This is a single section from Chapter 3. 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.

The following matters should be considered before deciding to follow an existing precedent:

  • The search for appropriate precedents should not be limited to legislation administered by 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.
  • New legislation must not copy New Zealand or overseas precedents without first considering whether the precedent will be efficient and effective having regard to the circumstances of the new legislation.
  • If following a precedent where the outcome is to be duplicated, be wary of making inconsequential amendments (such as the reordering of words or provisions to no substantive effect) in case there are unintended consequences.
  • 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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