Most Read Contributor in New Zealand, September 2016
Commercial, contract and civil liability law are in the
cut for modification and amendment in the Revision Bill programme
for the 2015 to 2017 Parliamentary term.
The full list of legislation to be revised can be found
A new mechanism for statute revision
Revision Bills may do things like remove typos or redundant
provisions, renumber or rearrange Acts, change language and
punctuation, and provide new purpose provisions. But there is only
very limited scope for them to seek to change the substantive
effect of the legislation they replace.
Specifically, they can update monetary amounts to reflect
movements in the Consumer Price Index, or make "minor
amendments to clarify Parliament's intent, or reconcile
inconsistencies between provisions".
The Legislation Act 2012 requires the Attorney-General to
prepare a draft three-yearly programme of Revision Bills for
approval by the Cabinet for presentation to Parliament.
Each Bill must be drafted by the Parliamentary Counsel Office
(PCO) and certified by an expert panel as an appropriate
exercise of revision powers and not changing the effect of the law
except as authorised, before it is introduced to the House of
The expert panel is the President of the Law Commission, the
Solicitor-General, a retired High Court Judge (the current nominee
is Hon John Priestley CNZM QC) and the Chief Parliamentary
The Bill then goes through the usual legislative process, but
presumably with greater than usual alacrity, given its subject
matter and advance scrutiny. That said, Parliament can amend
revision Bills for any purpose, including to change the law.
In the programme for this term are 18 statutes, including the
commercially significant Contractual Remedies Act 1979, Sale of
Goods Act 1908, and Law Reform Act 1936.
Chapman Tripp comments
Announcing the first Revision Bill programme, Attorney-General
Christopher Finlayson last week described it as "a banner
day for the New Zealand statute books". He said it would
make the law clearer and more accessible, and would reduce
We agree the programme has potential to deliver these benefits.
But it also raises some interesting constitutional issues.
First, revision Acts may disturb the accepted relationship
between Parliament and the courts. It is the courts' role to
interpret Parliament's intention. But the revision process
gives Parliament the opportunity to reassert what it says its
intention was all along, irrespective of what the courts may have
Second, revision Acts create the possibility for unintended
changes of meaning. Revision Acts are deemed "not intended
to change the effect of the law as expressed in the Acts ...
repealed by and incorporated in the revision Act", except
if they expressly provide that a particular provision is intended
to change the effect of the law.
Even with that instruction, what is a court to do when faced
with new legislation that is irreconcilable with the old? No
palatable compromise seems available – either the new
legislation is to be construed as consistent with the old, which
undermines the intention of the former; or the new legislation is
to be given primacy over the old, which guts the latter.
Third, the first-up candidates for the Revision Bill treatment
are far from being in a state of legal certainty. See, for instance
the Supreme Court's recent decision on the interpretation of
the Contractual Remedies Act in Kumar v Station Properties, which
added to the jurisprudence on essentiality of contractual terms.
This puts a heavy responsibility on the PCO accurately to
anticipate legislation's meaning, the case law on which is
We advise on the interpretation of many of these statutes daily,
and will be watching developments closely.
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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