LEGISLATION ADVISORY COMMITTEE

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

OMNIBUS BILLS

General comments on omnibus bills

The LAC acknowledges that omnibus bills have a useful function in providing a vehicle for the legislature to implement minor reforms, to make technical improvements and to correct mistakes in legislation; for instance, by means of Law Reform (Miscellaneous Provisions) Bills and Statutes Amendment Bills. Equally clearly, however, such bills have their drawbacks and may be used inappropriately.

For instance, the Committee considers that, in general, omnibus bills amending a large number of unrelated statues should not contain significant policy changes. The LAC believes there is a risk that substantive policy reforms included in an omnibus bill with many other provisions of a truly minor or technical nature will not be subjected to the same degree of public and political analysis that they would have as "stand alone" legislative proposal.

Firstly, there is a general expectation that only minor amendments are included in such bills, interest groups that are not sufficiently well-informed, well-organised, and well-resourced may not be aware of the inclusion of any relevant substantive measure and miss opportunities to prepare submissions on the bill.

Secondly, the question could be asked whether the convenience of omnibus bills offers a temptation to policy-makers to include provisions that may not always be strictly necessary or well thought through.

The Committee notes that a substantive submission to the Standing Orders Committee by the Clerk of the House of Representatives ⁽¹⁷ September 1994, paras. 14 to 17.) also referred to difficulties posed by omnibus bills and made a number of recommendations which are generally in harmony with the LAC's views.

The LAC also notes that, since this report was drafted, a new set of Standing Orders came into force on 20 February 1996 - Standing Orders of the House of Representatives 1995. These new Standing Orders limit the types of omnibus bills that may be introduced and the changes should avoid many of the concerns the Committee has expressed below.

Law Reform (Miscellaneous Provisions) Bill (No. 3) 1994

The Committee considered that this bill illustrated several of the difficulties posed by omnibus legislation. The Bill assembled amendments to 27 different statutes. These amendments varied both in their subject matter and their substantive significance.

Statutes amended by this bill were:

• Citizens Initiated Referenda Act 1993 (clauses 2 to 16);
• Criminal Justice Act 1985 (clauses 17 and 18);
• Customs Act 1966 (clauses 19 to 21);
• Disputes Tribunal Act 1988 (clauses 22 and 23);
• District Courts Act 1947 (clauses 24 and 25);
• Forestry Rights Registration Act 1983 (clauses 26 and 27);
• Forests Act 1949 (clauses 28 to 35);
• Gaming and Lotteries Act 1977 (clauses 36 and 37);
• Guardianship Amendment Act 1991 (clauses 38 and 39);
• Human Rights Act 1993 (clauses 40 to 42);
• Juries Act 1981 (clauses 43 to 46);
• Land Transfer Act 1952 (clauses 47 and 48);
• Law Practitioners Act 1982 (clauses 49 and 50);
• Marriage Act 1955 (clauses 51 to 53);
• Motor Vehicle Securities Act 1989 (clauses 54 to 58);
• Newspapers and Printers Act 1955 [repeal of] (clauses 59 to 62);
• New Zealand Maori Arts and Crafts Institute Act 1963 (clauses 63 and 64);
• Passports Act 1992 (clauses 65 to 67);
• Police Act 1958 (clauses 68 and 69);
• Private Investigators and Security Guards Act 1974 (clauses 70 to 89);
• Property Law Act 1952 (clauses 90 to 92);
• Securities Act 1978 (clauses 93 and 94);
• Statistics Act 1975 (clauses 95 and 96);
• Status of Children Act 1969 (clauses 97 and 98);
• Summary Proceedings Act 1957 (clauses 99 to 107);
• Superannuation Schemes Act 1989 (clauses 108 and 109); and
• Tariff Act 1988 (clauses 110 to 112).

The LAC commented on 14 of the Bill's provisions, three of which are discussed below to illustrate the Committee's concern about substantive reforms being included in omnibus bills. A fourth amendment in the Bill, to the Guardianship Amendment Act 1991, is discussed in Section III, International obligations.

Criminal Justice Act 1985

Clause 18 of the Bill amended the Criminal Justice Act 1985 by inserting a new section 84(2A). This new provision extended the application of section 84 by providing for a presumption of confiscation of the motor vehicle used in, or in relation to, the commission of a second stated qualifying serious traffic offence within a five year period. The Committee considered that this amendment was an ad hoc addition to existing sentencing powers.

It questioned whether departmental officials had directed their attention to the extent to which existing related powers were actually used, and to the whole sentencing regime and its aims. It was not clear to the Committee from the Bill whether the aim of the new provision was primarily punitive, or whether it also had some road safety objectives.

Whatever the goal of these provisions, it is relevant to note the fact that, as stated by John Bailey⁽¹⁸ John P M Bailey, A study of Road Accident Victims in New Zealand Aged 13 to 18, ACC Research Report: No 104, August 1988.),

This suggests that any new provisions in this area should be based on whatever empirical data were available: for example, the extent to which young male drivers have an ownership interest in the cars they drive, the number of people who commit two offences within a five year period, and the kinds of offences committed.

It was clear from information from the Policy and Research Division of the Department of Justice that present powers to confiscate vehicles were not used significantly. For instance, in 1992 there were 46 confiscation orders. This was a small percentage of the total convictions for offences for which confiscation may be ordered (such as driving with excess alcohol or driving while disqualified). In 1992 there were 21,124 convictions for excess alcohol and 9,558 convictions for driving while disqualified (Vitolio v Police [1994] 3 NZLR 210, 213). The Committee suggested that it would be helpful to have information on the reasons for such under-utilisation of existing powers and whether they might be as likely to apply to extended confiscation provisions even where the Courts are required to order confiscation as a more general rule.

The new provision also concerned the Committee because it was retrospective in effect, which is contrary to the legal principles applicable to criminal sanctions, and to section 26 of the New Zealand Bill of Rights Act 1990. The LAC therefore recommended that if the provision was maintained it be along the following lines: "If a person is convicted of an offence which took place on or after the commencement of sections 17 and 18 ...".

The LAC took the view that, because the proposed amendment was substantive, as it was an ad hoc addition to sentencing powers and it could be retrospective in effect, it should not have been included in an omnibus bill. The Committee also noted, in relation to the need to examine these issues in a relatively comprehensive and principled manner, that work had already begun on revising land transport rules and that this revision might well have some relevance to these provisions.

Customs Act 1966

The LAC believes that there is a need for a general approach to be taken to issues of the enforcement of Crown debts and the priority of debts, including Crown debts upon bankruptcy, insolvency and receivership. At present, different regimes are established for specific statutes and industries, perhaps because they have been amended in an apparently uncoordinated way. The Committee considered that clause 20 of the Bill, which inserted:

was illustrative of this less coordinated style of legislative amendment.

The Committee believes that these, and similar, issues are more appropriately addressed in the context of a general review of insolvency law, which the LAC understood was being considered at that time. The Committee recommended that attention should be given to a broader consideration of the enforcement of Crown debts.

Land Transfer Act 1952

Clause 48 of the Bill proposed amendments to the law on obtaining title to land by adverse possession (clause 48(2), and to the closely related matter of obtaining a prescriptive title to land under the Land Transfer Act 1952 (clause 48(1)).⁽¹⁹ In the present report, as in the Explanatory Note to the Bill, "joint owners" is conveniently used to refer to the two classes of freehold (fee simple) owners affected by the reform (joint tenants and tenants in common, in the technical terms necessarily used in the legislation).) The Explanatory Note to the Bill states that the effect of the clause:

Thus the clause was intended to remove the technical difficulties that impeded one joint owner from obtaining, as against another joint owner, title based on adverse possession or prescription. It is convenient in this case to state at the outset the legislative outcome. The clause was modified in part to clarify its retrospective operation (see paragraphs 135 and 136 below), but the LAC's submission was not otherwise successful. As modified, the clause has been enacted as section 2 of the Land Transfer Amendment Act 1995.

The Committee understood that the Law Commission's proposals for reforming the Limitation Act 1950 ⁽²⁰ Limitation defences in Civil Proceedings (NZLC R 6, 1988).) were, at that time of the submission on the Bill, before the Minister of Justice. The Committee understands that this is still the case. The Law Commission's report proposed the abolition of the doctrine of adverse possession by repealing provisions in the Limitation Act 1950. In this context, the Committee considered that the Bill should have explained the justification for implementing just one aspect of that proposed reform. The LAC, therefore, suggested to the select committee that this amendment should be considered in the light of these wider reform proposals.

The LAC had a second concern. The Explanatory Note to the Bill stated that:

The reference in the Explanatory Note to this recommendation which was contained in the PLERC report on Prescriptive Title for Co-owners in Possession, and the statement in paragraph 131 could perhaps be taken to mean that this amendment to the Land Transfer Act 1952 was generally to implement recommendations of that report.

But that was not in fact the case, as some important PLERC recommendations were either given doubtful effect or not included in the Bill at all. The LAC, generally supporting the PLERC report and its recommendations, therefore raised a number of points with the select committee and in later comments (made by way of response to criticisms of the submission).

The LAC's submission and comments bore fruit to some extent, insofar as, correcting obscurity in the Bill as introduced, section 2 of the Land Transfer Amendment Act 1995 makes clear its retrospective operation. (Thus, for the purposes of that section a period of adverse possession of one joint owner against another, beginning before the Act came into force on 30 March 1995 (the date of assent), is within the section whether the period was still running at that date or had previously expired).

It should be mentioned that the remedial nature of the provision justifies its being retrospective. So far as the general law on acquiring title by adverse possession is changed, the change is intended to do no more than remedy the clearly inadvertent omission from the Limitation Act 1950 of the substance of section 12 of the Real Property Limitation Act 1833 (UK), which had previously been in force in New Zealand.

Whether the change has otherwise (that is, apart from the matter of retrospective operation) been satisfactorily made is another question. The Committee does not think it has been and, in particular, is concerned that the enactment of section 2 of the Land Transfer Amendment Act 1995 has proceeded, without adequate reason given, in disregard of the following two important PLERC recommendations, to which the Committee drew attention and which it supported.

First, PLERC's recommendation that section 6 of the Limitation Act 1950 should be amended so that that Act is expressly made subject to the Matrimonial Property Act 1976 was disregarded. This was presumably in reliance on section 4(3) of the latter Act, which purports to make subject to that Act all other legislation (whenever passed) in the absence of expression provision to the contrary. It is doubtful whether section 4(3) can thus control legislation passed after the Matrimonial Property Act. Husband and wife are often joint owners of land and, like PLERC, the Committee thought it important that the relationship between statutory regimes should be clarified. The LAC remains strongly of that opinion.

Secondly (without going into detail unnecessary for present purposes), the wording recommended by PLERC for the amendment of section 13 of the Limitation Act 1950 and of the Land Transfer Amendment Act 1963 was, for reasons that puzzle the Committee, not used in the Bill and the 1995 Act. The recommended wording for the new section in section 13 was:

Similar wording was recommended for new section 3(3) of the Land Transfer Amendment Act 1963. In both cases the recommendations were disregarded in favour of formulae (in the Bill and the Land Transfer Amendment Act 1995) that made no use of the emphasised words and, in essence, simply enabled one or more joint owners to "take ... adverse possession of the land as against the other" joint owner(s). The formulae used have the advantage of brevity, but do not have the far more important advantages mentioned in the next paragraph.

As the LAC pointed out in its submission and further comments, the emphasised words in the PLERC draft have the double advantage of showing the nature of adverse possession as between joint owners and of embodying a concept (that of a joint owner taking possession of more than his or her share) which:

In particular, the rejected PLERC draft essentially followed section 12 of the 1833 Act and section 38(5) of the Limitation Act 1969 (NSW), the latter being a restatement of the substance of the former provision. Further (and contrary to the misapprehension under which the Bill appeared to have been drafted) the concept is one with which the Courts are familiar and which appears to have caused no theoretical difficulties. (Here the LAC referred the select committee to the judgment of the Privy Council in Paradise Beach Co v Price-Robinson [1968] AC 1072 and cases on section 12 of the 1833 Act there discussed.)

There was no statement in the Explanatory Note to the Bill of the reasons for departing from the PLERC recommendations in the ways mentioned above. In the Committee's opinion it would have been preferable if there had been such a statement - especially since the PLERC report was mentioned in the Explanatory Note. The reasons (so far as the Committee has become aware of them) were not adequate ones for departing from the PLERC recommendations and drafts, strongly supported in part as they are by overseas precedent.

Comment

It was the Committee's view that the proposed amendments to the three statutes discussed above should not have been included in an omnibus bill.

The amendments to the three statutes discussed above, and to the Guardianship Amendment Act 1991 discussed in Section III, were not of a truly minor or technical nature. They dealt with substantive changes that might well have attracted more public and political debate (or at least much more professional concern) had they been the subject of `stand alone' amendments to the relevant Acts. Further, amending legislation that seeks to make significant amendments a wide range of unrelated statutes increases the risk that, because attention may be narrowly focused on just one or two provisions in each statute, the resulting amendment(s) may adversely affect that legislation viewed as a whole. Such amendments should not be included in omnibus bills.

The new Standing Orders of the House of Representatives state (Standing Order 254) that every bill must relate to one subject only unless otherwise permitted by Standing Orders [italics the LAC's]. Standing Order 256 does allow some types of bill to relate to more than topic and, where appropriate, amend more than one Act, subject to the rules in respect of each type stated in various Standing Orders. So, for example, law reform or other omnibus bills may amend more than one Act where those Acts deal with an interrelated topic that can be regarded as implementing a single broad policy or where amendments being effected to the different Acts are of a similar nature in each case.⁽²¹ Standing order 257(a) and 257(b).)

The Law Reform (Miscellaneous Provisions) Bill (No. 3) 1994 could not be regarded as implementing a single broad policy, or as effecting amendments to similar Acts of a similar nature. The new Standing Orders should therefore prevent a variety of substantive and quite unrelated amendments to a range of Acts being included in a single omnibus bill, thereby reducing the concerns about such bills that the Committee has expressed above.

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