Interpretation and application of legislation
There are a number of common law and legislative rules that generally govern how legislation (both Acts and Secondary Legislation) are interpreted and applied. They are default rules, and so apply even if your legislation does not actively “apply” them, although it is possible to dis-apply or adjust many of them. It is important to understand these rules, and their potential impact on the legislation being developed so that you fully understand how the legislation will work in practice. In some cases, you may wish to adjust how the default rules will apply to ensure there are no unintended effects.
Chapter 4 sets out fundamental principles that apply and can affect interpretation. However, the primary source of the rules of statutory interpretation in New Zealand is the Legislation Act 2019. Part 2 of the Legislation Act 2019 provides:
- principles of interpretation
- default definitions
- rules that apply to the commencement, amendment, and repeal of legislation
- rules that apply to time and distance
- for the exercise of powers in legislation.
Any of these provisions can be overridden, extended, or restricted in a particular case but that should be done deliberately, using clear language, and only if there is a good reason to do so.
When interpreting legislation, the courts will employ the range of linguistic conventions that assist in giving meanings to the words used in their context. That context will include, as set out in chapters 4, 5 and 9, fundamental human rights and, in relevant cases, the principles of the Treaty of Waitangi, and New Zealand’s international obligations.
It is important for all people who are involved in developing legislation to understand how that legislation could be interpreted by the courts and other users. This understanding reduces risks that:
- a draft of the legislation fails to properly reflect the Government’s policy intent or
- the courts will give the legislation an unexpected interpretation.
- Part 1: Have the key principles of legislative interpretation been considered?
- Part 2: Have the specific definitions and meanings of expressions in Part 2 of the Legislation Act 2019 been considered?
- Part 3: Have the rules that apply to the commencement been considered?
- Part 4: Have the rules that apply to amendment and repeal of legislation been considered?
- Part 5: Have the rules for the exercise of powers been considered?
- Part 6: Have the rules that apply to time and distance been considered?
Have the key principles of legislative interpretation been considered?
The primary rules of interpretation should be considered when designing legislation.
The meaning of legislation must be ascertained from its text and in light of its purpose and context (see section 10 of the Legislation Act 2019). So:
- generally, words in legislation will be given their natural or ordinary meanings;
however, legislation must be read as a whole and other factors, such as the surrounding words, the subject matter of the relevant part of the Act, and the overall scheme of the Act may sometimes call for a different interpretation;
- other features of the legislation, such as any preamble, the table of contents, headings, diagrams, graphics, examples and explanatory material, as well as the organisation and format of the legislation, may also be considered as part of the interpretation task; and
- the purpose of the legislation is a key aid to interpretation. If possible, every provision in the legislation should be interpreted consistently with its purpose. The large pool of sources that the courts will draw on in interpreting an Act highlights the need to ensure that the legislation has internal coherence, and a clear purpose or policy objective that is adequately reflected in the provisions of the legislation and any explanatory material. See the supplementary material on Designing purpose provisions and statements of principle;
- the social, economic, environmental and legislative context may help the courts or other users to better understand the purpose and intent of the legislation.
Some Acts, such as Treaty Settlement Acts (see Chapter 5) and the Parliamentary Privilege Act 2014, have specific provisions that direct the reader how to interpret them. A specific provision may, for example, help clarify the relationship between the legislation and the common law.
Legislation applies to circumstances as they arise (see section 11 of the Legislation Act 2019): If possible legislation should be “future-proofed” by ensuring that it is flexible enough to properly address foreseeable developments in technology or society generally.
Legislation does not have retrospective effect (see section 12 of the Legislation Act 2019 and Chapter 12). Interpretation consistent with the New Zealand Bill of Rights Act 1990 is to be preferred wherever possible (see Chapter 6).
An Act does not bind the Crown unless that Act expressly provides that the Crown is so bound (see section 22 of the Legislation Act 2019 and Chapter 11).
Have the specific definitions and meanings of expressions in Part 2 of the Legislation Act 2019 been considered?
Legislation should apply the definitions in Part 2 of the Legislation Act 2019. New legislation should not restate those definitions.
Part 2 of the Legislation Act 2019 defines what certain words and phrases mean. It is not necessary to restate these definitions in new legislation.
· Act, enactment, legislation, Order in Council, Proclamation, secondary legislation
· Commonwealth country, part of the Commonwealth
· consular officer
· de facto partner, de facto relationship
· department, Ministry
· Governor-General in Council
· legislation website
· month and working day office
· presentation exemption
· public notification , public notice
· rules of court
· step-parent, stepdaughter, or any other relationship described by a word containing the prefix “step”
· definitions of “Act”, “Governor”, “land”, and “person” in enactments passed before 1 November 1999
· definition of “regulations” in enactments passed before the commencement of the Legislation Act 2019
· New Zealand, North Island or Te Ika-a-Māui, South Island or Te Waipounamu
· territorial limits of New Zealand, limits of New Zealand
Legislation can define these words and phrases differently but only if necessary. See, for example, the definition of “public notice” in section 5 of the Local Government Act 2002 , the definition of person in section 6 of the Financial Markets Conduct Act 2013, and the different statutory definitions of “working day”, including several that exclude the period from Christmas to mid-January.
Part 2 also includes the following:
- words that denote a gender
- words denoting a natural person may include companies and other entities
- words denoting companies and other entities may include natural persons
- when sending by post is taken to be done
- parts of speech and grammatical forms of words defined in any legislation have a corresponding meaning (for example, if an Act defines “supply”, then “supplied” and “supplier” will have a corresponding meaning)
- words in the singular include the plural and vice versa
- words used in secondary legislation have the same meaning as in the empowering Act
Have the rules that apply to the commencement been considered?
The rules that apply to the commencement should be considered when designing legislation.
Part 2 (sections 25 to 29) sets rules for the commencement of legislation. This includes rules that give effect to the commencement stated or provided for in the legislation, default rules for commencement if the legislation does not state or provide for commencement and further detail for the effective operation and application of those rules.
Generally, legislation or part of the legislation comes into force on the date stated or provided in the legislation. If an Act does not state or provide for a commencement date it comes into force on the day after Royal assent. If secondary legislation does not state or provide for commencement, it comes into force on the day after it is published or first made available
There are rules for the time at which legislation commences and when legislation commences if calculated by a number of months.
There is also a power to make an Order in Council bringing legislation into force, which is capable of being used more than once and includes the ability to make one or more orders setting different dates for different provisions.
[See supplementary material: Guidance on commencement clauses]
Have the rules that apply to amendment and repeal of legislation been considered?
The rules that apply to amending and repealing legislation should be considered when designing the transition from one legislative regime to another.
Part 2 (sections 30 to 39) sets out rules that may apply when legislation is amended or repealed. In particular:
- amendments are part of, and must be construed with, the legislation amended
- a repeal or an amendment does not affect any existing right, duty, status, or capacity (a legal position), and does not affect the validity of a past act
- a repeal or an amendment does not affect the completion of a matter or thing relating to an existing legal position or completing an existing proceeding
- a repeal or an amendment does not affect a liability for a past breach of legislation
- powers exercised under repealed or amended legislation may have continuing effect
- existing secondary legislation may continue to have effect under the new legislation applying references to new legislation not yet in force or to repealed legislation
- references to old legislation may be a reference to the new legislation.
Have the rules for the exercise of powers been considered?
The rules that apply to the exercise of powers should be considered when designing legislation.
Sections 43 to 51 set out rules for the exercise of powers conferred by legislation. In particular,—
- certain powers (eg, to make secondary legislation) may be exercised before the legislation commences if that is necessary to bring the legislation into operation
- a power to appoint a person to an office includes a power to remove or suspend a person or to appoint a temporary office holder
- a power to do a thing may be exercised to correct an error
- a power of an office holder may be exercised by a deputy or another person who is lawfully acting in the office
- a power to make secondary legislation (or another instrument) includes the power to amend or revoke it
- a power to prescribe a matter in secondary legislation includes a power to prescribe a matter for a class or to prescribe different matters for different classes
- a power, function, or duty may be exercised or performed more than once.
Have the rules that apply to time and distance been considered?
The rules that apply to time and distance should be considered when designing legislation.
Periods of time will be described in legislation in a particular way. The way periods of time are described will have a particular effect. Sections 54 to 57 set out rules for time, including:
- when a period starts and ends
- calculating periods of months (except for commencement)
- determining time generally
The rule for determining a measurement of distance is set out in section 58.