This is a single section from Chapter 2. Read the full chapter here.

Are there any precedents in existing legislation?

Precedents from existing legislation should only be used if they are consistent with the scheme and purpose of the new legislation.

 

In some cases a provision or provisions in existing legislation may provide a useful precedent for the new legislation. The following matters should be considered when a precedent is being assessed for inclusion in new legislation:

  • the search for appropriate precedents should not be limited to the particular department that is developing new legislation (the courts will often consider the legislation of other departments when seeking to identify precedents);
  • the reasons for following a particular precedent, or for not following an apparently suitable precedent, must be considered and articulated in the policy documentation;
  • if there is an intention for a provision to have the same effect as a provision in other legislation, then this should be articulated in the policy documentation and instructions to the PCO;
  • inconsequential amendments (such as the re-ordering of words or provisions to no substantive effect) should be avoided;
  • new legislation must not copy New Zealand or overseas statutes without first considering whether or not the precedent will be efficient and effective having regard to the circumstances of the new legislation;

if a precedent is being used from foreign legislation (for example, where implementing trans-Tasman or other international agreements), the terminology used in foreign legislation must be appropriate for the New Zealand context.

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