Statute Law Review 28(1), 1–33, doi:10.1093/slr/hml011
© The Author 2007. Published by Oxford University Press. All rights reserved.
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‘The enactment is self-explanatory …
or is it?’—Explanatory Provisions in
New Zealand Legislation
Introduction
This article is about ‘explanatory provisions’ in New Zealand legislation.
It discusses
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what explanatory provisions are and why they are operative provisions;
how explanatory provisions differ from other, regular operative
provisions;
the limited purpose of explanatory provisions;
arguments, based on drafting style, against and for use of explanatory
provisions;
alternatives to use of explanatory provisions;
different kinds of explanatory provisions used to date in New Zealand
legislation;
associated provisions on the status, in interpretation, of explanatory
provisions; and
considerations for drafters contemplating using explanatory provisions.
New Zealand legislation increasingly contains explanatory provisions. This
article explains why: if used appropriately, they can help readers to understand
(interpret and apply) that legislation. It cannot be said, however, that explanatory
provisions are without their critics or their pitfalls.
* Parliamentary Counsel and † Summer Clerk, New Zealand Parliamentary Counsel Office, Wellington, New Zealand (NZ PCO); ross.carter@parliament.govt.nz. The authors acknowledge, with gratitude, the contributions made to this article by their colleagues at the NZ PCO. The text of most of
this article was finalized on 17 May 2006.
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R O S S C A RT E R * A N D M AT T H E W G R E E N †
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Explanatory Provisions, Their Limited Purpose, and Regular
Operative Provisions
An ‘enactment’ is defined by section 29 of the Interpretation Act 1999 as the
whole or a portion of an Act or regulations.1 Section 5 of that Act is as follows:
5 Ascertaining meaning of legislation
(2) The matters that may be considered in ascertaining the meaning of an
enactment include the indications provided in the enactment.
(3) Examples of those indications are preambles, the analysis, a table of
contents, headings to Parts and sections, marginal notes, diagrams, graphics, examples and explanatory material, and the organisation and format of
the enactment.
Compare: 1924 No 11 section 5(j).
Enactments are or contain provisions.2 Provisions are basic units (or ‘building
blocks’), usually of text. They may be in the body or a schedule of an enactment
and may be independent or grouped (e.g. in a subpart or Part). They are often
called clauses, regulations, rules, or sections. However all ‘indications provided
in’ an enactment, whether basic blocks of text or not, may be considered in ascertaining the meaning of the enactment. It is interesting to consider the relationship
between the different concepts mentioned in section 5. An enactment is or
includes text, but indications (which may themselves also be or include text)
can also be ‘provided in’ an enactment. A Court of Appeal decision suggests that
section 5 ‘makes clear that recourse to such indications is permissive; it is not
mandatory’.3 But the Court was concerned less with ‘consideration’ of these indications than ‘the weight to be accorded to them’ and did not discuss the origins
and purpose of section 5(2) and (3). Section 5(2) and (3) were recommended
and enacted to remove restrictions preventing consideration of these indications,
and so to make it clear that an enactment, for the purposes of interpretation,
1
2
3
Compare FAR Bennion Statutory Interpretation: A Code (4th edn Butterworths London 2002)
(‘Bennion’), 337: ‘an “enactment” is a legal proposition laid down in an Act or other legislative
text …’. See also Bennion’s Understanding Common Law Legislation—Drafting and Interpretation
(OUP 2001), 16–17: ‘An enactment is a single proposition contained in an assemblage of propositions such as an Act of Parliament or statutory instrument’.
The Oxford English Dictionary (http://www.oed.com/, accessed 24 April 2006) gives these definitions: ‘provide, v… c. To make it, or lay it down as, a provision or arrangement; to stipulate that.’
and ‘provision, n… 8. Each of the clauses or divisions of a legal or formal statement, or such a statement itself, providing for some particular matter; also, a clause in such a statement which makes an
express stipulation or condition; a proviso.’
R v Panine [2003] 2 NZLR 63 [38].
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(1) The meaning of an enactment must be ascertained from its text and in
the light of its purpose.
Explanatory Provisions in New Zealand Legislation
3
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operative components and
descriptive components (which are either amendable or unamendable).
‘Operative components’, says Bennion, are those components of an enactment
which constitute a pronouncement of the law as intended by Parliament. They
carry the direct message of the legislator. Operative components are, Bennion
says, ‘obviously by far the most important’ because they carry the legislative
message, that is, what the provision is attempting to achieve.5 It therefore follows
that all other components of an enactment are of a subservient nature, that is they
serve as commentaries on, or explanations of, the operative components.6 Operative components are most critical in interpretation because they ‘do the [main]
legal work’, whether that work is to prohibit, require, authorize or enable, declare, or constitute.
‘Descriptive components’, by contrast, are those which describe the whole or
part of the enactment. (They are ‘amendable’ if subject to amendment when the
Bill or subordinate legislation is being considered by Parliament or its delegate
before it is assented to or made and becomes law and ‘unamendable’ if not subject to amendment at all because they are added only after the Bill is passed or the
subordinate legislation is made.)
Examples of amendable descriptive components are provisions like the Title of
an enactment, any preamble, and any purpose or objects provision. All of these provisions are descriptive in the sense that they do not themselves do any ‘main legal
work’, but exist merely to aid the understanding of the enactment as a whole.7
Examples of unamendable descriptive components are the date of assent
or making and legislative history, which help to identify when the operative
4
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6
7
See A New Interpretation Act (NZLC R17, 1990) [88–99]. See also Bennion, 609, and s 1(1)(a) of the
draft clauses appended to The Interpretation of Statutes (1969, LAW COM No 21, SCOT LAW COM
No 11). Section 5(2) of the Interpretation Act 1999 omitted the words ‘as printed or published under
the Authority of the New Zealand Government’, included in cl 9(3) of the New Zealand Law Commission’s draft, to avoid inconsistency with the Evidence Act 1908 s 29 (which says that the official
version can be displaced by evidence to the contrary). The Evidence Bill before Parliament proposes
to re-enact s 29 in the Acts and Regulations Publication Act 1989.
Bennion, 612.
Bennion, 612.
Bennion, 619.
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includes them.4 That is quite different from creating a discretion to ‘not consider ’,
or disregard, these indications (which may, of course, help in the interpretation
and application of the enactment).
Not all provisions are the same, however. Different kinds of provisions serve
different purposes. In particular, some, explanatory provisions, merely explain
(comment on or describe) work being done by all, or some other part, of the enactment. ‘Explanatory material’ is one of the examples given by section 5(3) of
indications provided in the enactment.
Francis Bennion’s analysis is helpful here. He says an enactment has two kinds
of components with different levels of importance when it comes to the interpretation of the enactment:
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Statute Law Review
Arguments against and for: ‘Classical Style’ versus
‘Plain Language’ and Audience
The main legal work, of prohibiting, requiring, enabling, declaring, or constituting, is not done by explanatory provisions. By definition, they merely explain, or
facilitate understanding (the interpretation and application) of, other, operative
provisions.
This limited purpose of explanatory provisions leads some commentators to
argue that they are, if included in an enactment, redundant or, even worse, liable
to cause problems.
Geoffrey Bowman, First Parliamentary Counsel, Parliamentary Counsel
Office, London, reminds us that ‘Legislation has a very precise object … to change
the law—no more and no less. Every word counts and every proposition will be
assumed to have a purpose. If you include unnecessary material, you are inviting
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Bennion, 612.
See, e.g., Personal Property Securities Act 1999 s 21 (status of examples).
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provisions became law and give details of their passage through the House of
Representatives or making by Parliament’s delegate. (Unamendable descriptive
components, added after the Bill is passed or subordinate legislation is made, fall
largely outside drafters’ control. This article therefore focuses on amendable descriptive components of an enactment.)
Descriptive components are, Bennion suggests, not irrelevant to interpretation,
but they are relevant to a lesser, and varying, extent. He suggests that descriptive
components ‘serve as commentaries on the operative components, of greater or
lesser utility depending on their precise function’.8
The explanatory provisions that this article discusses are, in terms of Bennion’s
analysis, amendable descriptive components. However, as Bennion’s analysis
confirms, these explanatory provisions are also ‘operative’ in so far as they do
affect (i.e. facilitate) interpretation and application. Explanatory provisions are
operative to this limited extent.
Of course, the default rules in section 5 of the Interpretation Act 1999 may,
under section 4 of the Act, be displaced. An express ‘status provision’9 in an enactment may reduce or remove the limited interpretative purpose of an explanatory provision. The status provision might, for example, ensure that the
explanatory provision ‘does not affect the interpretation’ or ‘is intended only as
a guide to the general scheme and effect’ of the enactment.
This article uses the terms ‘explanatory provisions’ and ‘operative provisions’,
even though explanatory provisions are, in the limited way described above, also
operative.
Explanatory Provisions in New Zealand Legislation
5
The classical style is pure and spare. It possesses a simple, timeless beauty.
The classical style embodies what the law does best. It states rights and duties. It specifies processes. It imposes sanctions. Nothing more …. The law
should state, in totally bloodless language, legal rights, legal duties, and
legal processes …. It should be truly plain. It should not contain a single
element that is not strictly necessary, in the narrowest sense, to its legal purpose. Legislation is law, not quasi-law or non-law. It is the law, the whole
law and nothing but the law.
Advocates of ‘plain language’ legislative drafting, by contrast, regard explanatory provisions as a potentially useful tool in the effort to achieve effective communication. In an article discussing ‘Some Implications of Plain Language
Drafting’, Professor Ruth Sullivan explains how plain language drafting relates
to explanatory provisions:
Plain language drafting refers to a range of techniques designed to create legislation that is readable and easy to use by the relevant audience(s)
10 ‘Why
11
12
is there a Parliamentary Counsel Office?’ (2005) 26(2) Statute LR 69, 77. Another First Parliamentary Counsel at the PCO in London has said similarly that ‘Explanatory material, highly desirable though it may be, is not intended to have legal effect. It has no place in the legislation itself, and
including it introduces a risk of changing the meaning.’: Sir Christopher Jenkins, ‘Bills and Acts—
Explanatory Notes’ (1999) 149 NLJ 798 and www.parliamentary-counsel.gov.uk/bills_and_acts/
explanatory_notes_article.asp (accessed 24 April 2006).
‘The nature of legislative intention and its implications for legislative drafting’ (2006) 27(1) Statute
LR 15, 28. See also Prof. Sullivan’s discussion of audience at (2001) 22 Statute LR 145, 157–160, and
J Barnes, ‘The continuing debate about “Plain Language“ legislation: a law reform conundrum’
(2006) 27(2) Statute LR 83, 96–99 (‘What problem does plain language address?’), and 113 and 114
(‘Should legislation explain as well as set down the law?’).
PC News & Views, June 2004. See also Michael Orpwood QC, ‘A Commentary on the Plain Language
Movement’, Paper for 4th Australasian Drafting Conference, Parliament House, Sydney, 3–5 August
2005, http://www.pco.nsw.gov.au/ (accessed 24 April 2006).
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trouble. As a Parliamentary Counsel once said, “Excess matter in Bills, as in
people, tends to go septic”’.10
This argument is part of ongoing, broader debate on desirable legislative drafting styles. The common aim is effective communication. The debate arises over
how to achieve that. In part, the debate relates to the audience for legislation—
with whom is the communication attempted? Daniel Greenberg has suggested
that ‘the nature of the objective search for legislative intent requires the draftsman to determine the nature of his primary target audience and the facilities
likely to be available to them in applying and construing the legislation’.11 Expert
audiences are expected to provide their own analysis and explanation, but is that
equally true for users of legislation who are ‘ordinary people’. And is legislation
for them anyway?
Advocates of a simple, purely functional, ‘classical style’ of legislative drafting doubt whether the use of explanatory provisions is ever justified. In his remarkable article entitled ‘Bursting the Plain Language Bubble’,12 the late Michael
Orpwood Queen’s Counsel explained as follows the characteristics of the
classical style of legislative drafting:
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Effective use of plain language features is certainly encouraged in Australasia,
as legislative drafters practising in this part of the world are well aware.
The Australian Office of Parliamentary Counsel (OPC), in its Plain English
Manual, endorses (see pp. 31–33) the use of ‘readability aids’ including objects
clauses, road maps and summaries, examples, graphics, notes, section headings in question form, readers’ guides, and alphabetical indexes of key
concepts.14
‘Simplified outlines’ are another readability aid used by the OPC. Simplified
outlines summarize in boxed bullet points the main points of operative provisions. They are supported by reading theory suggesting that reading is interactive and that understanding is improved if the overall topic of a text is specified
early. An OPC drafter who has used simplified outlines suggested in 2000 that
they can improve the clarity, structure, and coherence of text; address different
audiences; and help to ‘sell’ the legislation.
New Zealand’s Law Commission has for some time also supported the use of
explanatory provisions of various kinds.15 Discussing the use of explanatory material in its Report 35, Legislation Manual: Structure and Style (1995), the Commission said (paragraphs 118–119) that
Drafters must never lose an opportunity to make legislation easier to understand. This is primarily a matter of using plain language and drafting
clearly …. However there is room for further developing the use of explanatory material in statutes …. The text may be supplemented usefully
by explanatory notes (either section notes or endnotes containing defined
terms, cross-references, origins of sections and legislative history), flowcharts, comparative tables, graphs, diagrams, formulas, and, in longer
Acts, indexes of key words and phrases. This material may or may not be
part of the text of the statute itself; for example, tables usually form part of
the text while notes do not.
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15
(2001) 22 Statute LR 145, 145, n 2, and 161.
http://www.opc.gov.au/about/documents.htm (accessed 24 April 2006).
See, e.g., The Format of Legislation (NZLC R27, 1993) [43] (‘Other aids to understanding’).
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for that legislation …. Plain language drafters try to provide information
that will help readers to interpret the text. Such information typically takes
the form of purpose statements, explanatory notes, examples, summaries,
overviews, and the like. The less familiar a reader is with legislation and
its application by official interpreters, the greater is the need for context
of this sort …. Whereas traditionally drafted statutes avoid all forms of
substantive redundancy, plainly drafted statutes rely on summaries and
overviews, visual aids and examples, all of which either repeats new information or relate it to what the reader already knows. These techniques
suggest that the statute has been written in the expectation that interested
members of the public will be able to read and rely on it directly, without
having to resort to experts or interpreters.13
Explanatory Provisions in New Zealand Legislation
7
Some key reasons for legislative drafting using plain language were articulated in 2004 by New Zealand’s Chief Parliamentary Counsel, who asked: ‘Does
it matter then how the statute is drafted? As long as the lawyers and judges can
make sense of it, does it matter whether anyone else can? Why the obsession with
plain language?’:
Secondly, the assumption that people don’t read legislation is simply
wrong. One need only look at the list of best sellers to see which statutes are
in greatest demand. They are not all ‘lawyers’ law’. The numbers of ‘hits’
on the New Zealand website of up-to-date legislation also shows that the
public reads legislation. Thirdly, and not surprisingly, legislators want to
understand the legislation they are invited to enact. The public also want to
understand it so that they can influence its final form. That is an important
component of access to justice. Clearly drafted legislation also exposes bad
policy, especially in the development phase. If an unpleasant message has
to be communicated, and not all legislative messages are pleasant ones, the
message ought not to be hidden in a mass of words.16
The view that statutes should be understandable by the ordinary person
is considered by Professor John Burrows Queen’s Counsel, who mentions
Francis Bennion’s description of that view as ‘facile’, and as ‘pandering to an
impossible dream’. Professor Burrows concludes that
[t]here are undoubtedly some traps for the ordinary person in reading statutes, however plainly they may be drafted. Nor will a reading of those statutes automatically solve all that person’s problems. But there is no doubt
that plain drafting brings the law much closer to the ordinary person. He
or she gets from it a better understanding, and a clearer picture of his or her
rights and obligations than was ever possible before. Lawyers should be
grateful, too, in that plain drafting renders statutes more accessible to them
as well. It would be of concern if the courts, in interpreting such legislation,
16
GE Tanner QC ‘Access to Justice: Rhetoric or Reality ? Law Reform and Accessibility’ (unpublished
paper, Australasian Law Reform Agencies Conference, Wellington, 13–16 April 2004), paras 50–51.
See also ‘Imperatives in Drafting Legislation: A Brief New Zealand Perspective’ (November 2004)
52 Clarity, 7, 10, and GE Tanner QC ‘Confronting the Process of Statute Making’ in R Bigwood (ed)
The Statute: Making and Meaning (LexisNexis Wellington 2004), 70 (‘Moving from the general to the
specific, particularly in large or complex statutes, can assist readers … [Plain language features such
as overview statements] are an attempt to provide readers with information that will enable them
to get their bearings and navigate more easily through a complex piece of legislation.’).
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… The answers to this question are fairly obvious. First, because ascertaining the meaning of legislation already presents many challenges, the easier
it is to understand the statutory text the better, and even if the only concern
was for lawyers and judges, the easier it is for them to understand the better.
We do not live in an age where learning is a privilege enjoyed by a handful
of citizens like judges and clerics. In the words of Michèle Asprey, lawyers
are no longer seen as ‘the learned custodians of unknowable secrets.
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Statute Law Review
departed too far from the ordinary person’s understanding in too many
cases or for anything other than the most worthy cause.17
The President of New Zealand’s Law Commission, noting that the common
law and judicial decisions interpreting statutes are inaccessible to ordinary citizens, has asked
In April 2006, New Zealand’s Chief Parliamentary Counsel noted
… an international trend to make legislation more accessible both to the
ordinary and the expert reader …. There is a great challenge on law reformers to continue to make legislation ever more accessible. This is in part
the result of governments making legislation available free on the Internet.
Particularly if one is a lawyer, a shift in mindset is required along with
a recognition that legislation has a far wider audience today than it ever
did. It requires a degree of experimentation to find out what works best. It
also calls for balanced judgment and an element of courage. Not everyone
thinks the use of plain language is a good thing, and there are well positioned individuals ready with disparaging criticism of one’s efforts.19
The truth about explanatory provisions probably lies somewhere between the
claims of the advocates of the classical style and those of plain language.
17
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(2003) 11 Waikato LR 1, 12, citing Bennion, 686. [Compare Bennion’s views—to the effect that ‘legislation is really only intended for lawyers and judges. People will need legal advice anyway and, as
long as the lawyers understand the legislation, it doesn’t matter whether the public does or not’—in
FAR Bennion ‘If It’s Not Broke Don’t Fix It: A Review of the New Zealand Law Commission’s Proposals on the Format of Legislation’ (1994) 15 Statute LR 164, and FAR Bennion Understanding Common Law Legislation—Drafting and Interpretation (OUP Oxford 2001), 75 and 76.] See also JF Burrows
‘Plain English and New Zealand Statutes’, (November 2004) 52 Clarity 4.
Rt Hon Sir G Palmer, Address on 30 March 2006 to New Zealand Centre for Public Law, Victoria
University of Wellington: ‘Law Reform and the Law Commission in New Zealand After 20 Years—
We Need to Try a Little Harder ’: http://www.lawcom.govt.nz/SpeechPaper.aspx (accessed 24
April 2006) (‘Law Reform and the Law Commission’). Compare former UK First Parliamentary
Counsel Edward Caldwell: ‘Any democratic society ought to aim at having law the people can get
to grips with as easily as possible.’: ‘A Vision of Tidiness: Codes, Consolidations and Statute Law
Revision’ in B Opeskin and D Weisbrot (eds) The Promise of Law Reform (Federation Press Annandale
New South Wales 2005), 40, 52.
GE Tanner QC ‘Drafting the Law—A Boring Job? The Role of the Parliamentary Counsel Office’,
Paper for WDLS Seminar for the LAC, 3 April 2006, www.justice.govt.nz/lac/pubs/index.html
(accessed 24 April 2006), para 49. Compare Statement of Intent for PCO for 1 July 2005 to 30 June
2008 (2005) AJHR A.9 (SOI), 23: ‘The availability of legislation via the Internet has exposed New
Zealand legislation to a far wider audience than before, and raised expectations of and demand for
improved accessibility. Legislation is not the exclusive preserve of a “priestly caste” of judges and
lawyers and the best selling items of legislation do not include much of what be described as lawyers’ law. The highest demand is for Statutes and regulations that directly affect citizens and organizations in their daily lives and work.’ The Statement of Intent for PCO for 1 July 2006 to 30 June
2009 (2006) AJHR A.9 (SOI) adds (at 26): ‘The number of unique visitors to the Interim Website of
New Zealand Legislation averages 26,000 per month, and is rising.’
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[I]s it safe to give them access to statutes? People may come to grief advising themselves. There is a tendency in some quarters to think that the law
is a mysterious science that should be only revealed to those who are initiated, namely lawyers. But is this defensible in a democratic society?18
Explanatory Provisions in New Zealand Legislation
9
Every explanatory provision must ‘earn its passage’. The inclusion of explanatory provisions can be justified only if they are effectual—that is, only if they actually help readers’ understanding (interpretation and application), whoever
those readers might be.
Alternatives to Use of Explanatory Provisions
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that ‘material additional to the text only clutters the legislation and
makes understanding more, rather than less, difficult’ and
that explanatory provisions would be unnecessary if the legislation
were clearly drafted: ‘if you were doing your job properly, you wouldn’t
need all this’.21
In any case, some other alternatives to explanatory provisions are as follows:
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20
21
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23
notes outside a provision, but still ‘provided in the enactment’ (if the
relevant format of legislation permits these kind of notes);
headings to sections, subparts, or Parts, and other headings;22
explanatory notes (which may influence interpretation,23 even though
not enacted);
extrinsic explanatory material (e.g. official or academic commentaries);
and
later consolidation, or more substantive revision, of an enactment being
amended.
‘Learning from Samuel Johnson about Drafting Statutes’ (2002) 23 Statute LR 227.
Tanner, n 19 at para. 50.
See, e.g., the use of the term ‘jurisdiction’ in the heading above the Supreme Court Act 2003 ss 7–10,
even though those sections provide instead that the Supreme Court ‘can hear and determine’ specified appeals.
See, e.g., the result in Frucor Beverages Ltdv. Rio Beverages Ltd [2001] 2 NZLR 604 (CA) and see also
the examples (showing what happens to four people who start a new job after the automatic enrolment rules apply) on pp. 8–13 of the explanatory note to the KiwiSaver Bill (21–1) currently before
the New Zealand Parliament.
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There are many reasons for caution. Legislative drafting is difficult enough without the added challenge of considering the use of, and devising effectual, explanatory provisions. ‘As everyone who practises it knows, drafting statutes is
excruciatingly difficult and’, Jack Stark reminds us, ‘legislative counsel require
all the help they can obtain’.20
Ensuring regular operative provisions are legally effective, principled, and
clear is a first priority. Devising explanatory provisions that are clear and helpful,
and do not contain or cause problems, may, given the available time and effort,
be simply not practicable.
It is also true that the better the regular operative provisions are, the less they
need explanation. So some drafters may prefer to expend any surplus capacity
on improving regular operative provisions, rather than explaining them; that is
drafters may be persuaded by the following common criticisms:
Statute Law Review
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Different Kinds of Explanatory Provisions Used in
New Zealand Legislation
Explanatory provisions used to date in New Zealand legislation include the
following:
•
The next part of this article considers examples of those kinds of explanatory provisions (together with any associated provisions on their status in interpretation).
Outlines or Overviews (e.g. Divided into Parts Provisions
and Mini Tables of Contents)
The Consolidated Statutes Enactment Act 1908—described by a New Zealand
Attorney General as ‘the greatest of all reforms of our Statute Book’24—repealed
nearly all pre-existing New Zealand Acts and replaced them with 208 new Acts.
A number of those 1908 Acts contain provisions explaining their division into
Parts and the subject matter of each Part. See, for example, the Civil Service Act
1908 section 1(3), Judicature Act 1908 section 1(4), and Sale of Goods Act 1908
section 1(4). And the Law Reform Act 1936 section 2 provides:
2 Act divided into Parts
This Act is divided into Parts as follows:
Part 1—Survival of Causes of Action After Death.
Part 2—Deaths by Accidents Compensation.
Part 3—Charges on Insurance Money Payable as Indemnity for Liability to
Pay Damages or Compensation.
24
Sir T Sidey, ‘Revising the New Zealand Statute Book—An Historical Survey: From Landmark to
Landmark’ (1932) NZLJ 300, 302. See also Burrows (1983) 2 Canta LR 1, 2–3; Elliot, ‘Access to the
Statute Law—The Consolidation and Revision of Legislation’ (NZLC PP8, 1988), pp. 106–124; Elliot
(1990) 20 Victoria University Wellington LR 131, 152–160; see Tanner, n 19 at paras 63–71. Law Commission President Sir G Palmer recently raised some interesting ideas in this area in ‘Law Reform
and the Law Commission’.
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•
•
•
•
•
•
•
•
outlines or overviews (e.g. ‘divided into Parts’ provisions and mini tables
of contents),
‘graphics’ provisions (e.g. flow charts, diagrams, maps, and other images),
purpose provisions,
internal and external cross-reference provisions,
‘relationship’ provisions,
examples,
model or other prescribed forms and summaries of rights,
other provisions explaining effect, and
‘see’ references.
Explanatory Provisions in New Zealand Legislation
11
Part 4—Capacity, Property, and Liabilities of Married Women, and Liabilities of Husbands.
Part 5—Liability of Tortfeasors.
Part 6—Liability of Employers to Their Servants for Injuries Caused by the
Negligence of Fellow Servants.
Part 7—Covenants in Leases Not to Assign or Underlet Without Consent of
Lessor.
(3) This Act is divided into Parts, as follows:
Part 1—Jurisdiction. (Sections 5 to 12.)
Part 2—Punishments. (Sections 13 to 19F.)
Part 3—Matters of Justification or Excuse. (Sections 20 to 65.)
Part 4—Parties to the Commission of Offences. (Sections 66 to 72.)
Part 5—Crimes Against Public Order. (Sections 73 to 98A.)
Part 6—Crimes Affecting the Administration of Law and Justice. (Sections
99 to 122.)
Part 7—Crimes Against Religion, Morality, and Public Welfare. (Sections
123 to 150.)
Part 8—Crimes Against the Person. (Sections 150A to 210.)
Part 9—Crimes Against Reputation. (Sections 211 to 216.)
Part 9A—Crimes Against Personal Privacy. (Sections 216A to 216E.)
Part 10—Crimes Against Rights of Property. (Sections 217 to 272.)
Part 11—Threatening, Conspiring, and Attempting to Commit Offences.
(Sections 306 to 312.)
Part 11A—Obtaining Evidence by Listening to Devices. (Sections 312A
to 312Q.)
Part 12—Procedure. (Sections 313 to 378.)
Part 13—Appeals. (Sections 379 to 399.)
Part 14—Miscellaneous Provisions. (Sections 400 to 412.)
Following a prototype in the De Facto Relationships (Property) Bill 1998
and the enactment of the Property (Relationships) Amendment Act 2001, the
Property (Relationships) Act 1976 contains an entire Part outlining the Act.
Section 1A states the purpose of the outline Part:
1A Purpose of this Part
This Part [(Part 1—Outline of this Act)] is intended
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And the Crimes Act 1961 section 1(3), echoing the form of its 1908 predecessor,
is as follows:
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(a) to give a general indication of what the Act is about,
(b) to indicate how the Act is arranged,
(c) to assist readers to identify the provisions that are relevant to them.
Mercifully the Bill does not contain sections at the beginning purporting to
‘outline’ what the legislation is about—for example, see ss 1A to 1L of the
Property (Relationships) Act 1976. They strike one as a bit like coitus interruptus—not the real thing and not very productive, yet designed to titillate.
Had such sections been inserted into the Care of Children Bill, it could well
have hit the 200 clause mark.26
Outline or overview ‘provisions’ have been used more often than outline
or overview Parts. These provisions can outline concisely the provisions, or the
subject matter, of an entire Act.27 See, for example, the Year 2000 Information
Disclosure Act 1999 section 2:
2 What this Act is about
(1) This Act relates to Year 2000 information disclosure statements.
(2) A Year 2000 information disclosure statement is a statement about the
problems associated with the electronic processing of information relating
to dates occurring in the period commencing on 15 May 1999 and ending
with the close of 30 June 2001.
(3) If a Year 2000 information disclosure statement is made in accordance
with the Act, no person who makes or republishes the statement is under
any civil liability for anything in the statement. Also, a Year 2000 information disclosure statement cannot be given in evidence in civil proceedings
involving the person who made or republished the statement. However,
the Act contains exceptions to the protection from civil liability and the
prohibition against admitting statements in evidence.
25
26
27
See also Accident Insurance Act 1998 Part 1 and Personal Property Securities Act 1999 Part 1.
B Atkin, ‘Editorial: Family Law Getting Fatter ’ (2003) 4 Butterworths Family LJ 183.
See, e.g., Animal Products (Ancillary and Transitional Provisions) Act 1999 s 2 (General outline
of this Act), New Zealand Public Health and Disability Act 2000 s 5 (Outline), Injury Prevention,
Rehabilitation, and Compensation Act 2001 s 4 (Overview), Credit Contracts and Consumer
Finance Act 2003 s 4 (Overview), Maori Fisheries Act 2004 s 4 (Outline of Act).
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Outline Parts have also been used in some other New Zealand Acts.25 They
are similar to the simplified outlines (discussed above) used by the Australian
OPC. They avoid merely repeating a table of contents by also discussing the
subject matter, and general effect, of the Parts of the Act. However, they have
not been met with universal approbation. One seasoned practitioner described
an outline Part as ‘the baby talk up the front of the Act’. And a leading commentator on New Zealand family law, discussing a Bill without an outline Part,
commented:
Explanatory Provisions in New Zealand Legislation
13
(4) The object of providing this protection is to reduce the risk of legal
proceedings for persons wishing to give or share information about what is
commonly called ‘Y2K compliance’ or ‘the Millennium bug’, and, as a
result, to encourage the giving and sharing of that information.
And compare the Civil Union Act 2004 section 4:
4 Overview of civil union
(a) they are both aged 16 or over (but people aged 16 or 17 must obtain
consent—see section 19):
(b) they are not within the prohibited degrees of civil union as set out
in Schedule 2 (but in some cases a court may dispense with this
prohibition—see section 10):
(c) they are not currently married or in a civil union with someone
else (but married couples may enter into a civil union with each
other—see section 18).
(2) A civil union may be solemnised by a Registrar or, if a Registrar has
issued a licence, by a civil union celebrant or an exempt body.
(3) After a civil union is solemnised, it is registered as a civil union under
Part 7A of the Births, Deaths, and Marriages Registration Act 1995.
(4) The dissolution of a civil union is governed by the Family Proceedings
Act 1980.
(5) This section is by way of explanation only. If a provision of this or any
other Act is inconsistent with this section, the other provision prevails.
Other similar provisions have outlined, or given overviews of
•
•
•
•
Parts of an Act (e.g. Local Government Act 2002 section 9);
provisions of an Act that relate to specified entities (e.g. Crown Entities
Act 2004 section 12);
transitional provisions or consequential provisions in an Act (e.g. Building Act 2004 section 416 and Chartered Professional Engineers of New
Zealand Act 2002 section 66);
some or all of the provisions of rules, regulations, or other subordinate
legislation (e.g. Animal Products Regulations 2000 rule 4, Family Courts
Rules 2002 rule 4).
The limited interpretative purpose of an outline or overview Part or provision may, however, be reduced or removed. That result may be achieved by
expressing the outline or overview to be in general terms only [see, e.g. Animal
Products (Ancillary and Transitional Provisions) Act 1999 section 2 (General
outline of this Act)]. Alternatively, that result may be achieved by the inclusion
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(1) Two people, whether they are of different or the same sex, may enter
into a civil union under this Act if
14
Statute Law Review
in the relevant enactment of an express status provision along the following
lines:
This Part is only a guide to the general scheme and effect of the Act.28
This section is by way of explanation only. If a provision of this or any other
Act is inconsistent with this section, the other provision prevails.29
This section is intended only as a guide to the general scheme and effect of
this Act.30
This section is a guide to the general scheme and effect of this Act.32
This section is a guide to the overall scheme and effect of this Act, but does
not affect the interpretation or application of the other provisions of this
Act or of the deed of settlement.33
Outline or overview provisions can also be compared to mini tables of contents, as may be found in schedules (e.g. Schedule 3 of the New Zealand Public
Health and Disability Act 2000 and the lists of forms contained in Schedules 1–9
of the Family Courts Rules 2002) or in Parts or subparts of Acts (e.g. those of the
Income Tax Act 2004).
The Aquaculture Reform (Repeals and Transitional Provisions) Act 2004
section 4 is as follows:
4 Arrangement of this Act
(1) This Act is arranged as follows:
(a) sections 6 to 17 repeal the Marine Farming Act 1971 and deal with
transitional matters arising from the repeal:
(b) sections 18 to 33 repeal certain provisions in the Fisheries Act 1983
(relating to marine farming) and deal with transitional matters
arising from the repeals:
(c) sections 34 to 54 deal with transitional matters relating to the ending
on 31 December 2004 of the moratorium established under the
28
29
30
31
32
33
Personal Property Securities Act 1999 s 3. Compare Building Act 2004 s 5(3) & Family Courts Rules
2002 r 4(9).
Civil Union Act 2004 s 4(5). Compare Social Security (Long-term Residential Care) Amendment Bill
cl 5, new s 136AB(3) (overview of Part 4 of the Social Security Act 1964 given ‘by way of explanation
only’).
Building Act 2004 s 5(3). Compare ss 15(2) and 416(2) of the same Act and the Gas Act 1992
s 43B(6).
Chartered Professional Engineers of New Zealand Act 2002 s 24(2). Compare s 66(2) of the same
Act.
Maori Television Service (Te Aratuku Whakaata Irirangi Maori) Act 2003 s 5(1).
Ngaa Rauru Kiitahi Claims Settlement Act 2005 s 5(1).
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Subsection (1) is a guide only to the general scheme and effect of the different decision-making functions of the Registration Authority and Council
under this Part.31
Explanatory Provisions in New Zealand Legislation
15
Resource Management (Aquaculture Moratorium) Amendment Act
2002 on the granting of coastal permits for aquaculture activities:
(d) sections 55 to 58 deal with some general matters.
(2) The arrangement of this Act does not necessarily enable certain situations and the relevant provisions to be readily identified.
(3) The table at the end of this section refers to certain situations and the
relevant provisions in a different order based on arranging situations in a
sequence in which they are likely, in practice, to occur.
The table at the end of section 4 of the Aquaculture Reform (Repeals and
Transitional Provisions) Act 2004 identifies, for those affected, provisions relevant to particular situations, for example to pre-moratorium resource consent
applications. This is unusual, but provides a series of outlines that reflect the different interests and needs of classes of different users of the legislation.
Graphics Provisions (e.g. Flow charts, Diagrams, Maps, or
Other Images)
‘Graphics provisions’ in an enactment involve ‘representing the information you
are trying to convey using visual instead of, or as well as, verbal information’.34
Graphics provisions, for example flow charts, are used to try to make it easier for
the reader to discern what is going on in the enactment.
Flow charts help the reader to ‘understand and work through a complicated
process, especially one in which there are a range of options’.35 Flow charts—
sometimes referred to as ‘logical trees’—are not new. ‘[T]he use of logical trees
and kindred mathematical formulae in legislation’, said Nigel Jamieson in 1974,
‘seems inevitable.’ Jamieson added that
[t]o be so preoccupied with words that the efficacy of other more precise
and often more intelligible forms of communication is belittled or ignored
amounts to a dereliction of duty in the part of legislative draftsmen ….
nothing less than a deep concern with all forms of communication will
do. If logical trees come to be employed as a means of legislative expression, whether by being allowed to seed themselves into the statute book
or by being carefully cultivated there in accordance with predetermined
rules, their success as a means of legislative communication will depend on
the draftsman’s dexterity in being able to swing from them with his hands.
34
35
H Penfold ‘When Words Aren’t Enough: Graphics and Other Innovations in Legislative Drafting’
(2001), http://www.opc.gov.au/plain/docs.htm (accessed 24 April 2006).
Ibid.
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(4) The purpose of this section is to present alternative arrangements
for ease of reference, and nothing in this section limits or affects the other
provisions of this Act.
Statute Law Review
16
At the moment it seems rather that his stubborn conservatism will eventually lead him to be blown by the wind this way and that, swinging from
them by his neck.36
New Zealand enactments containing flow charts (and their associated status
provisions) include the following:
•
•
•
Further, a recent Bill, the Criminal Procedure Bill, has been amended so that it
includes two general overviews, set out in diagrammatic form, of
•
•
36
the disclosure regime set out in Part 2 of the Bill, which is intended to be
enacted as a stand-alone Criminal Disclosure Act (‘This general overview of disclosure is by way of indication only. Detailed rules in the Act
determine how the disclosure regime operates.’: note under general
overview in diagrammatic form); and
the committal procedures set out in Part 5, which is intended to substitute new Parts 5 and 5A in the Summary Proceedings Act 1957
(‘This general overview of committal proceedings is by way of indication only. Detailed rules in the Act determine how those proceedings are conducted.’: note under general overview in diagrammatic
form).
NJ Jamieson, ‘Swinging from Logical Trees’ (1974) NLJ 1096–1098 and 1120–1123, 1122 and 1123. See
also A Bullôt, ‘Legislation: Back to the Drawing Board!’ (1993) 7 Auckland University LR 330.
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•
Trade Marks Act 2002 Part 3—process for obtaining registration of trade
mark and other matters (‘This diagram is intended to give a general
overview of the main steps involved in obtaining the registration of a
trade mark. It is not intended to have any other effect.’: italicized heading before flow chart);
Clean Records (Clean Slate) Act 2004 section 3—general overview of eligibility under the clean slate scheme set out in diagrammatic form (‘This
general overview of eligibility under the clean slate scheme is by way of
indication only.’: note under flow chart);
Income Tax Act 2004 subpart BC (Subpart BC—Calculating and satisfying income tax liabilities) and subsection BC 6 (Income tax liability of
filing taxpayer) and BC 9 (Satisfaction of income tax liability) [‘Diagrams, flow charts, readers’ notes, and the lists of defined terms following sections are included in this Act only as interpretational aids. If there
is conflict between an interpretational aid and a provision of this Act,
the provision prevails.’: section AA 2(1)];
Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004
section 3(1) and Schedule 1—Overview of process for Judicial Conduct
Commissioner and Judicial Conduct Panel [‘The diagram is intended as
a guide only’: section 3(2)].
Explanatory Provisions in New Zealand Legislation
17
•
•
•
•
•
Flags, Emblems, and Names Protection Act 1981, Schedule 1 (New
Zealand flag) and Part 1 of Schedule 2A (Olympic Games and Commonwealth Games Emblems);
New Zealand 1990 Commission Act 1988, Schedule 1 (The Official Emblem Of The New Zealand 1990 Commission);
Fiordland (Te Moana o Atawhenua) Marine Management Act 2005 [Indicative map of Fiordland (Te Moana o Atawhenua) Marine Area and
marine reserves] [‘If there is any inconsistency between the areas indicated in Schedule 1 and the corresponding descriptions in Schedule 2 or
Schedules 4–11, the descriptions in Schedule 2 or Schedules 4–11 prevail.’ section 6(4)];
Hauraki Gulf Marine Park Act 2000, Schedule 3 (Map To Indicate
Hauraki Gulf) (‘The catchment area and coastal marine area of the
Hauraki Gulf are indicated in general terms only on the map in
Schedule 3, and do not affect the definitions of the terms coastal marine area, catchment, or Hauraki Gulf in section 4, or any other provision of this Act.’ section 50);
Land Transport (Driver Licensing) Rule 1999, Schedule 5 (Driver Theory
Tests including pictures and graphics).
Of course, some of those graphics provisions are operative rather than merely
explanatory.
Purpose Provisions
The format of New Zealand legislation changed on 1 January 2000. Before then,
Acts had both a Title (often stating the Act’s purpose) and a Short Title. Following
that change in format, Acts instead have a single Title (stated in a Title clause),
and usually also a purpose provision.
37
Bennion, 630, citing The Preparation of Legislation (1975 Cmnd 6053) para. 20.2(9). See, for example,
Schedules 1 and 2 of the Weathertight Homes Resolution Services Act 2006.
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The formats and design features in those flow charts or ‘diagrammatic general
overviews’ vary. If legislative flow charts are becoming more routine, a standard
uniform format using conventionally accepted features could be used, unless
good reasons exist in particular cases for special arrangements. In this way, both
drafters and readers would know what to expect. Some larger flow charts, diagrams, or other graphics provisions are best located in schedules. (The Renton
Committee preferred examples also to be located in schedules, but this does separate them from the provisions they illustrate.37) Flow charts or diagrammatic
overviews also highlight the potential difficulties (returned to at the end of this
article) of amendments to explanatory provisions. Replacing the entire flow chart
or diagram may be the best approach, but it also hides the changes made.
Some other graphics provisions in New Zealand legislation (and associated
status provisions) are as follows:
Statute Law Review
18
A purpose provision may be included for either or both of the following
reasons:
•
•
to state (as an ‘express statement of legislative intention’38) a broad
policy object or aspiration and
to summarize (i.e. explain in general terms) an enactment’s effects or
essential features.
3 Purpose
The purpose of this Act is to promote balance between work and other aspects of employees’ lives and, to that end, to provide employees with minimum entitlements to
(a) annual holidays to provide the opportunity for rest and recreation;
(b) public holidays for the observance of days of national, religious,
or cultural significance;
(c) sick leave to assist employees who are unable to attend work because they are sick or injured, or because someone who depends on
the employee for care is sick or injured;
(d) bereavement leave to assist employees who are unable to attend
work because they have suffered a bereavement.
(Holidays Act 2003)
63 Purpose and overview of sections 64 to 80
(1) The purpose of sections 64 to 80 is to provide to the Court, and to parties
to a parenting order, a range of options for making the order work.
(2) To that end, sections 64 to 80
(a) provide for the parties to request counselling to resolve a dispute
over observing and carrying out the order;
(b) provide for the Court to make orders of various kinds, or to respond
in various other ways, if a dispute over contravention of a parenting
order is not resolved by the parties themselves;
(c) make it an offence for a party to the parenting order to intentionally
38
39
Bennion, 564.
On that subject, see G Tanner QC and R Carter, ‘The Old Girl Still Looks Good to Me—Purposive
Interpretation of New Zealand Legislation’ (unpublished paper for 4th Australasian Drafting
Conference, Sydney, 3–5 August 2005), http://www.pco.nsw.gov.au/pccconf/papers/9-GeorgeTanner.pdf (accessed 24 April 2006).
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Purposive interpretation of New Zealand legislation is not the subject of this
article.39 But purpose provisions summarizing the effect or essential features of
some or all of an enactment are explanatory provisions. This point is shown by
the following examples:
Explanatory Provisions in New Zealand Legislation
19
(i) contravene the order or
(ii) prevent compliance with the order;
(d) make it an offence to knowingly resist or obstruct the execution of
(i) a warrant to enforce the role of providing day-to-day care for, or
an order for contact with, a child; or
(ii) a warrant relating to preventing removal of a child from New
Zealand;
(f) make it an offence in certain circumstances to take or attempt to take
a child out of New Zealand.
(Care of Children Act 2004)
3 Purpose of this Act
(1) The purpose of subpart 1 of Part 2 is to restrict and guide the awarding
of compensation sought by specified claims in order to help to ensure that
the remedy of compensation is reserved for exceptional cases and used only
if, and only to the extent that, it is necessary to provide effective redress.
(2) The purpose of subpart 2 of Part 2 is to
(a) establish, require payments into, and regulate the operation of, a victims’ claims trust bank account; and
(b) provide a procedure for the making and determination of victims’
claims.
(3) The purpose of subpart 3 of Part 2 is to suspend the running of limitation periods for certain claims by victims.
(4) The purpose of Part 3 (amendments to other Acts) is to
(a) amend the Legal Services Act 2000 to facilitate the granting of legal
aid in respect of victims’ claims proceedings under subpart 2 of Part
2 of this Act; and
(b) amend the Privacy Act 1993 to enable the Ministry of Justice to have access to police records on offender identity and victim identity for the purpose of providing assistance to victims in accordance with this Act; and
(c) amend the Victims’ Rights Act 2002 to require the Secretary for Justice to request, for the purposes of a notice under section 20 of this
Act, the current address (including the full name) of a victim who has
asked for notice of certain matters under that Act; and
(d) amend consequentially the Human Rights Act 1993, the Limitation
Act 1950, and the Privacy Act 1993.
(Prisoners’ and Victims’ Claims Act 2005)
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(e) make it an offence to knowingly fail or refuse to afford immediate
entrance to (all or a part of) any premises to a person executing a
warrant of that kind;
Statute Law Review
20
1A Purpose
(1) The purpose of this Act is to consolidate and amend the law governing
the use of public financial resources.
(2) To that end, this Act
(a) provides a framework for parliamentary scrutiny of
(i) the Government’s expenditure proposals; and
(ii) the Government’s management of its assets and liabilities; and
(c) specifies the principles for responsible fiscal management in the
conduct of fiscal policy and requires regular reporting on the extent
to which the Government’s fiscal policy is consistent with those principles; and
(d) specifies the minimum financial and non-financial reporting obligations of Ministers, departments, Offices of Parliament, and organisations named or described in Schedule 4; and
(e) provides for the application of financial management incentives and
for the accountability of organisations named or described in Schedule 4; and
(f) safeguards public assets by providing statutory authority and control
for the
(i)
(ii)
(iii)
(iv)
(v)
(vi)
borrowing of money,
issuing of securities,
use of derivative transactions,
investment of funds,
operation of bank accounts, and
giving of guarantees and indemnities.
(Public Finance Act 1989)
3 Purpose of this Part
The purpose of this Part is to amend the principal Act to enable indexation
of the rates of excise duty and excise-equivalent duty on motor spirits by
reference to the amounts required by section 40 of the Land Transport Management Act 2003 to be paid to the national land transport fund.
6 Purpose of this Part
The purpose of this Part is to amend the principal Act to increase, by 5 cents
per litre (excluding goods and services tax), the rates of excise duty and
excise-equivalent duty on motor spirits.
(Customs and Excise (Motor Spirits) Amendment Act 2005)
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(b) establishes lines of responsibility for effective and efficient management of public financial resources; and
Explanatory Provisions in New Zealand Legislation
21
Internal and External Cross-reference Provisions
(6) Section 132A of the Films, Videos, and Publications Classification Act
1993 (which specifies an aggravating factor to be taken into account in
sentencing, etc, for certain publications offences) applies to an offence
against subsection (1A) of this section, and an offence of that kind is also a
relevant offence as defined in section 145A(1) of that Act (which relates to
extraterritorial jurisdiction).
The Extradition Act 1996 section 101A(2) highlights related provisions (on the
inclusion of offences within certain extradition treaties by operation of law) in
that Act and in a number of other Acts. The list is useful, but must be kept up to
date to remain helpful and not misleading.
40
‘There is a difference between a brochure and an Act of parliament. The people affected by the Act
need to know whether they are reading the words of the law, or someone’s interpretation of the law,
or a combination of both. There is a need to retain clear markers of status in both format and language, to enable law to be recognized as such.’: N Horn, ‘A Dainty Dish to Set before the King: Plain
Language and Legislation’, Plain Language Association International (PLAIN), Fourth Biennial
Conference Proceedings, Toronto, Canada, September 27, 2002, http://www.plainlanguagenetwork.
org/conferences/2002/dish/dainty.pdf (accessed 24 April 2006), 5.
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Internal cross-reference provisions identify and make explicit important links between operative provisions in the same enactment.
The Films, Videos, and Publications Classification Act 1993 provides an example of an internal cross-reference provision. Section 3(3) and (4) of that Act make
it explicit that the giving of a classification for a publication means the giving of
a classification for the publication ‘in accordance with section 23(2)’ (because it is
section 23 of that Act that deals with the examination and classification of publications). The internal cross-references are simply to help readers identify and
move to the relevant provisions within the same enactment.
A different form of internal cross-reference provision is the Crown Entities Act
2004 section 7(1). Section 7(1) defines the term ‘Crown entity’, mainly by referring to other provisions of the Act (and also by referring to provisions of the Education Act 1989). Section 7(1) also outlines characteristics of the different types of
a subcategory of Crown entities—statutory entities. Note, however, that section
7(2) makes it plain that ‘The words in brackets in [section 7(1)] about the effect of
the different types of statutory entities are intended only as a guide’. Operative
and explanatory provisions are mixed, so it must be made clear what is operative
and what is merely explanatory.40 Section 7(1) is not only a definition but also
identifies, groups, and makes explicit important links between operative provisions in the same enactment.
External cross-reference provisions (as the term implies) identify and make explicit important links with operative provisions in other enactments.
The Customs and Excise Act 1996 section 209(6) adverts to the effects of related
provisions in (sections 132A and 145A of) the Films, Videos, and Publications
Classification Act 1993:
Statute Law Review
22
Another external cross-reference provision is the Tax Administration Act 1994
section 14(7):
(7) The Commissioner may give the notice by an electronic means of communication to the addressee, if the Commissioner complies with the Electronic Transactions Act 2002.
5 Purpose of rules
(1) These rules regulate the practice and procedure to be followed by
Boards, principals, students, parents of students, and other persons, under
sections 14 to 18 of the Act.
(2) Sections 13 to 18 of the Act are set out in these rules so that readers can
see how the sections and the rules fit together. (The sections are in
boxes.)
Readers may find it helpful that sections 13–18 of the Education Act 1989 are
set out, for their information, in the Education (Stand-Down, Suspension, Exclusion, and Expulsion) Rules 1999. But amendments to those sections will, of
course, also need to be set out in those rules.
Relationship Provisions
‘Relationship provisions’ not only identify and make explicit important links
with related provisions or laws but also explain or determine any relevant hierarchy. (As that statement suggests, in some cases relationship provisions are operative rather than merely explanatory.)
Relationship provisions include the following:
•
•
•
Crown Entities Act 2004 section 4—application of various Acts to Crown
entities;
Human Rights Act 1993 section 92M(2)—power in section 92M to award
damages is subject to sections 92J, 92N, and 92O of Act, and to subpart 1
of Part 2 of Prisoners’ and Victims’ Claims Act 2005;
Summary Proceedings Act 1957 section 144A(2) and Te Ture Whenua
Maori Act 1993 section 58B(3)—ability, with leave, to appeal to Supreme
Court is subject to Supreme Court Act 2003 section 14 (which prevents
Supreme Court giving leave to appeal directly to it against a decision
made in a court other than Court of Appeal unless satisfied exceptional
circumstances justify taking proposed appeal directly to Supreme Court);
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The Animal Products Act 1999 section 169 cross-refers to and outlines the repeals, amendments, and transitional provisions that appear in the separate but
related Animal Products (Ancillary and Transitional Provisions) Act 1999.
Some enactments provide more than a cross-reference to another related enactment. Rule 5 of the Education (Stand-Down, Suspension, Exclusion, and Expulsion) Rules 1999 is as follows:
Explanatory Provisions in New Zealand Legislation
•
•
•
23
Gambling Act 2003 section 17(3)—regulations may specify property
that must not be used to reward winners, and those regulations override anything to contrary in the Act;
Defamation Act 1992 section 54—Act not to derogate from Parliamentary privilege, and so on;
Agricultural Compounds and Veterinary Medicines Act 1997 section
64(5) and Climate Change Response Act 2002 section 39(7)—powers of
entry for inspection do not affect privilege against self-incrimination.
‘Examples’, says New Zealand’s Chief Parliamentary Counsel, ‘are a useful
method of supplementing a particular legislative rule with an explanation of
how the rule will apply in a particular situation. They are not new. They have
been used in the Consumer Credit Act 1974 (UK), the Occupiers Liability Act
1957 (UK), the Indian Evidence Act 1872 (drafted by Sir James Stephen), and the
Indian Penal Code. Examples now feature extensively in Australian Commonwealth legislation and in the legislation of Victoria, Queensland, and the Australian Capital Territory. In an interesting study of the role of examples in legislation,
an Australian academic lawyer, Jeffrey Barnes, says this:
Examples have altered the language and structure of statutes in significant ways. Their separate location after the relevant provision has allowed
a variety of means of expression, including most radically, the narrative
form. It has also allowed the example to rival the rule for legal or practical
significance.’41
Examples have been used in New Zealand legislation in a range of ways.
Some simple examples appear, using the language ‘for example’ or ‘including’,
embedded within provisions. The Local Government Act 2002 sections 79(3) and
169(2)(a)(i) are as follows (emphasis added):
(3) The nature and circumstances of a decision referred to in subsection
(2)(c) include the extent to which the requirements for such decision-making
41
Tanner, n 19 at para. 48, citing Jeffrey Barnes, ‘Shining Examples’, The Loophole, June 2004 No 1, 8, 14
[paper for Conference of the Commonwealth Association of Legislative Counsel (in association
with the 13th Commonwealth Law Conference), Melbourne, Australia, 17 April 2003] (‘Barnes’),
which concludes: ‘Examples, at least in many Australian jurisdictions, no longer languish as a descriptive component of legislation. They form part of the operative components of legislation.’ See
also DC Elliot ‘Using Examples in Legislation’ (revised, November 1996), http://www.davidelliott.
ca (accessed 24 April 2006), J Walden ‘The Use of Outline Parts and Examples in Legislation: The
New Zealand Experience’ (unpublished paper for PCC’s Drafting Forum Wellington 2000); H
McKechnie ‘Examples in Legislation’ [2000] NZLJ 465; N Horn, ‘Examples—A Typology (with examples)’ (unpublished paper for PCC’s Drafting Forum Melbourne 2001); and P O’Brien, ‘Use and
Misuse of Examples’, (March 2005) The Loophole, No 1 47–54 (‘O’Brien’).
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Examples
Statute Law Review
24
are prescribed in or under any other enactment (for example, the Resource
Management Act 1991).
(2) A member of the police may, without warrant,
(a) for the purpose of ascertaining whether liquor is present, search
(i) a container (for example, a parcel, package, bag, or case) in the possession of a person who is in, or entering, a public place.
Embedding simple examples within provisions is certainly not new:
[Bills of Exchange Act 1908 section 35(1)]
4 Permission to use a royal photograph in the design does not extend to:
…
(f) an article which is used to assist the sale of any other article, for example,
cigarette cards.
(Commercial Use of Royal Photographs Rules 1962)
See also the example embedded in the written information declared to
satisfy requirements in the Insurance Law Reform Act 1985 section 16. Other
examples, some of which are larger and more complex examples in narrative
form, appear, boxed and in smaller type, within or after provisions, as in the
following:
•
Personal Property Securities Act 1999 section 16(1):
accessions means goods that are installed in, or affixed to, other goods
Example
A replacement motor installed in a car.
• Property (Relationships) Act 1976 section 2B (example, substituted on
•
•
•
1 February 2002, of marriage including immediately preceding de facto
relationship);
Electronic Transactions Regulations 2003 rule 5 (examples of express
consent);
Credit Contracts and Consumer Finance Regulations 2004 rule 9 (example of calculation of reasonable estimate of creditor’s loss if interest rate
fixed for whole term);
Judicial Superannuation (part-time Judges) Determination 2004 rules 5
and 6 (examples of calculation of annual salary, and of length of judicial
service, for certain purposes);
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(1) An indorsement is restrictive which prohibits the further negotiation of
the bill, or which expresses that it is a mere authority to deal with the bill as
thereby directed and not a transfer of the ownership thereof—as, for example, if a bill is indorsed ‘Pay D. only’, or ‘Pay D. for the account of X.’, or
‘Pay D. or order for collection’.
Explanatory Provisions in New Zealand Legislation
•
•
•
•
•
Overseas Investment Regulations 2005 rule 34 (examples of qualification for exemption for persons connected to portfolio investors or New
Zealand controlled persons);
Social Security (Long-term Residential Care) Regulations 2005 rule 9B
(examples of where people may be treated as having deprived themselves of property or income);
Social Security (Temporary Additional Support) Regulations 2005
rule 13 (examples of eligibility for and calculation of amounts of temporary additional support);
Charities Act 2004 subsection 14 (example of Charities Commission
acting on the basis of reasonable assumptions in relation to charitable trusts) and 30 (example of Charities Commission supplying register information or documents for purposes of Inland Revenue
Acts);
Taxation (Depreciation, Payment Dates Alignment, FBT, and Miscellaneous Provisions) Act 2006 section 137 (examples, including diagrams
using calendars, related to new subsection MB 13, MB 14, MB 26, and
MB 27 on dates of payments of provisional tax) and section 243 (examples including diagrams using calendars, related to new subsection
120KC and 120KD on residual income tax instalments and provisional
tax estimation instalments);
Employment Relations Amendment Bill (19–1), clause 4, new section 69E
(examples of contracting in, contracting out, and subsequent
contracting).
Yet others appear not as provisions, but instead in explanatory notes. This
occurred in the Banking and Insolvency (Netting and Payments Finality) Bill
1998. The explanatory note to the KiwiSaver Bill (21–1) currently before the
New Zealand Parliament includes examples showing what happens to four
people who start a new job after certain automatic enrolment rules apply. Of
course, examples in explanatory notes to Bills have a more limited purpose:
they do not appear in versions of the Bill later than the introduction copy and
are not enacted. Compare the example in the explanatory note to the Electricity
Governance Amendment Regulations 2005, which note accompanies those
regulations.
If no special status provision reduces or removes their limited interpretative purpose, examples, in New Zealand, are ‘indications provided in the
enactment’ and so ‘may be considered in ascertaining the meaning of an
enactment’: Interpretation Act 1999 section 5(3). However, many (but certainly
not all42) enactments that use examples also include associated status
42
The Local Government Act 2002 is an Act with examples but without a provision on their status in
interpretation. And does the reference to ‘diagrams’ in the Income Tax Act 2004 s AA 2(1) (‘interpretational aids’) cover diagrammatic examples, or does that Act too contain examples but no provision on their status in interpretation?
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•
25
Statute Law Review
26
provisions. Status provisions for examples,43 commonly follow, or use the
elements of, the following standard form provision—the Personal Property
Securities Act 1999 section 21:
21 Status of examples
(1) Every example used in this Act is part of this Act.
(2) An example used in this Act is only illustrative of the provision to which
it relates. It does not limit the provision.
The Interpretation Act 1999 section 5 removes the need for a provision like
section 21(1). [However, section 21(1) was drafted before the Interpretation
Act 1999 came into force on 1 November 1999.] The propositions in section 21(2)
and (3) are similar to those in section 15AD of the Acts Interpretation Act 1901
(Australia) but can, as indicated by Paul O’Brien,44 be contrasted with the Interpretation of Legislation Act 1984 (Victoria) section 36A(1), part of which enables
examples to prevail over and extend the meaning of the provisions to which
they relate:
(1) If an Act or subordinate instrument includes at the foot of a provision
under the heading ‘Example’ or ‘Examples’ an example of the operation of
the provision, the example
(a) is not exhaustive; and
(b) may extend, but does not limit, the meaning of the provision.
It might well be inherent in the idea of an example that it merely illustrates the
operation of a provision and so is not exhaustive or limiting. However, an express statement prevents an example being invoked to (mis)interpret the provision illustrated as a provision that is meant to operate ‘only’ in the way that is
illustrated by that example.
Also interesting are the propositions on conflicts between examples and the
provisions whose operation is illustrated by those examples. The propositions
suggest that (plainly unwelcome) conflicts between examples and the provisions
to which they relate are so unavoidable or expected as to need to be dealt with by
a routine statement. Conflicts between other kinds of provisions of the same enactment are rarely expected and are not dealt with in this way. Giving primacy to
43
44
One status provision, e.g., is new s 69E(2) and (3) of the Employment Relations Act 2000, as proposed to be substituted by cl 4 of the Employment Relations Amendment Bill (19–1): ‘(2) An example is only illustrative of the definition it relates to and does not limit the definition’ and ‘(3) If an
example and the definition it relates to are inconsistent the definition prevails’. For others, see the
Charities Act 2005 s 4(3) and the Fisheries Act 1996 s 2(2)(b), which is ‘for the avoidance of doubt’
(‘The expression of any matter or thing by way of example, or a provision to the effect any matter
or thing includes certain matters or things, does not limit the generality of the provision to which
the example relates or the included matters or things relate’).
O’Brien, 47. Queensland’s Acts Interpretation Act 1954, s 14D is similar, as indicated by Barnes, 9.
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(3) If an example and the provision to which it relates are inconsistent, the
provision prevails.
Explanatory Provisions in New Zealand Legislation
27
Model or Other Prescribed Forms and Summaries of Rights
Model forms can be prescribed or otherwise enacted for optional use for particular purposes. Model forms and notes to them can, like examples, tend to explain
the effect of enactments. Of course, some notes will not be provisions or ‘indications provided in the enactment’.
The Property (Relationships) Model of Form Agreement Regulations 2001 give
one example. They prescribe and explain an optional model form of agreement
for the purpose of contracting out of the Act by providing that listed property is
to be separate property. The explanatory note to the regulations makes it clear,
however, that ‘nothing in the form or the notes to it is intended to take the place
of legal advice, and anyone who is considering entering into an agreement based
on the form should take independent legal advice before doing so’.
Compare the terms and conditions of the agreement set out in the Schedule
of the Sharemilking Agreements Order 2001. Those terms and conditions,
prescribed under the Sharemilkers Act 1937 (‘An Act to make provision for
45
46
47
See R Carter “Statutory Interpretation in New Zealand’s court of appeal: when ‘may’ means ‘must’,
section headings affect interpretation, and latent acts have effect” (2001) 22(1) Statute LR 20, 25–26.
Compare the enforcement of the (now repealed) Acts Interpretation Act 1924 s 5(g) on marginal
notes or section headings, as discussed by R Carter (2001) 22(1) Statute LR 20, 26–34.
Bennion, 629–631.
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a provision reverses the default presumption that the specific (the detailed example) displaces the general (the abstract rule embodied in the provision). It also
suggests a diffidence about examples that brings to mind again45 the words of
A. P. Herbert’s Lord Goat: ‘If Parliament does not mean what it says, then it should
say so!’ One might also consider hard to enforce a rule requiring an element to be
disregarded for the purposes of interpretation.46 If a conflict not yet discerned is
to be resolved by an arbitrary rule, does it make more sense to ensure that the
closely scrutinized detailed example prevails over the abstract provision illustrated? Bennion agrees an example is ‘a detailed indication of how Parliament
intended the enactment to operate in practice’, but suggests that the enactment
prevails in a case of conflict (without a status provision producing that result) because it is ‘assumed in the absence of indication to the contrary that the framer of
the example was in error ’. Bennion accepts, however, that while a repugnant example cannot in itself justify a departure from the literal meaning of an operative
provision, there will be cases where the court will apply a strained construction,
and an example may support the reasons for doing so.47
Whatever the answers, it is probably not necessary or desirable, for comprehensiveness and uniformity, to include these propositions on the status of examples in the Interpretation Act 1999, as some examples are self-evidently not
limiting of, or in conflict with, the provisions they illustrate, and therefore require
no associated status provision.
Statute Law Review
28
safeguarding the interests of sharemilkers under sharemilking agreements’)
include (in separate places) the following warning and term:
The parties to this agreement are strongly advised to seek independent
third party and legal advice on the terms of this agreement prior to signing
the agreement.
…
The Care of Children (Appointment of Additional Guardian by Parents) (Form)
Rules 2005 prescribe and explain the form that must be used for appointments of
an additional guardian under section 23 of the Care of Children Act 2004. Prescribed notes to the form explain its purpose and the nature of a guardian’s role
and discuss the completion, submission, and approval of the documents required
for parents, and so on, to appoint additional guardians. The notes also state that
‘Persons who are unsure about what it means to complete, sign, and submit this
form or about the effect of appointing or being appointed as an additional guardian should seek legal advice before completing, signing, or submitting this form’.
Other examples of similar explanations and warnings are as follows:
•
the agreement between residential property developer and purchaser in
Part 1 of Schedule of the Building (Forms) Regulations 2004;
• ‘summaries of rights’ in infringement notices, for example in form 2 of
the Schedule of the Animal Welfare (Forms) Regulations 1999;
• the fencing notice (Form No 1) in Schedule 1 of the Fencing Act 1978—
(Use of this form is not obligatory but it is given as a guide to the type
of information that should be included in a fencing notice.)
The Retirement Villages Act 2003 section 32(1) is as follows:
(1) The code of residents’ rights set out in Schedule 4 is a summary of the
minimum rights conferred on a resident of a retirement village by this Act.
Other Provisions Explaining Effect
The Misuse of Drugs Act 1975 section 12AC(3) and (4) are as follows:
(3) The requirements in section 67(8) of the Summary Proceedings Act 1957
relating to proof of any exception, excuse, or qualification do not apply to
an offence (relating to importing or exporting a precursor substance without reasonable excuse) under subsection (1).
(4) By way of explanation, the effect of subsection (3) is that, in order
for a prosecution to be successful, the prosecution must negate beyond a
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161 By signing this agreement the parties acknowledge that they have had
the opportunity to seek advice from an independent third party and legal
advice on the terms of this agreement.
Explanatory Provisions in New Zealand Legislation
29
reasonable doubt any reasonable excuse in dispute (being any matter raised
as a reasonable excuse by the defendant).
The Parole Act 2002 section 103 not only states the purpose but also similarly
explains the effect of section 104 (on release at final release date) of that Act:
103 Purpose and effect of section 104
(2) By way of explanation, the effect of section 104 is that, if it applies to an
offender, the Board is obliged to release the offender on parole at his or her
final release date, but the offender is subject to release conditions, and is
liable to recall until his or her statutory release date.
Explanations of this kind48 can, it is suggested, be very helpful to users of these
Acts.
‘See’ references
The Family Courts Rules 2002 rule 10 is as follows:
10 References to prescribed forms
(1) In these rules, a reference to a numbered form is a reference to that form
as set out in Schedules 1 to 9.
(2) For requirements to use forms, see rule 62(1) and the special rules in
Part 5 of the kind referred to in rule 62(2).
And the Overseas Investment Act 2005 section 5 is as follows:
5 Act incorporates sections 56 to 58B of Fisheries Act 1996
(1) This Act incorporates sections 56 to 58B of the Fisheries Act 1996
(which in this section are called the overseas investment fishing provisions) as if they were part of this Act, so that a reference in this Act to ‘this
Act’ includes a reference to the overseas investment fishing provisions.
(2) See section 57A of the Fisheries Act 1996 for further provisions on the
interpretation of the overseas investment fishing provisions.
Readers may be helped by invitations of this kind to ‘see’49 identified related
provisions, which are usually regarded as a special kind of cross-reference and
48
49
For other similar examples, see the Social Security (Long-term Residential Care) Amendment Bill
cll. 9 and 15, substituting new ss 142(1A) and 152(2) of the Social Security Act 1964 to explain ss
142(1) and 152 of that Act.
‘See’ and ‘see too’ appear to be italicized because of the former practice—documented by the
New Zealand Government Printing Office Style Guide (3rd edn 1981), para. 2.15.2—of italicizing the
Latin equivalent ‘vide’.
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(1) The purpose of section 104 is to provide a special form of release for offenders who are subject to long-term pre-cd sentences and whose release
would otherwise be delayed as a result of the operation of subparts 2 and 3.
30
Statute Law Review
rarely, if ever, mistaken as requirements imposed on no person and without sanction for breach.
Considerations for Drafters Contemplating Using
Explanatory Provisions
intangible property of a type listed in Schedule 17, which schedule describes intangible property that has
(a) a finite useful life that can be estimated with a reasonable degree of
certainty on the date of its creation or acquisition; and
(b) if made depreciable, a low risk of being used in tax avoidance
schemes.
Their Lordships continued:
This is an unusual definition and their Lordships are not clear what purpose is intended to be served by the words that follow ‘Schedule 17’. Are
they merely explanatory of the reasons for the selection of the particular
50
51
‘In 2004, the PCO asked Michèle Asprey, an Australian lawyer and expert in the use of plain language in legal documents to carry out an evaluation of New Zealand legislation and its drafting
from a plain language perspective. Ms Asprey conducted a wide ranging review of New Zealand
legislation … Her main recommendations were —…test existing and new features through document testing programmes and find out what readers of legislation actually think about them …
there is little overarching empirical evidence to prove that plain language techniques and visual
aids in particular aid readability in general (and even less in the legislative context), but plenty that
they do in individual cases … experiment through trial and error ’: see Tanner n 19 at para. 56.
[2004] UKPC 55 (14 December 2004). Compare the difficulties, arising from repetition of a section
heading, apparent in the case of O’Brien v Police [1999] 1 NZLR 56.
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The inclusion of explanatory provisions is justifiable, as suggested earlier, only if
they are effectual—that is only if they really help readers’ understanding (interpretation and application), whoever those readers are. Drafters’ own views in
particular cases can be considered alongside those of others, whether those others are reviewers, editorial or other proofreaders, instructing officers, or people
otherwise reader testing50 a proposed explanatory provision. (Drafters should
also beware of a bias towards including an explanatory provision simply because
of the effort expended in devising it.) In any case, the threshold question of effectiveness is not the end, but only the beginning.
A proposed explanatory provision must not only be effectual but also not cause
problems. This point is illustrated by the case of CB Simkin Trust & Anor v Inland
Revenue.51 In that case, the Judicial Committee of the Privy Council held that
some trustees’ claim to a depreciation allowance failed because they did not own
any ‘depreciable intangible property’. Their Lordships noted (paragraph 6) that
‘Section OB 1 [of the Income Tax Act 1994] defined “depreciable intangible property”’ as
Explanatory Provisions in New Zealand Legislation
31
types of intangible property that are listed in Schedule 17? Or are they
criteria that an item of intangible property of a type listed in Schedule 17
must possess in order to qualify for depreciation? These questions do not,
however, need to be answered if [as their Lordships concluded was the
situation in the case] the intangible property in question does not fall within one or other of the listed types.
EE 53 Meaning of depreciable intangible property
Meaning
(1) Depreciable intangible property means the property listed in schedule
17 (Depreciable intangible property).
Criteria for listing in schedule 17
(2) For property to be listed in schedule 17 (Depreciable intangible property), the criteria are as follows:
(a) it must be intangible; and
(b) it must have a finite useful life that can be estimated with a reasonable degree of certainty on the date of its acquisition.
Schedule 17 prevails
(3) Property that is listed in schedule 17 (Depreciable intangible property)
is depreciable intangible property even if the criteria are not met.
Defined in this Act: acquire, depreciable intangible property, property.
Compare: 1994 No 164 sOB 1 ‘depreciable intangible property’.
This article surveys not only explanatory provisions used in New Zealand legislation but also associated status provisions. Drafters using explanatory provisions must determine whether a status provision is also needed and, if so, what
form it should take. The matter is especially important if the enactment contains
a mixture of explanatory and operative provisions, and a status provision will
delineate the boundaries. Status provisions may also be important if there is a
real risk of novel explanatory provisions having unintended effects in interpretation, and the explanatory provisions cannot be recast or drawn in a way that
acceptably reduces, or even eliminates, that risk. Warnings to seek independent
legal advice may, in some cases, also be necessary or desirable.
Another consideration relevant to using explanatory provisions is whether it
will be necessary (and, if so, whether it will be difficult) to update or otherwise
52
The difficulties are only partly resolved because some may still regard the new s EE 53(2) and (3) as
redundant.
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The difficulties were partly resolved52 by a status provision in the corresponding provisions in the successor Income Tax Act 2004 (New Zealand’s largest
ever Act):
32
Statute Law Review
53
See SR 2006/48 r 4 and Schedule 1. (The replacement of the examples did not require the revocation
of the regulations to which the examples relate. But does repeal or revocation of a provision also repeal or revoke an associated example? Or should that example also be specifically repealed or revoked? Examples are indications provided in the enactment, but is the enactment for this purpose
the set of regulations or the regulation illustrated?)
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amend them during or after enactment. Enacting explanatory provisions may
well involve amending them later, and the view may be taken that the complication created by the need to make amendments later, even if they are merely consequential, is unjustified. Amendments to flow charts and diagrammatic
overviews have already been mentioned. And the examples that appear after
regulation 13 of the Social Security (Temporary Additional Support) Regulations
2005 also provide a cautionary tale. Those examples involved helpful specification of actual amounts of benefit payments. However, the detailed nature of the
examples meant that, when the benefit payment amounts were adjusted to reflect
the rate of inflation, the examples also needed adjustment to remain accurate.
This adjustment53 involved replacement of examples in their entirety before the
regulations even came into force! Being helpful can certainly involve further
work, which must also be justified.
Procedural issues may arise. An example is the way in which outline or overview provisions are dealt with in a committee of the whole House. These provisions tend to appear early in a Bill, because they often outline, or give an overview
of, the entire Bill. If the committee amends the Bill significantly (e.g. by inserting
new Parts), those amendments should be reflected in the outline or overview
provision, but it will be agreed early in the committee stage, and the committee
cannot return to it except by leave or by recommittal. One possible solution,
under Standing Orders 298(1)(c) and (4), is for the Minister in charge to have
consideration of the outline or overview clause postponed until the end of the
committee stage. However, this procedural solution has its own complications
and is by no means adopted routinely.
Political considerations may be critical. For example, particular names used in
an example may carry unwelcome connotations that did not occur to the drafter
when devising the example. (Recently enacted examples in the Income Tax Act
2004 use the apparently neutral names Professor Green, Ms Blue, Mr Indigo,
Ms Violet, Mr Yellow, and Dr Beige, and some examples avoid names entirely
and instead use only descriptions of actors or make it plain that names and addresses used are hypothetical, e.g. the actors are based in ‘Notown’.)
Pragmatic considerations may also be decisive. Do drafters, instructing officers, and others concerned have the capacity (time and other resources) to devise
and test the provisions? This question will be especially pertinent if no relevant
precedents exist that might be suitably adapted. In that situation, even if the relevant official format of legislation permits the explanatory provision proposed,
devising and settling it may require significant pioneering involving others’ policy, legal, editorial, and prepublication expertise. And if directed by decision
Explanatory Provisions in New Zealand Legislation
33
54
Compare English scholar and poet E Fitzgerald’s The Rubáiyát of Omar Khayyám: ‘And look—a thousand blossoms with the day/Woke—and a thousand scattered into clay.’ (1859), st. 8; ‘Each morn a
thousand roses brings, you say;/Yes, but where leaves the rose of yesterday?’ (4th edn 1879), st. 9.
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makers to incorporate an explanatory diagrammatic overview into a Bill, will the
drafter have any real choice in the matter?
‘Let a hundred flowers bloom: let a hundred schools of thought contend’, controversial revolutionary leader Chairman Mao reputedly exhorted the Chinese
people during the Cultural Revolution.54 Experimentation and innovation is
needed to devise, with few or no precedents, effective explanatory provisions. It
would be unfortunate, despite the tensions of departures from tradition and consistency, if there were no place for experimentation and innovation in the drafting of legislation, whether explanatory or operative. And the determination to
make communication effective is no less important, and indeed, may be more
important, in devising and using explanatory provisions, than it is in devising
operative provisions. For every enactment should be self-explanatory, whether
or not it contains explanatory provisions.
Lawyers and Conveyancers Act 2006 No l (as at Ol April2014), Public Act ll9C Ro...
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PARLIAMENTARY
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-TE TAR I TOHUTOHU
PAREMATA
New Zealand Legislation
Lawyers and Conveyancers Act 2006
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119C Royal prerogative power to appoint unaffected
(I)
(2.)
Sections I 18A and 1188 do not derogate from the power to appoint under the Royal prerogative to the
office of Queen's Counse l a person who, when so appointed, was not in the category in section 118A( I)
(and by way of explanation who, after being so appointed, is not subject to section 1188, which
imposes practice res trictions).
The powers conferred by section 119 do not derogate from the power to appoint. under the Royal
prerogative, people to the office of Queen's Counsel.
Sec lion 119C: inserted, on 3 December 20 12. by ss,;tion 6 of I he Lay,ycrs and Conveyancers Amendment Act 20 12 (20 I2 No 92}.
http :1/www .I egislation. govt .nz/act/pub Iic/2 006/000 1/latest/0 L M4 925007. html ?search... 22/ 0 5/20 14
Social Security Act 1964 No 136 (as at 14 April 2014), Public Act 12S Appeals to Su...
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Appeals to Supreme Com·t
(I)
Any person affected by a determination of the High Court made under section 120, or a determination
of the Court of Appeal made under section 12R, may apply, in accordance with the Supreme Court Act
2003, to the Supreme Court for leave to appeal against the determination.
Subsection ( I) is by way of explanation only.
(2)
Section llS: inserted. on 7 July 2010. by $s:C!jon5 oft he Social Se, urity
Am~ndmcnt
Act (No 2) 2010 (2010 No 85)
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122B Overview of infringing file sharing regime
(I)
(2)
(3)
(4)
{5)
(6)
Sections I 22A to 122U provide rights owners with a special regime for taking enforcement action
against people who infringe copyright through tile sharing.
The regime provides that, at the instigation of rights owners, I PAPs must issue infringement notices to
alleged infringers.
The 3 kinds of infringement notices, in the order in which they are given, are a detection notice, a
warning notice, and an enforcement notice.
After an enforcement notice is issued to an alleged infringer, the rights owner may take enforcement
action by seeking che following orders against the alleged infringer:
(a)
an order from the Tribunal for a sum of up to $15,000:
(b)
an order from a District Court requiring the I PAP to suspend the account holder's Internet
account for up to 6 months.
Time limits apply to all stages of the regime.
This section is by way of explanation only. If any provision is inconsistent with it, the other provision
prevails.
Section 122B· u1ser1ed. on I September 2011. by~ ofthl! C"opynght (lnfnnging File Sharing) Amcndmelll Act 20 II (20 II
No II}.
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Releasl! at final release dare
103
Purpose mul effect of section I 04
( 1)
The purpose of section 104 is to provide a special form of release for offenders who are subject to long
-tem1 pre-cd sentences and whose release would otherwise be delayed as a result of the operation of
sybparts 2 and 1.
By way of explanation, the effect of section 104 is that, if it applies to an offender, the Board is obliged
to release the offender on paro le at his or her fina l release date, but the offender is subject to release
conditions, and is liable to recall unti I his or her statutory release date.
(2)
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Education Act 1989 No 80 (as at 23 April 20 14), Public Act I 59ABA Outline of fram.. . Page l of 1
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159ABA O utline of fr a mework for planning, fundin g, and m onitoring in tertiary
education sector
( 1)
(2)
(3)
This section(a)
sets out a general outline of the framework for planning, fun ding, and mo nito ring in the tertiary
education sector: and
(b)
is by way of explanation onl y.
If any other section in th is Act conflicts with this section, the other section prevails.
The following steps describe, in general terms, how the framework for planning, funding. and
monitoring in the tertiary education sector works:
(a)
the Minister d etermines the design of fu nding mechanisms and whethe r funding under those
mechanisms is via plans:
(b)
the Commission develops the details of how to implement funding mec hanisms:
(c)
the Commission issues guidance on what must be contained in proposed plans:
(d)
the Commission identifies criteria for assessing proposed plans:
(e)
an organisation prepares a proposed plan(i)
in consultatio n with the stakeholders the organisation considers ought to be consulted
and any other persons specified by the Commission; and
(ii)
in a ma nner consistent with the Commission's guidance:
(f)
the organisation submits its proposed plan to the Commission:
(g)
the Commission applies assessment criteria to the proposed plan and decides whether or not to
give funding approval:
(h)
if the proposed plan is given funding approval, the Commission dctennines the amount of
funding payable to the organ isation by applying the appro priate funding mechanism :
if an organisation's proposed plan receives fund ing approval. the Com mission monitors the
(i)
organisation's perform ance to determine if it is achieving, or has achieved, the outcomes it has
specified in its plan.
Sccuon 151JABA msertcd, on I January 2008, by secoon 12 of the Education (Tert•ary Reforms) Amcndm~nt Act 2007 {2007 No
106)
http://www.legislation.govt.nz/act/public/ 1989/0080/ Jatest!OLM 1149623 .html ?search...
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Social Security (Long-term Residential Care-Budget Measures) Amendment Act 20...
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PARLIAME NTARY
COUNSEL OFFICE
------TETAIU TOHUTOHU
PAREMATA
New Zealand Legislation
Social Security (Long-term Residential CareBudget Measures) Amendment Act 2012
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[
l)art 1
Applicable asset thresholds: Indexation
4
Purpose and application
(I}
This Part amends the Social Securitv Act 1964 to ensure that the long-term residential care applicable
asset thresholds for the year I July 20 II to 30 June 2012 are on I July in 2013, and on every following
I July, subject to a required annual Consumers Price Index (or CPI) adjustment.
By way of explanation, the applicable asset threshold is the value of assets applied to determine
whether a resident assessed as requiring care must use his or her assets to pay the cost of contracted
care services provided to the person,
The principal Act as amended by this Part on I July 2012 applies in respect of residents assessed as
requiring care before, on, or after I July 2012.
(2}
(3)
http://www.legislation.govt.nz/act/public/20 12/0040/latest!DLM44817 l 4.html?search... 22/05/2014
Misuse of Drugs Amendment Act 2005 No 81 (as at 18 July 20 13), Public Act 10 Ne...
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PARJ. IAMENTARY
COUNSEL OFFICE
---------------TE TAR I TOHVTOHU
PAREMATA
New Zealand Legislation
Misuse of Drugs Amendment Act 2005
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L_. - - - - --10
--------------------------·
New sections 12AB and J2AC inserted
The principal Act is amended by inserting, after section 12A, the following sections:
·' 12AB Offence to knowingly import or export precursor substances for unlawful use
"(I)
"(2)
"(3)
Every person commits an offence who"(a) imports into New Zealand any precursor substance knowing that it will be used to commit an
offenc-e under section 6( I )(b) (which is the offence of producing or manufacturing any
controlled drug); or
"(b) exports from New Zealand any precursor substance knowing that it will be used to commit an
offence under a provision of the law of the country to which the precursor substance is being
exported that corresponds to an offence under section 6(1)(b).
A person who commits an offence under subsection (1) is liable on conviction on indictment to
imprisonment for a tenn not exceeding 7 years.
If a person is summarily convicted of an offence under subsection (l ),"(a) a court may sentence the person to imprisonment for a tenn not exceeding l year or a fine not
exceeding $1,000, or both; and
''(b) the sentencing limits contained in section 7 of the Summary Proceedings Act 1957 do not
apply.
" J 2AC Offence to import or e~po rt precursor substa nce without reasonable excuse
'"( I)
"(2)
''(3)
"(4)
"(5)
Every person commits an offence who, without reasonable excuse, imports into, or exports from, New
Zealand any precursor substance.
Without limiting the circumstances under subsection ( 1) in which a person may have a reasonable
excuse, a person has a reasonable excuse if"(a) he or she imports a precursor substance into New Zealand in order that"(i)
a medical practitioner, dentist, or veterinarian may, in the circumstances referred to in
section 8(2)(a), produce or manufacture a controlled drug from the precursor substance;
or
"(ii) a pham1acist or any person with the authority and under the immediate supervision of a
pharmacist may, in any of the circumstances referred to in section 8(2)(b), produce or
manufacture a controlled drug from the precursor substance; or
.. (iii) the precursor substance be used for a lawful purpose (including, without limitation, an
agricultural, commercial, or industrial purpose); or
"(b) the precursor substance that he or she is importing into, or exporting from, New Zealand has
been lawfully supplied to that person for his or her own medical use; or
"(c) he or she exports a precursor substance from New Zealand in order that the precursor substance
be used for a purpose that is authorised or lawful under the Jaw of the country to which it is
being exported.
The requirements in section 67(8) of the Summary Proceedings Act 1957 relating to proof of any
exception, excuse, or qualification do not apply to an offence under subsection (I).
By way of explanation, the effect of subsection (3) is that, in order for a prosecution to be successful,
the prosecution must negate beyond a reasonable doubt any reasonable excuse in dispute (being any
matter raised as a reasonable excuse by the defendant).
A person who commits an offence under subsection (I ) is liable on summary conviction to
imprisonment for a term not exceeding l year or a fine not exceed ing $1,000. or both.''
http://www .legislation. govt. nzlact/public/2005/0081 /Jatest/D LM3 5623 7.html ?search=... 22/0 512 0 14
Telecommunications (Interception Capability and Security) Act 2013 No 91, Public A... Page 1 of 1
PARLIAMENTARY
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TE TARI TOHUTOHU
PAREMATA
New Zealand Legislation
Telecommunications (Interception Capability
and Security) Act 2013
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c ••_
. - - - - - - - - - -- --
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-- ....
'
__ _
. . .._'
0
Ministerh1f directions and regulations relaring to lower-level compliance duties
16
Overview of sections 17 to 19
( l)
The purpose of sections 17 to 19 is to enable the Minister, on the application of a surveillance agency,
to, (a)
in the case of a network or service that by the operation of section I 3 or J1 is subject to a lower
-level compliance duty, direct that the network or service or part of the network or service must
instead be subject to a higher-level com pi iance duty:
(b)
direct that an infrastructure-level service or part of that service must be su~ject to a higher-level
compliance duty.
The following duties are ranked according to the level of interception capability that is required to fulfi l
the duty (with the duty set out in paragraph (a) being the highest level compliance duty):
(a)
the duty to comply with sections 9 and l.Q:
(b)
the duty to be intercept ready:
the duty to be intercept accessible.
(c)
This overview is by way of explana1ion only. If any provision of this Part conflicts with this overview,
the other provision prevails.
(2)
(3)
http://www.legislation.govt.nz/act/public/20 13/009 1/latest!DLM5178044.html?search... 22/05/2014
Civil Union Act 2004 No 102 (as at 01 July 20 13)) Public Act 4 Overview of civil uni...
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PARLIAMENTARY
COUNSEL OFFICE
-TS TAR I TOHUTOHU
PAREMATA
New Zealand Legislation
Civil Union Act 2004
• with search matches highlighted
4
Overview of civil union
(I)
Two people, whether they are of different or the same sex, may enter into a civil union under this Act
if( a)
they are both aged 16 or over (but people aged 16 or 17 must obtain consent- seesection 19):
(b)
they arc not within the prohibited degrees of civil union as set out in Schedule 2 (but in some
cases a court may dispense with this prohibition-see~~s;tjon I 0):
(c)
they are not currently married or in a civil union with someone else (but married couples may
enter into a civil union with each other-seesection I 8).
A civil union may be solemnised by a Registrar or, if a Registrar has issued a licence, by a civil union
celebrant or an exempt body.
After a civil union is solemnised, it is registered as a civil union under Part 7A of the Births, Deaths,
Marriages, and Relationships Registration Act 1995.
The dissolution of a civil union is governed by the Family Proceedings Act 1980.
This section is by way of explanation only. If a provision of this or any other Act is inconsistent with
this section, the other provision prevails.
(2)
(3)
(4)
(5)
Section 4(3): amended. on 24 January 2009. by S('Ction 47 of the Births. Deaths. Marnagcs, and Relationships Registration
Amendment Act 2008 (2008 No 48).
http://www.legislation.govt.nz/act/public/2004/0 I 02/latest/DLM32341 O.html?search= ... 22/05/2014
Insolvency Act 2006 No 55 (as at 05 December 2013), Public Act 7 Nature of bankru...
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PARLIAMENTARY
COUNSEL OFFICE
------TE TAR I TOHUTOHU
PARI!MATA
New Zealand Legislation
Insolvency Act 2006
• Warning: Some amendments have not vet been incorporated
• with search matches highlighted
L- . -
- --#--- . · - - -
. --
---· -- -~
Part 2
Nature of bankruptcy, and process of being made
bankrupt
Subpart' 1----Bankruptcy and its alternatives
7
Nature of bankruptcy
( I)
Bankruptcy affects the legal status of a person and has important consequences. These include(a)
the bankrupt's property vests in the Official Assignee:
(b)
the bankrupt is limited in the business activities he or she can undertake:
(c)
the Official Assignee may be entitled to recover assets that the bankrupt has transferred before
bankruptcy.
This section is intended only as a guide to the consequences of bankruptcy.
(2)
http:/ /www.Iegi slation. govt.nz/act/ public/2 006/005 5/latest/D LM3 85866.html ?search=. .. 22/0 5/20 14
Insolvency Act 2006 No 55 (as at 05 December 2013), Public Act 8 Alternatives to ba... Page l of 1
PARUAMBNTARY
COUNSEL OFFICE
-
1'li TAR I TOHlfTOiiU
PAREMATA
New Zealand Legislalion
Insolvency Act 2006
.. l
:
• Warning: Some amendments have not yet been incorporated
L__ .. ~~t~s:~~~~matc~-e~~~hlighted · --
.
I
...... ··-
· - - - -- .• - I
8
Alternatives to bankruptcy
(I)
A debtor who is insolvent may have an alternative to bankru ptcy. such as( a)
making a proposal to credi tors (seesubpart 2 of Part 5); or
( b)
paying creditors in instalments under a summary instalment order (seesubpart 3 of Part 5); or
(c)
entry to the no asset procedure (seesubpart 4 of Part 5).
This section is intended only as a guide to the alternatives to bankruptcy.
(2)
http://www .legislation.govt.nzJact/public/2006/005 5/latest/DL M385867 .html ?search=... 22/0 5/2014
Crown Entities Act 2004 No 115 (as at 16 December 20 13), Public Act 7 Meaning of...
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PARLIAMENTARY
COUNSEL OFFICE
-------TGT.ARI TOHt!TOHU
PAREMATA
New Zealand Legislation
Crown Entities Act 2004
Warning: Some amendments have not yet been incorporated
• with search matches highlighted
-- 7
Meaning of Crown entity and categories of Crown entities
(I)
In this Act, Crown entity means an entity within one of the following 5 categories:
(a)
statutory entities:
What are they?
These
are
bodies
corporate that are
establ ished by or under
an Act
(b)
Definition
An entity or
office named in
Schedule I
Oiffercnl types
Crown agents (which must give effect to
govemment policy when directed by the
responsible Minister). These are named in Part
! of Schedule I
Autonomous Crown entities (which must
have regard to government policy when
directed by the responsible Minister). These
are named in Part 2 of Schedule I
Independent Crown entities (which are
generally independent of government policy).
These are named in Part 3 of Schedule I
Crown entity companies:
What are they?
These are companies incorporated under the Companies Act 1993
that are wholly owned by the Crown
(c)
Definition
A company that is(a)
a subsidiary of another Crown entity
under sections 5 to 8 of the
Companies Act 1993; or
(b)
a multi-parent subsidiary of 2 or
more Crown entities
school boards of trustees:
What are they?
These are boards that are bodies
corporate constituted under the
Education Act 1989 (including
correspondence schools)
(e)
Definiti on
A company named in
Schedule:!
Crown entity subsidiaries:
What are they?
These are companies incorporated under
the Companies Act 1993 that are
controlled by Crown entities
(d)
~- ----i
Definition
A body that is a board of trustees constituted under
Part 9 of the Education Act 1989 and includes a board
of a school designated as a correspondence school by
the Minister of Education under section 152 of the
Education Act 1989
tertiary education institutions:
What are they'!
Definition
http:I/www. legi slation. govt. nz/act/pub Ii c/2004/0 11 5/latest/0 LM3 29641. html ?search= ... 2210 5120 14
Electricity Industry Act 20 I 0 No 116 (as at 0 l Apri l 2014), Public Act 72 Purpose and ... Page I of I
New Zealand Legislation
Electricity Industry Act 2010
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L---·.. · - -- --·· - -
- - · - - -· .. ·-- - - - - - - - -. - - . - --- - - - - · · - - -- - ··--· . - - - ·
Part 3
Separation of distribution from certain generation and
retailing
Subpart !--Separation of distribution from certain
generation and retailino-b
~
Purpose and owline of Part
72
l'u rpose a nd outline of this Part
( l)
The purpose of this Part is to promote competition in the electricity industry( a)
by prohibiting a person who is involved in a distributor from being involved in a generator
where that may create incentives and opportunities to inhibit competition in the electricity
industry; and
(b)
by restricting relationships between a distributor and a generator or a retailer, where those
relationships may not otherwise be at arm's length.
In general tenns, this Part imposes rules in respect of distributors as follows:
ownership separation, if a person is involved both in a distributor and in a generator with more
(a)
than 250 MW of generation directly connected to the national grid:
corporate separation and arm's-length rules, if a person is involved both in a distributor and in
(b)
either or both of(i)
a generator that generates more than 50 MW of generation connected to the distributor's
network:
(ii)
a retailer that retails more than 75 GWh per year to customers connected to the
distributor's network:
(c)
use-of-systems agreement rules, if a connected retailer retails more than 5 GWh per year to
customers connected to the distributor's local network:
ru les preventing persons involved in d istributors from paying retailers in respect of the transfer
(d)
of retail customers:
(e)
no-discrimination rules that apply when distributors, or electricity trusts or customer cooperatives involved in distributors, pay dividends or rebates.
Subsection (2) is intended only as a guide to the general scheme and effect of this Part.
(2)
(3)
Compare: 1998 No 88 s 1!2l
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.Judic ial Conduct Commissioner and Judicial Conduct Panel Act 2004 No 38 (as at 01 ... Page 1 of 1
PARUAMBNTARY
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New Zealand Legislation
Judicial Conduct Commissioner and Judicial
Conduct Panel Act 2004
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~
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Preliminary pr01•isions
3
Overv iew of process
(I)
(2)
A diagrammatic overview of the process established by this Act is set out in Schedule ! .
The diagram is intended as a guide only.
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Weathertight Homes Resolution Services Act 2006 No 84 (as at 01 January 2014), Pu...
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PARLIAM E NTARY
COUNSI:L OFFICE
------TF. TARI TOHUTOHU
PA'REMATA
New Zealand Legislation
Weathertight Homes Resolution Services Act
2006
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5
Overviews of types of claims
(I)
A diagrammatic overview of the types of claims under this Act by owners of dwellinghouses is set out
in Schedule I.
A diagrammatic overview of the types of claims under this Act by representatives of multi-unit
complexes is set out in Schedule 2.
The diagrams are intended as a guide onl y.
(2)
(3)
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Financial Service Providers (Registration and Dispute Resolution) Act 2008 No 97 (as... Page 1 of 1
PARtiAMENTARY
COUNSEL OFFICE
------TE TAR I TOHUTOHU
PARE.\\ATA
New Zealand Legislation
Financial Service Providers (Registration and
Dispute Resolution) Act 2008
f
-.
I
• Warning: Some amendments have not yet been incorporated
1
I
• with search matches highlighted
I
I- ...
Part 1
Preliminary provisions
3
Ovet·view
(I)
(2)
This Act requires 11nancial service providers to be registered.
In order to be registered, financial service providers are generally required to be members of a dispute
resolution scheme if they provide financial services to retail clients.
The Act sets out how a dispute resolution scheme may be approved by the Minister, why the approval
might be withdrawn, and how a dispute resolution scheme may be appointed as the reserve scheme.
The Act provides that the reserve scheme is to act as the default dispute resolution scheme and is to be
capable of resolving disputes relating to all types of financial service providers.
This section is intended as a guide only.
(3)
(4}
(5}
St'ction 3(2}: substituted, on I July 2010, by seo:t10n il of the Finant'ial Service l'roviders (Registration and Dispute Resolution)
Amendment Act 2010 (2010 No41).
http://www .legislation.govt.nz/act/public/2008/0097/latest/DLM 11 0943 3 .html?search... 22/05/2014
Judicature Act 1908 '\Jo 89 (as at 05 December 2013), Public Act 7.1AA Outline of ca ... Pagel of I
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--------
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New Zealand Legislation
Judicature Act 1908
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<
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Pa11?
Case management. interlocutory applications, and interim
relief
Subport 1---Case management
Schcdul~
2 Pan 7 sub pan I: replaced. on 4 February 20 13, by wk..!..Q of the High Cour t Amendment Rules (No 2) 2012 (SR 20 12/409)
7.1 AA Outline of case management procedures for different types of proc<..--edings
(I)
(2)
An ordinary defended proceeding or a complex defended proceeding( a)
is subject to a first case management conference (see£!!k.L..l):
(b)
may be the subject of 1 or more further case management conferences (seernle 7.4):
may also be the subject of an issues conference (seerule 7.5):
(c)
(d)
if the proceeding is being. or has been. allocated a hearing or trial date, may be the subject of a
pre-trial conference (seerule 7.8).
An appl ication for leave to appeal. or an appeal, under Part 20 (Appeals). Pan 21 (Cases stated), or Part
22 (Arbitration Act \996) is subject to case management under different provisions (seerulcs 7.1 4 and
1.11).
(3)
(4)
(S)
(6)
(7)
A proceeding commenced by originating application is subject to limited case management through tht
ability ofthe parties to seek directions (seerulcs 19.1 I andM,lA).
A proceeding on the commercial list is subject to limited case management through the ability of
parties to seek directions (seerules 29.10 to 29.12).
An application for judicial review may be subject to case management under section \0 of the
Judicature Amendment Act 1972 and any rules relating to the case management of such proceedings.
The follow ing proceedings are not subject to case management:
undefended proceedings:
(a)
(b)
an appl ication under~ (Insolvency) or Part 31 (Companies: Liquidation).
This rule o perates only as a guide, and if any other provision of these rules or any other enactment is
inconsistent with this rule, that other provision or enactment prevails.
Schedule 2 rule 7. 1AA:
20 1)/425)
in~rted ,
on II November 2013. by rule ltJ of the l-ligh Court Amendment Rule~ (No 3) 20 13 (SR
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