LAC Guidelines Chapter 3A: Statutory Interpretation
The following issues are discussed in this chapter:
Part 1: Have the rules of statutory interpretation been considered?
Part 2: Has the Interpretation Act 1999 been considered?
Part 1: Have the rules of statutory interpretation been considered?
If there is a dispute over the meaning of expressions in an Act, the case may go to court, and the court's interpretation will be authoritative. It is thus important that those preparing Acts are mindful of the rules and conventions used by courts in interpreting Acts.
The main rule
The main rule for the interpretation of statutes in New Zealand is contained in section 5(1) of the Interpretation Act 1999.
(1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.
This rule, important though it is, needs to be supplemented in certain ways. First, it is not just the dictionary meanings of words that matter. Context is vital. Most words have several shades of meaning, and it is not possible to determine which one is appropriate unless one has regard to the context in which the words appear. Secondly, the rule omits the fact that matters extraneous to the Act may affect the way it is interpreted: common law, other statutes, and international treaties are only some of the matters which may be relevant in arriving at the correct interpretation of the provision in question. Thirdly, cases involving the interpretation of Acts are usually not just about the meaning of the words in the abstract, but rather are about determining how those words apply to factual situations, often situations which were not precisely foreseen by the drafter of the Act. In many cases of this kind the question is not so much one of resolving an ambiguity in language; rather it is about determining whether a word can legitimately extend to cover the facts of the case in question.
Bearing all this in mind, the true interpretation of a provision is generally its most natural reading taking into account purpose and relevant context. Artificial or strained meanings are not to be adopted without good reason.
However even this is too simple. Sometimes if other features, in particular the purpose of the provision, are strong enough, the courts may be willing to place a more strained interpretation on its words.
Every word of an Act must be read in the context of the other words of the section in which it appears; the part of the Act in which it is situated; and the scheme of the Act as a whole.
All words take their colour from the words immediately surrounding them. This is sometimes called the noscitur a sociis rule.
The part of the Act
A provision must be read in the light of the subject matter of the part of the Act in which it appears. Sometimes apparently general provisions need to be read down and confined to the subject matter of the part in question.
The scheme of the Act
Before settling on an interpretation of a provision it is vitally important to read that provision in the context of the Act as a whole. This is so for the following reasons:
- Many Acts have a consistent purpose, theme, or philosophy which the reader must thoroughly understand before attributing a meaning to any of its provisions.
- Sometimes a reader's initial impression of a section needs to be modified or qualified in the light of other provisions of the Act.
- Sometimes the answer to the question to which the reader is seeking an answer is found not in the express provisions of any one section but rather in indications in a number of sections. Thus the Marriage Act 1955 contains no section specifically providing that it applies only to marriages between a man and a woman. But that is the clear conclusion derived from a careful reading of the Act as a whole.
Section 5(2) and (3) of the Interpretation Act 1999 provide as follows:
(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.
It should be noted in particular that as a result of section 5(2) and (3), marginal notes and part headings are now available for interpretative purposes. Previously, part headings were not, and there was some doubt about marginal notes. However, none of the aids referred to in section 5(2) and (3) are determinative. They are guides only. The words of the substantive enacting provisions must prevail when they are clear. It is of the essence of marginal notes and part headings that they are very brief indications of the subject matter; they can thus never be a precise guide. Moreover, usually as a result of amendments to a provision during its passage through Parliament, marginal notes can on occasion be quite misleading.
Many modern Acts contain an object section which states, often in some detail, the purpose of the Act. Until the year 2000, many Acts also had long titles which served a similar function. Purpose provisions are of key importance given the injunction in section 5(1) of the Interpretation Act 1999 that enactments are to be interpreted in the light of their purpose. Every provision of an Act should, if possible, be interpreted consistently with that purpose provision. Moreover, if the Act confers powers on persons or institutions those powers should be exercised consistently with the purpose so stated.
Most Acts contain near the beginning an interpretation section which provides a dictionary for the Act by defining a number of key words and phrases which appear throughout the body of the Act. The words and phrases thus defined may be ones which could otherwise give rise to ambiguity, or ones which are abbreviations or even coined terms to enable the ensuing provisions of the Act to be drafted with more economy. Definitions of some words are introduced by the word "means", and of others by "includes". As a rule, the word "means" introduces an exhaustive definition. "Includes", however, introduces an incomplete definition; the definition given contains some of the things the word can cover, but admits the possibility it may cover other things as well.
Nevertheless, everything depends on context, and on rare occasions "includes" can herald an exhaustive definition.
It is common in New Zealand Acts for an interpretation section to commence with the phrase: "In this Act, unless the context otherwise requires". This phrase indicates that, particularly in a long Act where the word in question appears several times, there may be occasions where it does not bear its defined meaning. But the statutory definition is displaced only where there are strong indications to the contrary in the context.
Rules of language
Some rules of language may be of assistance in interpretation.
- One cannot read into a list things which are not expressly stated. This is sometimes expressed by the Latin phrase expressio unius est exclusio alterius.
- It is assumed that the same word bears the same meaning wherever it is used in the Act.
- It is assumed that where different words are used they bear different meanings.
- It is assumed that every word in a provision bears a meaning and is not surplusage.
- If a list of specific items is followed by a general word, it is assumed that if the specifics are all examples of a class the general word is likewise confined to that class. This is the ejusdem generis rule.
However, these "rules" are no more than guidelines, and they readily give way to counter-indications. Lord Nicholls has said:
Linguistic arguments ... should be handled warily. They are a legitimate and useful aid in statutory interpretation, but they are no more than this ... In the process of statutory interpretation there always comes a stage, before reaching a final decision, where one should stand back and view a suggested interpretation in the wider context of the scheme and purpose of the Act. After all, the object of the exercise is to elucidate the intention fairly and reasonably attributable to Parliament when using the language under consideration.
The so-called "rules" make their appearance far less frequently in judgments than they used to. Thus, the purpose of the Act may indicate that a general word following a list of specifics was truly meant to be general; and sometimes the intent of a provision may be crystal clear despite the fact that words have been inadvertently omitted or unnecessarily inserted. We shall take up this point again in the context of the purposive approach.
As section 5(1) of the Interpretation Act 1999 makes clear, a provision must be interpreted in the light of its purpose. Section 5(1) replaces the old section 5(j) of the Acts Interpretation Act 1924.
The purpose of the Act as a whole may be derived in various ways:
- a purpose or object provision in the Act may summarise it;
- it may be evident from reading the Act as a whole;
- it may be able to be derived from knowledge of the social or economic mischief the Act was passed to remedy;
- it may be discovered from extrinsic material such as parliamentary debates or committee reports.
At other times, one is concerned with the purpose of one provision in an Act rather than the purpose of the Act as a whole. It may be obvious from a careful reading of the provision what its purpose is; at other times extrinsic material may be helpful.
The purposive approach to interpretation has gained much ground in recent years. It is now the dominant approach. It ensures that narrow "literal" meanings are not attributed to words if that would defeat Parliament's purpose. It operates in a number of ways:
- It can enable a word to be given an extended, even strained, meaning to cover the facts of the case although there are obviously limits as to how far this can be taken.
- It means that drafting deficiencies will not impede interpretation as long as the purpose of the provision is clear. Words can be ignored as surplusage, and normal linguistic conventions can be departed from, to give effect to that clear purpose. It has been said that a court can even correct obvious drafting errors.
- It provides the limits within which a statutory power or discretion may be exercised.
- It induces a weakening of some of the old so-called "presumptions" that certain classes of Act, for example, penal and tax Acts, were to be strictly construed in favour of the individual. There are judicial dicta to the effect that Acts in these categories are now to be interpreted in the same way as others.
The purposive approach ensures that Acts will be made to work as Parliament intended them to, rather than being subjected to an artificially strict construction which could impede Parliament's will.
Nevertheless, it is important to note the limitations on the purposive approach. First, it is the text of the Act which is being interpreted, and words can only be stretched so far. Even the purposive approach does not allow words to be given meanings they cannot bear. Secondly, the purposive approach needs to be balanced against, and sometimes reconciled with, the approach to interpretation which gives effect to the fundamental values of our legal system. We refer to this later. Thirdly, it is important that the purposive approach only be used when it is quite clear what the parliamentary purpose is. It does not entitle interpreters to guess at purpose, or invent one of their own.
Section 6 of the Interpretation Act 1999 provides as follows:
6 An enactment applies to circumstances as they arise.
The earlier version of this in the Acts Interpretation Act 1924 (section 5(d)) contained the indicative phrase that the law "shall be considered as always speaking". This recognises the fact that many Acts have been in force for many years and operate today in a society very different from those in which they were originally enacted. Sometimes Judges are required to engage in a fairly liberal interpretation to ensure that the purpose of an old Act is fulfilled in today's different conditions. Thus, it has been held that a computer programme is a "document" for the purposes of the fraud provisions in the Crimes Act 1961, that computer hacking is "damage to property"; that Internet images are "photographs", and that the phrase "member of the family" includes a gay partner. If courts were unable to take such an approach, Parliament would need constantly to be amending old Acts. Nevertheless, there are limits on the updating or "ambulatory" approach. The activity under scrutiny must be within the purpose of the original legislation; the words of the Act must be able to bear the meaning, albeit a very liberal one, which is placed upon them; and the interpretation given must not be such a dramatic change in the law that it should have been left to Parliament rather than the courts.
In interpreting Acts, courts routinely refer to materials external to the Acts. There is greater readiness in this regard today than there used to be. One still finds occasional statements that some sorts of extrinsic materials (in particular, legislative history) should not be referred to if the Act is clear as it stands, but that is not a significant constraint. By the time a case has reached the courts, it is almost always possible to raise some doubt or ambiguity which will justify reference to these other materials. In fact, even legislative history is usually now admitted if counsel so request. Extrinsic materials may be referred to for a number of reasons. Sometimes they are merely contextual; if one understands the genesis and setting of an Act one usually understands the Act itself more readily. Sometimes they are used the better to understand the purpose of the legislation. Sometimes courts refer to them to ensure that a proposed interpretation is consistent with other elements in the legal system.
Some of the extrinsic materials that may be referred to include the following.
It is very common for one Act of Parliament to be read in the context of other Acts on similar topics. Sometimes this is valuable by way of comparison so that one can assess the importance of the different wording used in the different Acts. More often, though, it is used to ensure consistency across the system. If a provision of one Act is apparently inconsistent with one in another Act, the court will make an effort to reconcile them, perhaps by reading one of them down, or by deciding that one of them is to be read as a special code which stands as an exception to the more general provisions of the other. If provisions of two Acts are irreconcilably inconsistent, the court may, as a last resort, hold that the second in time impliedly repeals the earlier. It very seldom needs to go to this extent.
Interpretation Act 1999
In addition to laying down principles of interpretation, the Interpretation Act 1999 contains provisions to assist in achieving the goal of consistency across all statutes. Thus:
- In Acts passed earlier than 1 November 1999 the masculine gender includes the feminine.
- In all Acts the singular includes the plural, and vice versa.
- There are rules for calculating distance and time.
- There is a section allocating universal definitions to words commonly used in enactments. Thus, words like "Act", "enactment", "month", "person", "prescribed", "public notice", "repeal", "summary conviction" and "writing" (among others) are given definitions which are to apply in every enactment unless the enactment otherwise provides or its context otherwise requires. These universal definitions are sometimes overlooked by interpreters.
Acts which have been repealed and replaced by the one under consideration are often referred to for interpretative purposes. They may be relevant as demonstrating the origin of a particular word or phrase; and changes in wording between the versions can sometimes be significant. Nevertheless, it is important not to attach too much significance to the latter. Now that plain English drafting is beginning to replace the older styles it may sometimes be that changes in wording have no purpose other than to express the same concept in more elegant language.
The common law has a long history, and has shaped some of our most fundamental areas of law, including contract and tort. If statutes are enacted in those areas there is sometimes a question as to how significantly, if at all, they change the common law. While it has been authoritatively stated that it is only if the words of the statutory code are "of doubtful import" that one should seek assistance from the earlier common law, it is in fact quite common for courts to interpret statutes as not departing from established common law principles. Thus, the Contractual Remedies Act 1979, which enacts an apparently simple code about misrepresentation and cancellation of contract for breach, has on several occasions being interpreted by the Court of Appeal as not disturbing established common law principles. It is most important, however, to adopt this style of interpretation only after very careful consideration. Some Acts were passed to remedy defects in the common law, and it would be to stultify their purpose to hold that they perpetuated it. It is important always to familiarise oneself thoroughly with the purpose of the Act; this may indeed have been to reform rather than preserve the common law.
Another question can sometimes arise: that is, whether a statute replaces a common law principle or rather preserves it and provides a new statutory rule which can operate in tandem with it. Thus, for example, it was held under the Employment Contracts Act 1991 that instead of relying on the personal grievance provisions of the Act an employee who was wrongfully dismissed could continue to rely on the old common law remedies for breach of contract. Such questions require a careful consideration of the purpose of the legislation and whether it is so inconsistent with the common law that the latter cannot sensibly continue to operate in parallel.
Some Acts are passed to implement treaties into our domestic law. Others simply deal with a subject matter on which there happens to be international treaties to which New Zealand is a party. In both cases the courts strive to interpret the domestic Act consistently with the relevant international treaties. It is important that treaties be given effect to consistently across the countries which are parties to them, and the courts realistically assume that Parliament would not wish to legislate inconsistently with New Zealand's international obligations. If the wording of the domestic Act is clearly inconsistent with the treaty, the Act must prevail, but an effort will be made to interpret the domestic Act to avoid such inconsistency.
A similar approach applies to the Treaty of Waitangi. Again, it is a realistic assumption that Parliament did not intend to legislate inconsistently with the Treaty, and where possible Acts will be construed so that they do not infringe its principles.
Social, economic, and environmental context
Courts sometimes have regard to social, economic, and environment factors to better understand the purpose and intent of a statute. This type of material can assist in a number of ways.
- An examination of the historical context prior to the passing of the Act may lead to a better understanding of the problem or mischief it was meant to remedy, and, consequently, of its purpose.
- It can be helpful to understand the current conditions in which the Act must continue to operate; this is particularly so of specialist statutes such as the Commerce Act 1986 and the Resource Management Act 1991.
- It may enable an interpreter to assess what the result of a particular interpretation is going to be. For example, when the Court of Appeal had to determine whether future earnings should be classified as matrimonial property it received evidence to enable it to understand the effects of such an interpretation on the relevant communities of interest.
Nevertheless, it has been said in relation to this sort of material, that theory and practice are not well-developed in this country; "the basis on which judges should receive extra-statutory contextual information ... presently remains elusive in New Zealand".
Although they were once excluded from consideration, it is now not uncommon for courts and other interpreters to refer to legislative or parliamentary history to assist in the interpretation of Acts. Among the materials which are referred to in this way are:
- reports of committees recommending legislation;
- explanatory notes to Bills;
- amendments made to Bills during the parliamentary process;
- commentaries of parliamentary select committees;
- parliamentary debates as reported in Hansard.
Most often such materials are referred to simply to provide contextual background, but on occasion they can be helpful in providing indications of the purpose of a provision, or sometimes even evidence of the intended application of a provision to a particular situation. Extracts from Ministers' speeches in parliamentary debates are the most commonly referred to. However, caution is required. Only the words of the statute as enacted represent the intention of Parliament; the statements found in the legislative history are only indications of what the promoters of a particular provision believed. Thus, statements in the parliamentary history must not be allowed to supersede or qualify the words of the Act itself. Moreover, particularly under the Mixed Member Proportional (MMP) voting system where many amendments are made to a Bill during its progress through the House, one must always be vigilant to be sure that statements made early in the process remain relevant to the Act as finally enacted. One must also be careful to distinguish statements which truly reflect the reason for a particular provision or amendment from those which are more politically motivated. Courts need to exercise strict control over relevance. Nevertheless, with these cautions, there is no doubt that parliamentary history is playing an important part in statutory interpretation in the modern era.
When interpreting Acts, a court owes a duty not just to Parliament to ensure that its intention is carried out, but also to society to ensure that the rights of the citizen are upheld. This consideration tempers the purposive approach.
The New Zealand Bill of Rights Act 1990
The New Zealand Bill of Rights Act 1990 (Bill of Rights Act) codifies a number of important human rights. They include rights such as the rights of freedom of expression and assembly, and rights of access to the courts and to natural justice.
Section 6 of the Bill of Rights Act provides as follows:
6 Interpretation consistent with Bill of Rights to be preferred
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
Thus, in cases where the words of an Act are ambiguous, or where more than one result is possible when applying the words to the facts of the case, the interpreter must when it can be done favour an interpretation which is consistent with the rights in the Bill of Rights Act. Normally it will be possible to reconcile this approach with the purposive approach, for it is normally quite realistic to say that Parliament cannot have intended a meaning which would infringe the Bill of Rights Act. But there are some occasions where the result might be different according to whether one takes a purposive approach or an approach based on section 6 of the Bill of Rights Act. In such a case, one Judge has said that section 6 is "comparable in importance to - perhaps of even greater importance" than the purposive approach. Two things should be noted.
First, a Bill of Rights Act-consistent approach should only be taken if the words of the enactment in question can bear that meaning. Our courts have said that the words of the enactment must reasonably be capable of the meaning given to them, and that unnaturally strained meanings are not acceptable. Yet in the past, when fundamental values were at stake, courts sometimes did adopt artificial meanings in an attempt to give effect to those values, and in Britain under the similar provision of the Human Rights Act 1998 (UK) there is evidence that the English courts are taking a very robust view of what amounts to a "possible" meaning.
Secondly, section 5 of the Bill of Rights Act must not be neglected in this exercise. It provides as follows:
5 Justified limitations
Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
In determining, for the purposes of section 6 of the Bill of Rights Act whether a limiting provision is consistent with a right, the requirements of section 5 should be weighed in the balance in that interpretative exercise: a reasonable and justified limitation is not inconsistent with a relevant right in the Bill of Rights Act.
Nevertheless, if a limiting provision is clear and is susceptible to no other interpretation than that it is inconsistent with a right in the Bill of Rights Act, the provision under interpretation will prevail by virtue of section 4 of the Bill of Rights Act. The Bill of Rights Act does not "trump", or override, other legislation. But there have been suggestions that in such a case a court can give an indication (or "declaration") that such inconsistency exists.
Long before the Bill of Rights Act, there had developed in the common law a set of fundamental principles which the courts strove to uphold. Many of them were human rights which emphasised the dignity of the individual and protected his or her property. Many but not all of these rights have been codified in the Bill of Rights Act. Those that have not been codified include the principle that property is not to be taken without compensation, and the right to freedom from slavery. Others of these ancient values are not so much human rights as fundamental principles of decent conduct. They include the rule that a person should not profit from his or her own wrong, and also the principle of equality before the law. Sometimes these principles are referred to as "principles of legality". They almost served as an unwritten constitution. They always have had, and still do have, an influence on statutory interpretation. The courts require clear words in legislation to override or limit them. It is the same style of interpretation as section 6 of the Bill of Rights Act requires. Thus, it has been held that the power in the Police Act 1958 to require particulars from an arrested person is confined to those bare particulars which relate to the person's identity; it has been held that the powers of interception of information conferred by the New Zealand Security Intelligence Service Act 1969 do not include the power to break into a dwelling house; and regulation-making powers in an Act have been held to be subject to the implicit proviso that regulations cannot be made which infringe the principles of natural justice. There is a sense in which legislation and fundamental common law principles coalesce.
The presumption against retrospectivity
There is a presumption that Acts are not to be read as being retrospective. Section 7 of the Interpretation Act 1999 lays down an apparently blanket rule:
7 An enactment does not have retrospective effect.
However, given that all the provisions of the Interpretation Act 1999 apply only so far as they are consistent with the words and context of the particular legislation under scrutiny, it is clear that section 7 does no more than codify the long-standing presumption against retrospectivity which existed at common law. But that presumption has different strengths in different contexts. It is strongest in relation to legislation that imposes obligations or penalties, or takes away acquired rights. In the case of beneficial social legislation, a court may be much more inclined to find that the legislation operates retrospectively as well as prospectively. Among the matters taken into account will be the words of the legislation in question, its purpose, its context, and the injustice or otherwise of finding retrospectivity. The much-quoted maxim that procedural Acts are more likely to be interpreted retrospectively than substantive ones is at best only a guideline; the effect of statutes upon previously acquired rights is more important than any label which may be attached to them.
The consequences of an interpretation
The courts are naturally unwilling to arrive at an interpretation which has unreasonable or inconvenient results. As Danckwerts LJ said: "An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available". Sometimes the consequences of a preferred interpretation are expressly noted in judgments:
- Sometimes the fact that an interpretation is "sensible" is referred to as one of the reasons for arriving at it.
- Sometimes a court will wish to know the economic or social implications of a certain interpretation to assess its likely effect.
- When old Acts are being interpreted, their workability in a modern world is a relevant consideration.
- Cases determining whether a statute is retrospective in its operation occasionally make express reference to any unfairness or injustice that such a finding would entail.
- Practical convenience and smoothness of transition are relevant factors in the interpretation of transitional provisions.
Approaches to statutory interpretation change over time. In New Zealand, as in other jurisdictions, there has been a clear move over the last 30 years or so from a literal to a purposive approach. No doubt there will be new emphases in future. It is worth discussing at least two matters which may possibly influence the approach to interpretation in New Zealand in the years to come.
The Human Rights Act 1998 (UK) section 3 requires English courts "so far as it is possible to do so" to interpret United Kingdom legislation consistently with the European Convention on Human Rights. This requirement has had far-reaching results. First, when the Human Rights Bill was undergoing the parliamentary process, Lord Cooke said that section 3 went further than existing rules of interpretation "because it enjoins a search for possible meanings as distinct from the true meaning - which has been the traditional approach in the matter of statutory interpretation in the courts".
This suggests that what the court must seek is not so much the intention of the Parliament which passed the legislation in question, but the interpretation which best harmonises that legislation with the convention. Dicta in the English courts support this. There are some indications that the New Zealand courts may be prepared to take a similar approach under the Bill of Rights Act, but it has not been as strongly or consistently articulated.
Secondly, the New Zealand courts have taken the line in applying section 6 of the Bill of Rights Act that it can only give words a rights-consistent interpretation if that meaning is reasonably available: a strained interpretation is not acceptable. The English courts have been more robust: a possible meaning is enough. This has led to interesting contrasts between New Zealand and English decisions. It has also led to debate in the United Kingdom as to what are the limits of "possible" meaning.
Whether the more overt rights-based English approach will filter through to New Zealand remains to be seen. There are signs that at least some of our Judges are prepared to take a very strong line in the protection of human rights. But it is believed that it is unlikely that our courts will go as far as their English counterparts. The Human Rights Act 1998 (UK) contains no equivalent to section 4 of the New Zealand Bill of Rights Act and, as Lord Cooke has intimated, section 6 of the New Zealand Act is not identical to section 3 of its United Kingdom equivalent. These factors, together with the increasing influence in the United Kingdom of the more liberal European styles of interpretation, are likely to mean that New Zealand courts will not feel able to go to the same lengths.
Plain English drafting
There is a strong movement in New Zealand towards plain English drafting of legislation, by virtue of which provisions are expressed as economically as possible and in modern language. One of the objectives is to make legislation more accessible to ordinary people, although it is acknowledged that this aspiration will not always be able to be achieved: much law will always be for experts.
It may be that Acts in plain English will come before the courts less often, in that being clearer than their predecessors they will require less interpretation. However, that is probably being too optimistic. The English language is inherently imprecise, and very few words do not have shades of meaning. This, coupled with the fact that Acts have to be applied to situations unforeseen by the drafter, means that there will continue to be work for the courts. This will particularly be so where the drafter has used open-textured statements of principle.
It is, as yet, too early to say whether these developments in drafting style will have any influence on the way courts and others interpret such Acts. In theory they could. In the past, drafters have tended to draft for lawyers and Judges, secure in the knowledge that certain rules and conventions would be used to interpret the resultant Acts. With plain language drafting, however, the potential audience could be much wider, and one may need seriously to ask how an ordinary reader (not a Judge or lawyer) would understand the provision.
There could in theory be several implications. One could be that extrinsic materials will have less of a part to play: the non-lawyer has little knowledge of the antecedents of revised Acts, or of legislative history. Another might be that internal aids to interpretation - outline parts, graphics, examples, headings, etc - could take on a greater importance than they have traditionally had: they all contribute to conveying the message to the reader. Another might be that more consideration should be given to how an ordinary reader would understand an old Act in the world of today.
The point has also been made that as old statutes drafted in the traditional "legalistic" style are replaced by modern plain English versions it may become increasingly clear that the message or underlying principle of the law is not the same thing as the words in which it is couched. Once it becomes obvious that the same thing can be said in different ways, we may be induced to move progressively away from the old literal approach to interpretation, and closer to the freer style, not so word-dependent, which has always been used in European countries.
However this is speculative only. The plain English statutes have so far made few appearances in the courts, and one cannot yet make confident pronouncements.
If there is dispute over the meaning or application of an Act the matter may go to court, and it is the court which will authoritatively determine the true interpretation of the statute. Those preparing legislation should therefore be mindful of the rules and conventions which the courts apply in the process of interpretation.
- The Act will be read as a whole. It is thus important that it have internal coherence.
- Any indications provided in the Act (eg, notes and headings) may be used for interpretation.
- Courts are required to interpret an Act in the light of its purpose. Statements of purpose in the Act should thus be carefully considered and expressed.
- Courts can go no further than to interpret the words of the Act: they normally will not supplement or gloss those words. It is thus important that all matters necessary for the effective operation of the Act be spelled out in the Act.
- The courts will take a variety of matters external to the Act into account when interpreting it. It is thus essential that those responsible for the preparation of the legislation bear these matters in mind, and ensure that the Act's relation with them is very clear. These external matters include:
- the common law;
- other statutes;
- documents created during the legislation's inception, eg: explanatory notes, select committee commentaries, etc.
- Courts attempt to interpret Acts consistently with fundamental values of the legal system, many but not all of which are contained in the Bill of Rights Act. Those preparing legislation should attempt to ensure that it is consistent with these values.
Part 2: Has the Interpretation Act 1999 been considered?
The Interpretation Act 1999 (the Act) has been in force since 1 November 1999. It replaces the Acts Interpretation Act 1924 and is largely based on the recommendations made by the Law Commission in its 1990 report A New Interpretation Act: To Avoid Prolixity and Tautology (NZLC R17).
This Part complements the comments made in Part 1. It sets out the provisions of the Act and provides a brief commentary on those provisions.
In general, new legislation should be consistent with the Act, and matters that are already provided for in that Act should not be restated in new legislation.
Interpretation Act 1999
Public Act 1999 No 85
An Act relating to the interpretation, application, and effect of legislation
BE IT ENACTED by the Parliament of New Zealand as follows:
1 Short Title
This Act may be cited as the Interpretation Act 1999.
Purposes, commencement, and application
2 Purposes of this Act
The purposes of this Act are-
(a) to state principles and rules for the interpretation of legislation; and
(b) to shorten legislation; and
(c) to promote consistency in the language and form of legislation.
The Act serves these purposes in several ways. First, it contains basic principles relating to the interpretation of legislation. Secondly, it sets out detailed rules about matters that commonly arise in legislation (including the date of commencement of legislation, the exercise of powers between the passing and commencement of legislation, the exercise of powers in legislation generally, the effect of repeals, and the computation of time and distance). Thirdly, it sets out standard definitions of terms frequently found in legislation.
The general provisions and detailed rules contained in the Act mean that those provisions do not have to be repeated in every piece of legislation. Those provisions apply across the statute book. They can be used repeatedly and with certainty as to their effect. The result is that legislation can be framed in more economical terms and the length of legislation is reduced.
This is not to say that the Act is only concerned with the technical aspects of legislation. The general principles of interpretation set out in the Act (especially the principle contained in section 5(1) that the meaning of an enactment must be ascertained from its text and in the light of its purpose) confirms Parliament's central position in New Zealand's constitutional arrangements and the importance of giving effect to the law enacted by Parliament. The Act may also assist in making legislation more accessible to the public, which may in turn enhance public participation in the democratic process. Thus, while at first glance the Act may appear to be technical in nature, it has a far more important constitutional role.
This Act comes into force on 1 November 1999.
(1) This Act applies to an enactment that is part of the law of New Zealand and that is passed either before or after the commencement of this Act unless-
(a) the enactment provides otherwise; or
(b) the context of the enactment requires a different interpretation.
(2) The provisions of this Act also apply to the interpretation of this Act.
The provisions of the Act are essentially "default provisions"; they apply to an enactment unless there are legislative signals to the contrary. Accordingly, it is possible to depart from the provisions of the Act if a different result is desired. This can be done expressly or by implication. For example, if the term "month" is intended to have a different meaning from the standard definition in section 29 of the Act, it will need to be defined differently. An express provision is needed to override the standard definition of that term in section 29, although it is not necessary to specifically refer to that section by, for example, providing "Despite section 29 of the Interpretation Act 1999, month means the period commencing on the first business day in any calendar month and ending on the last business day of that month". A definition of the term that is different from the section 29 definition will be enough. Likewise, if an enactment is to be given retrospective effect, the enactment will have to override the general principle in section 7 of the Act. That section provides that enactments do not have retrospective effect. This can be achieved by providing that the enactment is to be treated as having come into force on a date before its enactment.
Principles of interpretation
5 Ascertaining meaning of legislation
(1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.
(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.
Section 5(1) represents a legislative direction to those interpreting legislation to give effect to the purpose of the legislation. It gives legislative effect to the purposive approach to interpretation that was inherent in section 5(j) of the Acts Interpretation Act 1924, which has long been adopted by the courts in interpreting legislation but is framed in shorter and more modern language.
The term "indications", which is used in section 5(2) and (3), is not defined in the Act but examples of it are given in section 5(3). Those examples are non-exhaustive and include "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".
6 Enactments apply to circumstances as they arise
An enactment applies to circumstances as they arise.
Section 6 reflects the "dynamic" or "ambulatory" approach to interpretation that was contained in section 5(d) of the Acts Interpretation Act 1924. Under this approach, the enactment is considered as always speaking and, regardless of the passage of time, an old enactment may be applied to new circumstances.
This is in contrast to the "historical" or "static" approach to interpretation, which required legislation to be interpreted in accordance with its meaning at the time of enactment. For example, the word "document" in a 1963 statute might not, under the historical approach, necessarily include a videotape.
7 Enactments do not have retrospective effect
An enactment does not have retrospective effect.
Section 7 codifies the well established common law presumption against the retrospective operation of legislation. As noted earlier, this section does not prevent Parliament from enacting retrospective statutes. Nor does it prevent the Executive from making regulations that have retrospective effect, so long as the empowering statute allows this to be done.
Specific provisions applying to legislation
Commencement of legislation
8 Date of commencement of Acts
(1) An Act or an enactment in an Act comes into force on the date stated or provided in the Act for the commencement of the Act or for the commencement of the enactment.
(2) If an Act does not state or provide for a commencement date, the Act comes into force on the day after the date of assent.
9 Date of commencement of regulations
(1) Regulations or enactments in regulations come into force on the date stated or provided in the regulations for the commencement of the regulations or for the commencement of the enactments.
(2) If regulations do not state or provide for the date on which the regulations or enactments in the regulations come into force, the regulations come into force on the day after the date of their notification in the Gazette.
Before the commencement of the Act, Acts that were silent as to the date of their commencement came into force on the day on which they received assent. In other words, they came into force at the beginning of the day of assent. This allowed for a slight degree of retrospectivity and would have conflicted with the principle against retrospectivity under section 7 of the Act. Thus, the Act now provides that an Act comes into force on the day after the date of assent. It is, of course, open to Parliament to provide for a different commencement date. For example, it is quite common for different provisions of the same Act to come into force on different dates. Sometimes an Act may also provide for its commencement on a date to be appointed by the Governor-General by Order in Council.
Under the Standing Orders, however, Bills are required to have a distinct clause stating when the Bill comes into force (SO 252 refers). This means that Acts will almost always specify a commencement date or make specific provision for their commencement. If an Act is silent as to when it comes into force, the default position under section 8 of the Act is that the Act comes into force on the day after the date of assent. If an Act is required to come into force on the commencement of the date of assent or on the expiry of the previous day, it will be necessary to provide for this in the same manner as for any other retrospective legislation.
Similarly, regulations invariably contain commencement provisions. Under section 9 of the Act, the default position for regulations is that they will come into force on the day after the date of their notification in the Gazette.
10 Time of commencement of legislation
(1) An enactment comes into force at the beginning of the day on which the enactment comes into force.
(2) If an enactment is expressed to take effect from a particular day, the enactment takes effect at the beginning of the next day.
(3) An Order in Council may appoint a day for an enactment to come into force that is the same day as the day on which the Order in Council is made, in which case the enactment comes into force at the beginning of that day.
Section 10(1) relates to the time, rather than the date, of commencement. It states that an enactment comes into force at the beginning of the day on which the enactment comes into force.
Exercise of powers between passing and commencement of legislation
11 Exercise of powers between passing and commencement of legislation
(1) A power conferred by an enactment may be exercised before the enactment comes into force or takes effect to-
(a) make a regulation or rule or other instrument; or
(b) serve a notice or document; or
(c) appoint a person to an office or position; or
(d) establish a body of persons; or
(e) do any other act or thing for the purposes of an enactment.
(2) The power may be exercised only if the exercise of the power is necessary or desirable to bring, or in connection with bringing, an enactment into operation.
(3) The power may not be exercised if anything that results from exercising the power comes into force or takes effect before the enactment itself comes into force unless the exercise of the power is necessary or desirable to bring, or in connection with bringing, the enactment into operation.
(4) Subsection (1) applies as if the enactment under which the power is exercised and any other enactment that is not in force when the power is exercised were in force when the power is exercised.
Section 11 of the Act deals with the anticipatory exercise of powers in legislation. It allows powers under an enactment to be exercised before the enactment comes into force if the exercise of those powers is necessary or desirable to bring the enactment into operation. A common example of the use of this provision is the making of regulations or rules that are required to ensure that the Act is ready to operate as soon as it comes into force.
However, note the qualification in section 11(3) of the Act, which provides that a power may not be exercised if anything that results from exercising the power comes into force or takes effect before the enactment comes into force unless the exercise of the power is itself necessary or desirable to bring the enactment into operation.
Section 11 of the Act essentially re-enacts section 12 of the Acts Interpretation Act 1924, but there is a change. The 1999 Act uses the word "enactment" instead of "Act".
The application of section 11 of the Act has been considered by the Court of Appeal in New Zealand Employers Federation Incorporated v National Union of Public Employees  2 NZLR 54. The central issue in that case was whether the registration of a union by the Registrar of Unions under Part 4 of the Employment Relations Act 2000 before the commencement of that Act involved the exercise of a power "necessary or desirable to bring, or in connection with bringing" the enactment into operation within the exception provided by section 11.
The majority of the Court held that section 11 did not authorise the registration of unions before the commencement of the Employment Relations Act 2000. The Court considered that employee associations were not part of the governmental administrative institutions necessary or desirable for bringing that Act into force. Tipping J said (para 99):
The concept of bringing an enactment into operation involves a distinction between getting an enactment ready to operate, and actually operating its substantive provisions. The distinction is between putting in place the infrastructure necessary or desirable to make the enactment work on the one hand, and, on the other, the actual operation of its substantive provisions. In my view the power in issue in this case falls into the latter non-qualifying category...
Exercise of powers in legislation generally
12 Power to appoint to an office
The power to appoint a person to an office includes the power to-
(a) remove or suspend a person from the office:
(b) reappoint or reinstate a person to the office:
(c) appoint another person in place of a person who-
(i) has vacated the office; or
(ii) has died; or
(iii) is absent; or
(iv) is incapacitated in a way that affects the performance of that person's duty.
Although the powers contained in section 12 will often be found in statutes that specifically provide for the appointment of a person, this section has been retained to avoid uncertainty. It essentially re-enacts section 25(f) of the Acts Interpretation Act 1924, but goes a little further than section 25(f) by including the power to make an appointment if the appointee has vacated office.
13 Power to correct errors
The power to make an appointment or do any other act or thing may be exercised to correct an error or omission in a previous exercise of the power even though the power is not generally capable of being exercised more than once.
Section 13 allows a power to be exercised to correct an error or omission in a previous exercise of the power, even though the power is not generally capable of being exercised more than once. The purpose of section 13 is to allow minor technical corrections to be made in order to prevent the exercise of a power from being technically invalid. Section 13 does not appear to be intended to allow the re-exercise of a power on the basis that the people exercising the power had changed their minds, but is directed more at allowing corrections that are clerical or technical in nature to be made.
Section 13 was considered by the High Court in Neil Construction Ltd v North Shore City Council  3 NZLR 533. The issue in that case was whether unsold subdivided land that had been valued in a single assessment rating by the respective local councils could be revalued as individual lots. The High Court held that the original rating could not be regarded as an error that fell within section 13. The High Court also held that, in any event, section 13 could not be applied because section 4(1) of the Act expressly provides that the Act only applies unless the context otherwise requires. In the Neil case, the High Court held that the express and detailed provisions of the Rating Valuations Act 1998 and the Rating Valuations Rules 2000 prevented the more general provisions of section 13 applying in that case.
14 Exercise of powers by deputies
A power conferred on the holder of an office, other than a Minister of the Crown, may be exercised by the holder's deputy lawfully acting in the office.
15 Power to amend or revoke
The power to make or issue a regulation, Order in Council, Proclamation, notice, rule, bylaw, Warrant, or other instrument includes the power to-
(a) amend or revoke it:
(b) revoke it and replace it with another.
16 Exercise of powers and duties more than once
(1) A power conferred by an enactment may be exercised from time to time.
(2) A duty or function imposed by an enactment may be performed from time to time.
Sections 14 to 16 avoid the need for individual Acts to provide expressly for the matters set out in those sections.
17 Effect of repeal generally
(1) The repeal of an enactment does not affect-
(a) the validity, invalidity, effect, or consequences of anything done or suffered:
(b) an existing right, interest, title, immunity, or duty:
(c) an existing status or capacity:
(d) an amendment made by the enactment to another enactment:
(e) the previous operation of the enactment or anything done or suffered under it.
(2) The repeal of an enactment does not revive-
(a) an enactment that has been repealed or a rule of law that has been abolished:
(b) any other thing that is not in force or existing at the time the repeal takes effect.
It is usual for a new Act to repeal an existing Act that it replaces, or a new Act may simply repeal an existing Act without replacing it. Section 17 of the Act sets out the effect of repeals generally. It explains what effect the repeal has on existing situations and things that have been done under the repealed Act.
One particular effect of section 17 is that the repeal of an Act will not automatically repeal any amendment made by that Act to some other Act (see section 17(1)(d)). This avoids the need for savings provisions, but amendments made by an Act to other Acts that are not intended to survive a repeal will have to be considered separately and specific provision will have to be made for them.
18 Effect of repeal on enforcement of existing rights
(1) The repeal of an enactment does not affect the completion of a matter or thing or the bringing or completion of proceedings that relate to an existing right, interest, title, immunity, or duty.
(2) A repealed enactment continues to have effect as if it had not been repealed for the purpose of completing the matter or thing or bringing or completing the proceedings that relate to the existing right, interest, title, immunity, or duty.
Section 18 does not avoid the need for detailed transitional provisions to be included in legislation whenever existing law is changed or replaced and things that had been commenced under an old regime are intended to be completed under that regime, rather than the new regime. Section 18 is merely a backstop provision.
The application of section 18 was considered by both the High Court and the Court of Appeal in Foodstuffs (Auckland) Ltd v Commerce Commission  1 NZLR 353. In that case, Progressive Enterprises Ltd (Progressive) had applied to the Commerce Commission for clearance to acquire Woolworths New Zealand before the commencement of the Commerce Amendment Act 2001. As the 2001 Act set out a stricter test for competition, the issue was whether the Commerce Commission should, in determining the application, apply the test in force at the time the application was made or the new test enacted by the 2001 Act. The High Court had held that as Progressive's application had been made before the new test came into force, it should be determined under the test in force at the time of the application. The Court of Appeal reversed that decision and held that the Commerce Commission should have applied the new test. In reaching its decision, the Court of Appeal held that section 18 should not be read disjunctively. The reference to "completion of a matter or thing" in section 18 must be read to relate to an existing right, interest, title, immunity, or duty. In the context of that case, the Court of Appeal held that the interest Progressive had in the determination of its application under the Commerce Act 1986 was not a right or interest for the purposes of section 18.
In the Court of Appeal (and also in the High Court), the judgment turned on whether section 18 applied and, in particular, whether the clearance application was a proceeding relating to an existing right or interest to which the old law would apply. When the case reached the Privy Council, however, the judgment focused on the meaning of the term "proceedings" in section 26(b) of the Commerce Amendment Act 2001 (see Progressive Enterprises Ltd v Foodstuffs (Auckland) Ltd (2002) 7 NZBLC 103). That section provides that nothing in the 2001 Act "affects any proceedings commenced before the commencement of this Act". The Privy Council held that, in this context, "proceedings" is not limited to court proceedings and includes the clearance process as a single statutory proceeding involving the Commerce Commission and potentially, on appeal, the High Court or Court of Appeal.
Given that the Privy Council judgment did not address the same grounds covered in the Court of Appeal's decision, the status of the Court of Appeal's interpretation of section 18 is unclear.
19 Effect of repeal on prior offences and breaches of enactments
(1) The repeal of an enactment does not affect a liability to a penalty for an offence or for a breach of an enactment committed before the repeal.
(2) A repealed enactment continues to have effect as if it had not been repealed for the purpose of-
(a) investigating the offence or breach:
(b) commencing or completing proceedings for the offence or breach:
(c) imposing a penalty for the offence or breach.
Section 19 confirms that the repeal of an enactment does not prevent prosecutions from being brought under the repealed provision as long as the offence or breach was committed before the repeal. It should be noted that section 19 is slightly broader in effect than the corresponding provision (section 20(h)) of the Acts Interpretation Act 1924 as it expressly refers to the "investigation" of the offence or breach of an enactment. This change was made in light of the decision in Comptroller of Customs v ML Hannigan 25/9/97, Salmon J, HC, Auckland M 697/97, where the High Court held that section 20(h) did not apply to the investigative process.
20 Enactments made under repealed legislation to have continuing effect
(1) An enactment made under a repealed enactment, and that is in force immediately before that repeal, continues in force as if it had been made under any other enactment-
(a) that, with or without modification, replaces, or that corresponds to, the enactment repealed; and
(b) under which it could be made.
(2) An enactment that continues in force may be amended or revoked as if it had been made under the enactment that replaces, or that corresponds to, the repealed enactment.
21 Powers exercised under repealed legislation to have continuing effect
Anything done in the exercise of a power under a repealed enactment, and that is in effect immediately before that repeal, continues to have effect as if it had been exercised under any other enactment-
(a) that, with or without modification, replaces, or that corresponds to, the enactment repealed; and
(b) under which the power could be exercised.
Sections 20 and 21 of the Act provide for the continuation of subordinate legislation (for example, regulations, notices, orders, and rules) made, or acts done, under a repealed enactment. The subordinate legislation, or the act done, continues as if it had been made under a later enactment that corresponds to the repealed enactment.
The notion that the later enactment must correspond to the repealed enactment is carried over from sections 20(d) and 20A of the Acts Interpretation Act 1924. The term "corresponds" has been retained, despite the recommendation of the Law Commission that it be replaced with the term "substitution", because the meaning of "corresponds" is well settled under the common law. In Re Eskay Metalware Limited (in liquidation)  2 NZLR 46, the Court of Appeal held that the new provision must be of the same character as its predecessor and must have the same kind of function. The new provision does not need to be identical in scope but it must deal with a subject-matter that is essentially the same as that of its predecessor. If the new provision is directed to the same end, there need not be precise correspondence in the manner of dealing with the subject-matter.
22 References to repealed enactment
(1) The repeal of an enactment does not affect an enactment in which the repealed enactment is applied, incorporated, or referred to.
(2) A reference in an enactment to a repealed enactment is a reference to an enactment that, with or without modification, replaces, or that corresponds to, the enactment repealed.
(3) Subsection (1) is subject to subsection (2).
Section 22(2) re-enacts section 21 of the Acts Interpretation Act 1924, but uses the word "enactment" rather than the word "Act". The effect of this change is to resolve conflicting case law as to whether section 21 applied only where the entire Act was repealed, rather than just a section of an Act (see Ministry of Transport v Hamilton (HC, Wanganui, M 73/84, 4 April 1985), in which Eichelbaum J held that section 21 operated only where a whole Act was repealed. See also R v Barker (1987) 3 CRNZ 83, in which it was held that the reference to an Act in section 21 included a section of an Act).
23 Amending enactment part of enactment amended
An amending enactment is part of the enactment that it amends.
Section 23 of the Act provides that an amending enactment is part of the enactment that it amends. The effect of this section is two-fold. First, it is not necessary to state that an amending Act is part of another Act or that amending regulations are part of other regulations. Secondly, it is no longer necessary, when repealing a principal Act, to separately repeal Acts that have amended the principal Act or, when revoking principal regulations, to separately revoke the amending regulations.
Authority to make certain enactments
24 Authority to make certain enactments
(1) It is not necessary for an enactment, Proclamation, Order in Council, warrant, or other instrument made under an enactment to refer to facts, circumstances, or preconditions that must exist or be satisfied before the enactment, Proclamation, Order in Council, Warrant, or other instrument can be made.
(2) An enactment, Proclamation, Order in Council, Warrant, or other instrument is not invalid just because the enactment under which it is expressed to have been made does not authorise its making as long as its making is authorised by another enactment.
Section 24(1) restates section 24 of the Acts Interpretation Act 1924, but does so in more modern language. It provides that it is not necessary for subordinate legislation to state, on its face, any facts, circumstances, or preconditions that must exist or be satisfied before the subordinate legislation can be made.
Section 24(2) is new. It provides that subordinate legislation remains valid even though the subordinate legislation incorrectly refers to an enactment that does not authorise its making, so long as another enactment authorises the making of the subordinate legislation.
25 Amendment and revocation of regulations made by Act
Regulations amended or substituted by an Act may be amended, replaced, or revoked by subsequent regulations as if they had been made by regulation.
Section 25 avoids the need, in cases where regulations are amended by statute, to provide expressly that the amendment is to be treated as having been made by regulation in order to ensure that the regulations can later be amended.
26 Use of prescribed forms
A form is not invalid just because it contains minor differences from a prescribed form as long as the form still has the same effect and is not misleading.
Section 26 permits minor differences from a prescribed form as long as the form still has the same effect and the differences are not misleading. In Motor Vehicle Dealers Institute Inc v Auckland Motor Vehicle Disputes Tribunal (2000) 6 NZBLC 103,159 (CA), the Court of Appeal decided not to disturb the finding of both the Motor Vehicle Disputes Tribunal and the High Court that a window notice on a second-hand non-commercial motor vehicle did not comply with the requirement under the Motor Vehicle Dealers Act 1975 for the window notice to contain the words "Warning. Odometer reading may be incorrect". The Court of Appeal noted that while it would not encourage departure from the strict wording of the 1975 Act, the words used in the window notice at issue - "We make no representation as to the accuracy of the odometer reading." B did provide the required particulars and the form might have been saved by section 26. However, as the application of section 26 did not form part of the appeal, the view expressed by the Court of Appeal in respect of that section did not form part of the reasons for the judgment in that case.
Application of legislation to the Crown
27 Enactments not binding on the Crown
No enactment binds the Crown unless the enactment expressly provides that the Crown is bound by the enactment.
28 Review of this Part
(1) The Ministry of Justice must, by 30 June 2001, report to the Minister of Justice-
(a) whether it is desirable that the law be changed so that all enactments bind the Crown unless provided otherwise; and
(b) whether changes in the law may be required to impose criminal liability on the Crown for the breach of any enactment.
(2) In preparing the report, the Ministry must consider any reports prepared by the Law Commission or any other body relating to the liability of the Crown.
(3) As soon as practicable after receiving a report from the Ministry, the Minister must present a copy of it to the House of Representatives.
Section 27 of the Act retains the presumption previously contained in section 5(k) of the Acts Interpretation Act 1924 that an Act is not binding on the Crown unless the Act expressly so provides. The Law Commission had initially recommended that this presumption should be reversed so that all enactments bind the Crown unless provided otherwise. The Act requires that this matter be reviewed by the Ministry of Justice and a report provided to the Minister of Justice. That review has now been completed. The recommendation that has been made is that the presumption in section 27 should be retained, but the Cabinet Manual should be amended to require that the question of whether the Crown ought to be bound be considered with each proposal for a new Bill. The Cabinet Office Step by Step Guide has been amended in line with that recommendation. The practical effect of this is that the question of whether a draft Bill should bind the Crown will have to be considered at the policy development stage of the legislation.
Meaning of terms and expressions in legislation
In an enactment,-
Act means an Act of the Parliament of New Zealand or of the General Assembly; and includes an Imperial Act that is part of the law of New Zealand:
commencement, in relation to an enactment, means the time when the enactment comes into force:
committed for trial means committed to the High Court or a District Court under the Summary Proceedings Act 1957:
Commonwealth country and part of the Commonwealth mean a country that is a member of the Commonwealth; and include a territory for the international relations of which the member is responsible:
consular officer means a person who has authority to exercise consular functions:
enactment means the whole or a portion of an Act or regulations:
Gazette means the New Zealand Gazette published or purporting to be published under the authority of the New Zealand Government; and includes a supplement:
Governor-General in Council or a similar expression means the Governor-General acting on the advice and with the consent of the Executive Council:
Minister, in relation to an enactment, means the Minister of the Crown who, under the authority of a warrant or with the authority of the Prime Minister, is responsible for the administration of an enactment:
month means a calendar month:
New Zealand or similar words referring to New Zealand, when used as a territorial description, mean the islands and territories within the Realm of New Zealand; but do not include the self-governing state of the Cook Islands, the self-governing State of Niue, Tokelau, or the Ross Dependency:
North Island means the island commonly known as the "North Island"; and includes the islands adjacent to it north of Cook Strait:
Order in Council means an order made by the Governor-General in Council:
person includes a corporation sole, a body corporate, and an unincorporated body:
prescribed means prescribed by or under an enactment:
proclamation means a proclamation made and signed by the Governor-General under the Seal of New Zealand and published in the Gazette:
public notification, public notice, or a similar expression in relation to an act, matter, or thing, means a notice published in-
(a) the Gazette; or
(b) one or more newspapers circulating in the place or district to which the act, matter, or thing relates or in which it arises:
(a) regulations, rules, or bylaws made under an Act by the Governor-General in Council or by a Minister of the Crown:
(b) an Order in Council, Proclamation, notice, Warrant, or instrument, made under an enactment that varies or extends the scope or provisions of an enactment:
(c) an Order in Council that brings into force, repeals, or suspends an enactment:
(d) regulations, rules, or an instrument made under an Imperial Act or the Royal prerogative and having the force of law in New Zealand:
(e) an instrument that is a regulation or that is required to be treated as a regulation for the purposes of the Regulations Act 1936 or the Acts and Regulations Publication Act 1989 or the Regulations (Disallowance) Act 1989:
(f) an instrument that revokes regulations, rules, bylaws, an Order in Council, a Proclamation, a notice, a Warrant, or an instrument, referred to in paragraphs (a) to (e):
repeal, in relation to an enactment, includes expiry, revocation, and replacement:
Rules of Court, in relation to a court, means rules regulating the practice and procedure of the court:
South Island means the island commonly known as the "South Island"; and includes the islands adjacent to it south of Cook Strait:
summary conviction means a conviction by a District Court Judge or by 1 or more Justices of the Peace in accordance with the Summary Proceedings Act 1957:
territorial limits of New Zealand, limits of New Zealand, or a similar expression, when used as a territorial description, means the outer limits of the territorial sea of New Zealand:
working day means a day of the week other than-
(a) a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign's Birthday, and Labour Day; and
(b) a day in the period commencing with 25 December in a year and ending with 2 January in the following year; and
(c) if 1 January falls on a Friday, the following Monday; and
(d) if 1 January falls on a Saturday or a Sunday, the following Monday and Tuesday:
writing includes representing or reproducing words, figures, or symbols-
(a) in a visible and tangible form by any means and in any medium:
(b) in a visible form in any medium by electronic means that enables them to be stored in permanent form and be retrieved and read.
Section 29 of the Act sets out standard definitions of terms and expressions commonly used in legislation. This means that those terms and expressions do not have to be defined every time in a new Act. Some key terms defined in this section are "Act", "enactment", and "regulations".
"Act" is defined to mean an Act of the Parliament of New Zealand or of the General Assembly and includes an Imperial Act that is part of the law of New Zealand. That definition is different from the definition of "Act" in section 4 of the Acts Interpretation Act 1924. Under the previous definition, this term was defined to include all rules and regulations made under an Act. This is no longer the case under the new definition. This means that a reference to "Act" in legislation enacted from 1 November 1999 will no longer automatically include rules and regulations. In the case of Acts passed before 1 November 1999, however, the previous position is preserved. The term "Act", when used in Acts passed before that date, includes rules and regulations (see section 30 of the Interpretation Act 1999).
"Enactment" means the whole or a portion of an Act or regulations. This term is used extensively in the Act, except in sections 8 and 9, where the terms "Acts" and "regulations" are used deliberately to connote different rules relating to commencement.
"Regulations" is given an extended meaning to include most types of delegated legislation included in the Statutory Regulations Series.
Other commonly used terms defined in section 29 of the Act include "commencement", "Governor-General", "Minister", "month", "person", "public notification", "working day", and "writing".
30 Definitions in enactments passed or made before commencement of this Act
In an enactment passed or made before the commencement of this Act, -
Act includes rules and regulations made under the Act:
constable includes a police officer of any rank:
Governor means the Governor-General:
land includes messuages, tenements, hereditaments, houses, and buildings, unless there are words to exclude houses and buildings, or to restrict the meaning to tenements of some particular tenure:
person includes a corporation sole, and also a body of persons, whether corporate or unincorporate.
Section 30 of the Act retains certain definitions contained in the Acts Interpretation Act 1924. These definitions apply only to Acts passed or regulations made before 1 November 1999.
31 Use of masculine gender in enactments passed or made before commencement of this Act
In an enactment passed or made before the commencement of this Act, words denoting the masculine gender include females.
Section 31 of the Act provides that, in the case of enactments passed or made before 1 November 1999, words denoting the masculine gender include females. As for enactments passed after that date, there are no rules in the Act regarding the meaning of gender-specific terms. This is because those rules are not needed. New Zealand legislation is drafted in gender-neutral language. If it is necessary, a gender-specific term may be used (for example, to describe certain criminal offences that may be committed only against females). This means that, for enactments passed or made after 1 November 1999, gender-specific terms will have their ordinary meaning.
32 Parts of speech and grammatical forms
Parts of speech and grammatical forms of a word that is defined in an enactment have corresponding meanings in the same enactment.
Section 32 of the Act provides that parts of speech and grammatical forms of a word that is defined in an enactment have corresponding meanings in the same enactment. It is no longer necessary to state in a definition of a word that a different part of speech or grammatical form of that word has a corresponding meaning. For example, it is not necessary to add to a definition of "sell" a statement that "sale" has a corresponding meaning.
By contrast, section 2 of the Adult Adoption Information Act 1985 defines the term "adult", where it is used as a noun, to mean a person who has attained the age of 20 years. That definition continues on to state that the same term, where it is used as an adjective, has a corresponding meaning. If this Act were to be drafted today, this last aspect of the definition would no longer be necessary, because of section 32 of the Interpretation Act 1999.
Words in the singular include the plural and words in the plural include the singular.
34 Meaning of words and expressions used in regulations and other instruments
A word or expression used in a regulation, Order in Council, Proclamation, notice, rule, bylaw, Warrant, or other instrument made under an enactment has the same meaning as it has in the enactment under which it is made.
Section 34 re-enacts, with minor modification, section 7 of the Acts Interpretation Act 1924. The effect of section 34 is that, if a term is defined in an empowering Act and is used, but not defined, in subordinate legislation made under that Act, the term is given the same meaning as in the empowering Act.
(1) A period of time described as beginning at, on, or with a specified day, act, or event includes that day or the day of the act or event.
(2) A period of time described as beginning from or after a specified day, act, or event does not include that day or the day of the act or event.
(3) A period of time described as ending by, on, at, or with, or as continuing to or until, a specified day, act, or event includes that day or the day of the act or event.
(4) A period of time described as ending before a specified day, act, or event does not include that day or the day of the act or event.
(5) A reference to a number of days between 2 events does not include the days on which the events happened.
(6) A thing that, under an enactment, must or may be done on a particular day or within a limited period of time may, if that day or the last day of that period is not a working day, be done on the next working day.
A reference to a distance means a distance measured in a straight line on a horizontal plane.
Amendments and repeals
37 Amendments to other Acts
The enactments specified in Schedule 1 are amended in the manner indicated in that schedule.
38 Repeals and saving
(1) The enactments specified in Schedule 2 are repealed.
(2) Section 26 of the Acts Interpretation Act 1908 as set out in Schedule 2 of the Acts Interpretation Act 1924 continues in force despite the repeal of both of those Acts.
The Interpretation Act 1999 should be considered when new legislation is being prepared. Those preparing legislation should study the Act and become familiar with its provisions. Particular emphasis should be given to the general principles of interpretation and the standard definitions of commonly used legislative terms set out in the Act, which are often overlooked. Although it is possible to depart from the provisions of the Act, this should only be done if there are good reasons for doing so.
In general, -
- new legislation should be consistent with the Act; and
- terms and expressions defined in the Act should have the same meanings in new legislation; and
- matters provided for in the Act should not be restated in new legislation.
If there is doubt as to the meaning or application of any provision of the Act, Parliamentary Counsel should be consulted.
1 Thus, when a statute provided that a local authority could provide electric power to an adjoining district, it was held that New Plymouth could not supply to Waitara or Inglewood because they were several kilometres distant, and thus not adjoining in the most natural sense of that word: New Plymouth Borough v Taranaki Electric Power Board  NZLR 1128.
2 Thus, in a provision rendering it an offence to engage in "riotous, violent or indecent behaviour" in a place of worship, it was held that the word "indecent" was coloured by those which proceeded it, that is, "riotous" and "violent", and was not confined to indecency of a sexual nature: Abrahams v Cavey  QB 479; see also M v L  1 NZLR 747 at 765 and 766 ("sanity or testamentary capacity or other legal capacity").
3 R v Schildkamp  AC 1 at 25; R v Wilkinson  1 NZLR 403 at 407.
4 Sir Ivor Richardson has described scheme and purpose as "the twin pillars" of modern interpretation: (1985) 2 Australian Tax Forum 3.
5 Quilter v Attorney-General  1 NZLR 523.
6 Acts Interpretation Act 1924 s 5(f)(g).
7 See, for example, the note to s 59 of the Personal Property Securities Act 1999: until 2002 it referred to "knowledge" whereas the body of the section contains no such requirement.
8 Schlaadt v ARCIC  2 NZLR 318 at 322.
9 Manukau City Council v Ports of Auckland  1 NZLR 1 at 14.
10 Thus, the Conservation Act 1987 (s 2(1)) provides:
working day means a day that is not a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign's birthday, Labour Day, or a day during a period commencing on any Christmas Day and ending with the 15th day of the following January. It is quite clear that this is exhaustive, and is all working day means for the purposes of that Act.
11 Thus, in the Arms Act 1983 (s 2):
sale includes (a) barter; and (b) offering or attempting to sell, or having in possession for sale, or exposing for sale, or sending or delivering for sale, or causing or allowing to be sold, offered, or exposed for sale ...
It is clear that, in addition to these specified extended meanings, the word "sale" retains as well its normal meaning in ordinary speech.
12 "Means" and "includes" are discussed in Caldow Properties Ltd v HJG Low and Associates Ltd  NZLR 311.
13 Police v Thompson  NZLR 813.
14 For example, R v Joyce  NZLR 1070.
15 R v Dunn  2 NZLR 481 at 483.
16 Hadley v Perks (1866) LR 1 QB 444 at 457.
17 Hill v William Hill (Park Lane) Ltd  AC 530 at 546.
18 R v Gold  QB 1116, affd  AC 1063.
19 Associated Dairies Ltd v Baines  AC 524 at 532.
20 R v Coneybear  NZLR 52.
21 Below, paragraph 4 under the heading Purpose.
22 "(j) Every Act, and every provision or enactment thereof, shall be deemed remedial, whether its immediate purport is to direct the doing of anything Parliament deems to be for the public good, or to prevent or punish the doing of anything it deems contrary to the public good, and shall accordingly receive such fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the Act and of such provision or enactment according to its true intent, meaning, and spirit:"
23 Thus, in one case it was held that a sweet container made to resemble a baby's bottle came within the expression "toy" as used in the safety standards provisions of the Fair Trading Act 1986: Commerce Commission v Myriad Marketing Ltd (2001) 7 NZBLC 103,404.
24 McMonagle v Westminster City Council  AC 716; Wilson & Horton Ltd v CIR  1 NZLR 26 at 33.
25 "The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words ... This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation ... Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed": Inco Europe Ltd v First Choice Distribution  2 All ER 109 at 115 per Lord Nicholls. See also Frucor Beverages Ltd v Rio Beverages Ltd  2 NZLR 604 at 612-614 per Thomas J.
26 For example, R v Clayton  2 NZLR 211 at 214 (penal acts); CIR v Alcan NZ Ltd  3 NZLR 439 at 444 and 446 (tax acts). (But in cases of genuine doubt the individual should still get the benefit of that doubt.)
27 Cutter v Eagle Star Insurance Co Ltd  4 All ER 417 at 425.
28 Below, under the heading 'Values'
29 Chan Chi-hung v R  1 All ER 914 at 922.
30 R v Misic  3 NZLR 1.
31 R v Garrett  DCR 955.
32 R v Fellows  2 All ER 548.
33 Fitzpatrick v Sterling Housing Association Ltd  1 AC 27.
34 Birmingham City Council v Oakley  1 AC 617, especially at 632 per Lord Hoffmann. Cf Fitzpatrick v Sterling Housing Association Ltd  1 AC 27.
35 For example, Taylor v NZ Poultry Board  1 NZLR 394 at 404.
36 For example, H v C  3 NZLR 502.
37 For example, R v Allison  1 NZLR 679.
38 Section 31.
39 Section 33.
40 Sections 35 and 36.
41 Section 29.
42 Section 4.
43 For example, Registrar-General of Land v NZ Law Society  2 NZLR 745.
44 For example, Attorney-General v Daemar  2 NZLR 89.
45 Bank of England v Vagliano Bros  AC 107 at 144 and 145 per Lord Herschell.
46 For example, Garratt v Ikeda  1 NZLR 577 and Thompson v Vincent  3 NZLR 355.
47 Ogilvy & Mather (NZ) Ltd v Turner  1 NZLR 641.
48 For example, Sellers v Maritime Safety Inspector  2 NZLR 44.
49 Barton-Prescott v Director-General of Social Welfare  3 NZLR 179 at 184.
50 See Sir Ivor Richardson, "The role of judges as policy makers" (1985) 15 VUWLR 46 at 51 and 52.
51 Z v Z (No 2)  2 NZLR 258. And see Williams v Attorney-General  1 NZLR 646 at 681.
52 Justice McGrath, "Reading legislation and Ivor Richardson" in Carter, D and Palmer, M (eds), Roles and perspectives in the law: Essays in Honour of Sir Ivor Richardson Victoria University Press, Wellington, 2002, at 617 and 618.
53 For example, Thexton v Thexton  1 NZLR 237 at 250.
54 For example, Frucor Beverages Ltd v Rio Beverages Ltd  2 NZLR 604.
55 For example, Brown & Doherty Ltd v Whangarei County Council  2 NZLR 63 at 67.
56 For example, R v Palmer  1 NZLR 546 at 550.
57 For example, De Richaumont Investment Co Ltd v OTW Advertising Ltd  2 NZLR 831 at 841; Everitt v Attorney-General  1 NZLR 82 at 95.
58 See R v Bolton ex parte Beane (1986) 79 ALR 225; McLennan v Attorney-General  2 NZLR 469 at 473; R v Poumako  2 NZLR 695 at 702. Members of the House of Lords have recently expressed considerable concern about the use sometimes made of Hansard: Robinson v Secretary of State for Northern Ireland  UK HL 32 at paras 39 and 40.
59 Ministry of Transport v Noort  3 NZLR 260 at 272 per Cooke P.
60 Ibid at 279; Norton-Bennett v Attorney-General  3 NZLR 712 at 717. And see R v Patterson  1 NZLR 245.
61 See below, text at n 81.
62 Whether a limit is reasonable and justified depends on whether it is proportional to its objective. It must be rationally connected to that objective and no greater than necessary to achieve it. There is a most helpful discussion of s 5 by Andrew Butler in "Limiting Rights", a paper delivered to the conference: "Roles and Perspectives in the Law", at Victoria University of Wellington, 5 and 6 April 2002. A template for applying ss 4, 5, and 6 of the Bill of Rights, is provided in Moonen v Film and Literature Board of Review  2 NZLR 9 at 16, although the formulation there set out has not escaped criticism: see, for example, Professor Paul Rishworth, NZLS seminar: The Bill of Rights - Getting the Basics Right (2001), 44-46. In Moonen v Film and Literature Board of Review CA 238/01, 16 April 2002, at 760 the Court of Appeal noted that the template in Moonen No 1 was not meant to be prescriptive.
63 Moonen v Film and Literature Board of Review  2 NZLR 9 at 16.
64 They are fully discussed in Chapter 3 of these Guidelines.
65 Moulton v Police  1 NZLR 443.
66 Choudry v Attorney-General  2 NZLR 582.
67 Drew v Attorney-General  1 NZLR 58. Fundamental principles, as well as the Bill of Rights, were relied on in arriving at this conclusion.
68 Section 4 of the Interpretation Act 1999.
69 See, for example, W v W (2000) 14 PRNZ 157.
70 Accolade Autohire Ltd v Aeromax Ltd  2 NZLR 15.
71 Artemiou v Procopiou  1 QB 878 at 888.
72 For example, Hamilton City Council v Fairweather  NZAR 477 at 491-492 per Baragwanath J.
73 Z v Z (No 2), above n 51.
74 See above, text at n 30.
75 Accolade Autohire Ltd v Aeromax Ltd above n 70 at 18.
76 A good example is Progressive Enterprises Ltd v Foodstuffs (Auckland) Ltd (PC)  UKPC 25, 25 May 2002.
77 GB Hansard 583 HL Deb col 573 (Nov 18, 1997).
78 "When the court interprets legislation usually its primary task is to identify the intention of Parliament. Now, when s 3 applies, the courts have to adjust their traditional role in relation to interpretation so as to give effect to the direction contained in s 3": Poplar Housing and Regeneration Community Assn Ltd v Donoghue  QB 48 at 72 per Lord Woolf CJ. See also Re K  Fam 377 at 394 per Butler-Sloss P.
79 See R v Poumako  2 NZLR 695 at 702. This may also be an implication of Flickinger v Hong Kong  1 NZLR 439 where it is said that an established interpretation of an Act may have to be revisited after the Bill of Rights Act.
80 Above, text at n 60.
81 In R v Lambert  3 All ER 577 (HL) it was held that a "reverse onus" provision should be interpreted as referring to an evidential onus; in R v Phillips  3 NZLR 175 the New Zealand Court of Appeal found this was not a "reasonable" interpretation of such a provision..
82 See Young  CLJ 53.
83 See the judgments of Elias CJ and Tipping J, and Thomas J in R v Pora  2 NZLR 37.
84 R v DPP ex parte Kebeline  2 AC 326 at 373.
85 A useful account of statutory interpretation in Europe is to be found in Manchester C et al, Exploring the Law: the dynamics of precedent and statutory interpretation (2nd ed) Sweet and Maxwell, London, 2000, Chapters 1-5.
86 Sullivan, R, (2001) 22:3 Statute Law Review 175.
87 Section 5(j) of the Acts Interpretation Act 1924 required legislation to be given "such fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the Act and of such provision or enactment according to its true intent, meaning, and spirit". Section 5(1) of the 1999 Act is notable as it does not refer to "such fair, large, and liberal construction and interpretation".
88 Cf Longcroft-Neal v Police  1 NZLR 394, where the Court of Appeal held that a videotape cassette came within the definition of "document" in section 2 of the Indecent Publications Act 1963.
89 Regulations that prescribe forms, fees, and court rules are examples.