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Affecting existing rights, duties, situations and addressing past conduct
This is a single section from Chapter 11. Read the full chapter here.
Does the new legislation relate to matters that are the subject of ongoing or prospective litigation?
New legislation should not pre-empt matters that are currently before the courts or deprive successful litigants the benefit of any court decision in their favour.
The separation of powers and the independence of the judiciary require that the executive and legislative branches of government do not interfere with the judicial process. However, in some cases ongoing or prospective litigation may identify an area of the law that requires amendment or new legislation, and it would be inappropriate for the Government to await the outcome of the litigation before taking action.
In these cases it is important that any new legislation is explicit that the new law will not apply to any cases currently before the court or act to deprive those parties (or previously successful parties) from any benefit they have gained or might gain from a decision of the court. This is sometimes called preserving the “fruits” of the litigation.
If the new legislation is intended to do either of the above, the legislation must contain clear words setting out this intention.
The Crown Law Office should be consulted if the proposed legislation relates to issues which are the subject of current or prospective litigation. The LAC has produced some further guidance on the application of legislation to judgments and pending proceedings; see Appendix 1, Report of the Legislation Advisory Committee, 1 January 1994-31 December 1995: Recurring Issues.