 1975 - the day after the Prime Minister announced that the scheme would be abolished. The Supreme Court in Fitzgerald v Muldoon [1976] 2 NZLR 615 on 11 June 1976 had declared that that announcement was unlawful, but it adjourned the balance of the proceedings for six months and granted no coercive remedy - "it would be an altogether unwarranted step to require the machinery of the [1974 Act] now to be set in motion again, when the high probabilities are that all would have to be undone again within a few months" when the proposed legislation was enacted (a matter on which there was "little doubt"). The Attorney-General had also in April 1976 stayed private prosecutions brought against employers for failing to meet their obligations under the 1974 Act; eg, "Superannuation: Retrospective Termination" [1976] NZLJ 268. That action too was based on the Government's declared intention to promote legislation repealing the 1974 Act. Like that stay the effect of the 1976 legislation was to prevent legal action being brought in respect of any breach of the 1974 Act from the date of the press announcement through to the date of repeal of that Act. Accordingly the Supreme Court proceedings came to an end, but with a costs order being made against the Government, see paragraph 7 above.

In a more recent case, the Court refused to grant a remedy where general validating legislation was in immediate prospect (the Bill had its Third Reading two days before judgment was given and assented to six days later) and where the legislation was generally accepted by the House as overwhelmingly necessary, Turners and Growers Exports Ltd v Moyle (CP 720/88, Wellington, December 1988, McGechan J), discussed by Liddell "Administrative Law" [1989] NZ Recent Law Review 105, 107 to 110, and by Brookfield "Constitutional Law" [1989] NZ Recent Law Review 217, 225 to 226. The regulations in that case, made under the Primary Products Marketing Act 1953, are among the limited group which require confirmation by Act if they are to remain in force.

Conclusions

The propriety of the overriding of judgments and proceedings cannot be kept separate from the broader issue of retrospectivity. As the recent Australian study by Palmer and Sampford indicates, discussions of retrospectivity are most convincing if related to the legislative practice. This note considers principally that retrospective legislation which, as well, expressly either protects or overrides judgments and legal proceedings. Only about 40 such provisions have been mentioned. They are principally those which have been discovered through a computer search. If the search is extended to retrospective legislation generally, the number becomes much larger. A search of the Status statutes database (which is limited to legislation which is in force or has been in force during the last two or three years) on 4 May 1995 for the wording "deemed to have come into force" revealed 196 entries. Some of the 40 provisions mentioned above are among those statutes.

Those additional instances help emphasise that a great number of retrospective provisions are seen as having only a benign effect; those which validate appointments, provide for backdated salary and benefits payments and new superannuation arrangements, and validate rating schemes and other local government actions (these latter two categories may create greater controversy). They are not seen as requiring savings provisions; indeed, to allow proceedings under the old law would be malign.

But of course not all retrospective legislation is benign in its effects. Not all of it states what everyone had assumed to be the case with the result that they relied on that assumption. Indeed, this paper considers situations where litigants took advantage of the earlier and (for them) more favourable state of the law; the litigants, as well, have not relied on others' erroneous assumptions. The balance of fairness may be wrongly altered by retrospective overriding, fairness being a central element in this law, as recently emphasised as well in the House of Lords in Plewa v Chief Adjudicator's Office [1994] 3 WLR 317.

In two cases it is clear that the old law and the judgments and proceedings under it should be protected. The first is where criminal liability or penalty might be imposed under the new (restoring or validating or declaring) law. If the legislation under which a person is being prosecuted did not validly create an offence at the time of the action, new legislation should not allow that. The principle that there is to be no crime or penalty without a law requires that. That principle is to be seen fully worked out in the economic stabilisation and Samoan citizenship legislation (paragraphs 13(2) and 10(6)). In other cases it is reflected, but not adequately.

There is an apparent exception to the proposition just stated in recent war crimes legislation enacted in Australia, Canada and the United Kingdom. That new legislation applies to offences committed 50 years ago. This exception is only apparent: the actions in question were "criminal according to the general principles of law recognized by the community of nations" (to quote the relevant terms of the International Covenant on Civil and Political Rights 1966, article 15(2)). What the legislation does is to provide another jurisdiction to deal with these serious offences. Parliament is being asked to agree to the principle in the war crimes legislation for former Yugoslavia and Rwanda, International War Crimes Tribunals Bill 1994 which applies to offences committed before the Tribunals were established. See also Palmer and Samford pages 248 to 253 and the discussion of the fugitive offenders legislation, paragraphs 10(5) and 19 above.

A second situation in which the judgment and proceedings under the old law should be protected is where the judgment which has been obtained or is being sought can be given effect to without undermining the purpose requiring retrospectivity. Mr Jackson could have an order for the kerosene pumps he wished to import, and (if necessary) for money damages in respect of their wrongful detention (paragraph 10(2)); Mrs Lesa could retain her citizenship (paragraph 10(6)); Mr Ashman and Mr Best could continue to have the benefit of their habeas corpus orders (paragraph 10(5)) - in all cases without prejudicing the general validating effect of the legislation.

The situation contrasting to that just mentioned is where the maintenance of the judgment would undermine or perhaps completely nullify the retrospective legislation. That is to say, the arguments for retrospectivity and judgment override become the same. This situation will arise when the remedy given by the judgment is both prospective and broad; a general declaration that wage freeze regulations are invalid cannot stand with legislation validating them (paragraph 13(2)). By contrast, a narrow prospective judgment (for instance favouring Mrs Lesa and no-one else) might also be able to stand with legislation which generally overrides the law as stated in the judgment. That saving approach is supported by the principles mentioned at the outset (paragraphs 5 to 7) - about the rights of litigants and the relationship of the Court to the Legislature.

Accordingly, in the case of the forests assets legislation there are two related questions:

One matter relevant to the first question is the understanding of the legal position - was the law originally assumed to be to the same effect as is now proposed? Did the various parties rely on that? On the other side is the character of the interests in issue - is this not essentially a bilateral, contractual situation in which there is no wider public interest and in which, moreover, one party to the contract has a major advantage not available to the other in promoting legislation (in apparent breach of the principle reflected in section 27 of the Bill of Rights (paragraph 6 above))? On the second question, what is the general effect of the judgment? In particular, for how long will the judgment have effect and what is the membership of the successful class?

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