Commercial, contract and civil liability law are in the cut for modification and amendment in the Revision Bill programme for the 2015 to 2017 Parliamentary term.
The full list of legislation to be revised can be found here.
A new mechanism for statute revision
Revision Bills may do things like remove typos or redundant provisions, renumber or rearrange Acts, change language and punctuation, and provide new purpose provisions. But there is only very limited scope for them to seek to change the substantive effect of the legislation they replace.
Specifically, they can update monetary amounts to reflect movements in the Consumer Price Index, or make “minor amendments to clarify Parliament’s intent, or reconcile inconsistencies between provisions”.
The Legislation Act 2012 requires the Attorney-General to prepare a draft three-yearly programme of Revision Bills for approval by the Cabinet for presentation to Parliament.
Each Bill must be drafted by the Parliamentary Counsel Office (PCO) and certified by an expert panel as an appropriate exercise of revision powers and not changing the effect of the law except as authorised, before it is introduced to the House of Representatives.
The expert panel is the President of the Law Commission, the Solicitor-General, a retired High Court Judge (the current nominee is Hon John Priestley CNZM QC) and the Chief Parliamentary Counsel.
The Bill then goes through the usual legislative process, but presumably with greater than usual alacrity, given its subject matter and advance scrutiny. That said, Parliament can amend revision Bills for any purpose, including to change the law.
In the programme for this term are 18 statutes, including the commercially significant Contractual Remedies Act 1979, Sale of Goods Act 1908, and Law Reform Act 1936.
Chapman Tripp comments
Announcing the first Revision Bill programme, Attorney-General Christopher Finlayson last week described it as “a banner day for the New Zealand statute books”. He said it would make the law clearer and more accessible, and would reduce regulatory costs.
We agree the programme has potential to deliver these benefits. But it also raises some interesting constitutional issues.
First, revision Acts may disturb the accepted relationship between Parliament and the courts. It is the courts’ role to interpret Parliament’s intention. But the revision process gives Parliament the opportunity to reassert what it says its intention was all along, irrespective of what the courts may have said.
Second, revision Acts create the possibility for unintended changes of meaning. Revision Acts are deemed “not intended to change the effect of the law as expressed in the Acts … repealed by and incorporated in the revision Act”, except if they expressly provide that a particular provision is intended to change the effect of the law.
Even with that instruction, what is a court to do when faced with new legislation that is irreconcilable with the old? No palatable compromise seems available – either the new legislation is to be construed as consistent with the old, which undermines the intention of the former; or the new legislation is to be given primacy over the old, which guts the latter.
Third, the first-up candidates for the Revision Bill treatment are far from being in a state of legal certainty. See, for instance the Supreme Court’s recent decision on the interpretation of the Contractual Remedies Act in Kumar v Station Properties, which added to the jurisprudence on essentiality of contractual terms. This puts a heavy responsibility on the PCO accurately to anticipate legislation’s meaning, the case law on which is still developing.
We advise on the interpretation of many of these statutes daily, and will be watching developments closely.
Our thanks to Jeremy Upson for writing this Brief Counsel.
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