Commitment to clear drafting

• 3.1 The Parliamentary Counsel Office (PCO) vision statement declares that the PCO is committed to improving access to legislation by ensuring that legislation is drafted as clearly and simply as possible.

What this chapter contains

• 3.2 This chapter deals with 3 main topics.

  3.3 The first topic (Legislative sentences) deals with the structure of legislative sentences.

  3.4 The second topic (Composition) is about drafting legislation—how we express legislative ideas in writing. The basis for this topic is the Guidelines for Clear Drafting (see 3.12). The Guidelines provide a summary of good drafting practices that were formulated by the PCO in 1999. Drafts are peer reviewed against the standards set by the Guidelines.

  3.5 The third topic (Other drafting tools) deals with non-standard aids to communication that are used in legislation. These include formulas, tables, flow-charts, and boxed examples.

  3.6 The chapter has a Further reading section that provides a list of books about writing and style. References in this chapter are to the books listed in that bibliography.

  3.7 The Appendix contains detailed material about “problematic words”. These are words and phrases that need to be used with caution, and whose background you should be familiar with. They are listed in 3.57.

• 3.8 “The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole ...” (Lord Hoffman in R v Brown [1996] 1 All ER 545, 560).

  3.9 The structure of a sentence—the order in which words are used, whether individually or in clusters, and the positioning (or proximity) of the parts of the sentence—largely determines the meaning of the sentence.

  3.10 Some basic principles advocated by the PCO and other legislative drafting offices include—

  • •make sentences simple and logical:

  • •use the positive rather than the negative:

  • •avoid double and triple negatives:

  • •use the active voice rather than the passive:

  • •use verbs instead of noun phrases:

  • •use paragraphs to separate lists of alternative or cumulative items from the main structure of the sentence:

  • •keep related words close together (eg, modifers should be kept close to the words they modify):

  • •do not mix conditions and exceptions in the same sentence:

  • •avoid noun strings (eg, “special education delivery programme outputs”):

  • •avoid demonstrative adjectives (eg, “that entity”):

  • •put the main clause before the conditional clause if the main clause is simple:

  • •make sure the words “other than” are placed near to the words they are qualifying.

Guidelines for clear drafting—Plan: to organise material clearly

• 3.11 Here are 3 key areas to consider when planning a draft: the objectives, the framework, and the order in which material is to be arranged.

  Objective	What does it have to do? In legal terms, what must the thing you are drafting (ie, Bill, Part, section) achieve?
  Framework	Work out the overall conceptual structure: group material into Parts, subparts, and sections, etc.
  Order	Organisation of material is key to a well-structured Bill or regulation. Material should be arranged in a logical order. For example,— •substantive matters should come before procedural matters: •the general should come before the particular: •provisions that have universal or wide application should come before provisions that have limited application: •administrative and procedural provisions should be located after substantive provisions so as to give prominence to what is important to readers. Readers should not have to read through a lot of provisions that set up bodies and define their functions and powers before they get to what really matters to them.
  	Material can also be arranged chronologically or by reference to probability (most likely to least likely).
  	The arrangement of material should always be consistent. If a particular order has been used in one place, it should, if the underlying reasons are the same, be followed elsewhere.

Guidelines for clear drafting—Write: to communicate with your reader

• 3.12 As a general guide, put yourself in the readers’ shoes. Ask yourself what readers need to know to help them understand.

  Headings	Summarise if possible, otherwise indicate specific topic:
  	Keep brief:
  	Draft with an eye to use in contents:
  	Use liberally.
  Sections	One coherent group of ideas per section:
  	Use the narrative style—avoid excessive cross-references:
  	Preferably no more than 5 subsections:
  	Avoid going down to subsubparagraphs.
  Sentences	Get to the main point (from the reader’s point of view) early: Keep sentences short and simple— •focus on verbs: •avoid nominalisations: •avoid passive constructions unless they are necessary to convey the desired meaning: •keep the subject and predicate close: •punctuate effectively.
  Words	Use the simplest word that conveys the meaning:
  	Eliminate unnecessary words:
  	Do not use archaic language:
  	Always use gender-neutral language:
  	Define terms in a way that is truthful and helpful to the reader.
  General	Be consistent:
  	Use a positive statement unless a negative one is better.

Summarise if possible, otherwise indicate specific topic

• 3.13 In Part headings, subpart headings, cross-headings, and section headings, you should use words that indicate the main topic of the Part, subpart, etc, as specifically as possible. A heading like “Minister’s powers” does not tell the reader much. A heading “Minister’s powers concerning licences” is much more specific and useful.

  3.14 Do not try to summarise a provision in its heading.

  3.15 Some headings follow established conventions (eg, “Interpretation” and “Regulations”). You should continue to use these headings as they are part of established PCO style.

Keep headings brief

• 3.16 Headings should be brief. Ideally, they should not go over 1 line of type. If a heading is going over 2 lines, recast it if possible.

  3.17 It is standard PCO practice to omit all articles (eg, “a” and “the”) from headings, except in headings that refer to the Crown. In this case, keep the article, as in “Act binds the Crown”.

Draft with eye to use in contents page

• 3.18 The contents page of legislation lists all the headings used for Parts, subparts, cross-headings, sections, and schedules. Ideally, the contents page should act like a summary or map of the whole work. You should design your headings with this purpose in mind. This means that headings have a relationship to each other, and not just to the material that they precede.

Use headings liberally

• 3.19 Subpart headings, cross-headings, and section headings all help the reader see the structure of the legislation. They should also help readers quickly find what they are looking for. Use headings (other than Part headings) liberally.

  3.20 If you use cross-headings within a Part, be aware that every section in the Part must live under an appropriate cross-heading. The cross-heading will apply until another cross-heading displaces it.

One coherent group of ideas per section

• 3.21 Sections are like paragraphs in narrative writing. Each sentence (subsection) in a section should relate to the main theme of the section. The main theme should come first, in subsection (1). The heading should indicate the theme or subject matter of the section.

Use narrative style—Avoid excessive cross-references

• 3.22 In ordinary narrative writing, if a person or thing is mentioned in a paragraph, readers will assume that a later reference to the same thing is a reference to the one mentioned before. This rule is sometimes known as the narrative style rule. The rule can be relied on in legislation (sections and clauses) too, unless to do so would cause ambiguity. This means that you do not have to use a cross-reference when referring to something identified earlier in the section, unless using a cross-reference would avoid ambiguity.

  3.23 In the following example, the provision is dealing with only 1 type of licence. It is therefore safe to assume (and safe for the reader to assume) that a reference to an application is a reference to the application referred to in subsection (1).

  •  

    • (1) A person who may apply to the Registrar for a licence to ...

      (2) An application under subsection (1) must be in triplicate.

      (3) A person who applies for a licence under subclause (1) and who is under 16 years must lodge a fourth copy of the application ...

  •  

    • (1) A person who may apply to the Registrar for a licence to ...

      (2) The application must be in triplicate.

      (3) An applicant who is under 16 years must lodge a fourth copy of the application ...

Preferably no more than 5 subsections

• 3.24 Try to structure ideas into small groups. In legislation, that translates into saying “keep the number of subsections in a section low”. If there are more than about 5 subsections in a section, see if you can split the section.

Avoid subsubparagraph level

• 3.25 A sentence structure that requires you to use subsubparagraphs is probably too complex.

  • 53 Main topic

    (1) Statement of, or first idea about, the topic.

    (2) Second idea about the topic—

    • (a) first element within the second idea:

      (b) second element within the second idea—

      • (i) first element within second element of second idea:

        (ii) second element within second element of second idea:

        • (A) first element within second element of second element of second idea; and

          (B) second element within second element of second element of second idea.

Avoid suspense—Get to main point early

• 3.27 Indicate the topic of the sentence at the start. Let the reader know early on what the subject matter of the sentence is.

  3.28 The approach in 3.27 is not as straightforward as it sounds. The order in which you place the elements is a matter for your judgment, but you should be trying to put what the reader needs to know (whatever you think that is) as early as possible.

  3.29 The structure known as the “sandwich” usually offends against the guideline of getting to the main point early. A common form of sandwich is—

  •  Where—

    • (a) the Council has served notice ...

      (b) the time specified in the notice has passed ...

      (c) the Council considers that the licence-holder ...

      the Council may suspend the licence.  

Keep sentences short and simple

• 3.31 Long sentences tax readers and keep them in suspense. To help readers, the general rule is to keep sentences short. Keep the number of ideas in the sentence to a minimum. Having more and shorter subsections is generally preferable to fewer longer ones. However, a mere count of the number of words is not really the point. The general rule in ordinary writing is to keep sentences to 30 words or less. In legislation, with the possibility of shredding to help the reader follow what is being said, the number of words in the whole sentence is not so relevant.

  3.32 From the readers’ perspective, the structure of a sentence is more important than its length. A well-structured long sentence may be easier to follow than a poorly structured short one. But it turns out that many of the techniques for good structuring also produce the most concise result.

  3.33 The rest of the paragraphs in this section (3.34 to 3.52) suggest ways to achieve short, well-structured sentences (ie, subsections).

Focus on verbs

• 3.34 In legislation, the verbs of most sentences will—

  • •prohibit something (must not/may not):

  • •require something (must do):

  • •enable something (may do):

  • •declare something (this is).

Avoid nominalisations—Making verbs into nouns

• 3.40 A nominalisation is a noun derived from a verb. In formal writing, strong verbs (eg, “consider”) are often replaced by a nominalisation plus a weak verb (eg, “give consideration to”). The result is more wordy, less direct writing. Removing nominalisations will make your writing shorter and crisper.

  3.41 Here are some common nominalisations—

  Strong verb	Nominalisation plus weak verb
  to apply	to make an application
  to comply	to ensure compliance
  to deliver	to effect/make delivery
  to hear	to conduct a hearing
  to discover	to make a discovery
  to investigate	to conduct an investigation
  to consult	to undertake consultation

  
  

  •  ... shall give consideration to multicultural character of New Zealand society ...

     must consider the multicultural character of New Zealand society.

Avoid passive constructions

• 3.43 Writing in the active voice rather than the passive voice usually produces shorter, clearer writing. The active voice identifies in a direct way who is doing what.

  •  Up to 9 persons may be appointed by the Minister to be members of the Advisory Committee.

     The Minister may appoint up to 9 persons to be members of the Advisory Committee.

Keep subject and predicate (verb plus object) close

• 3.46 Avoid inserting clauses or phrases between the subject of a sentence and its (main) verb—

  •   The Minister may, if satisfied that the applicant has sufficient funds, issue a licence to the applicant.

      The Minister may issue a licence to the applicant if the Minister is satisfied that the applicant has sufficient funds.

Punctuate effectively

• 3.50 Punctuation provides a signpost to sentence structure. A great deal has been written about it, but for the purposes of this manual it is probably sufficient to repeat the 4 rules set out in Thornton (1996, p 35)—

  • •punctuate sparingly and with purpose:

  • •punctuate for structure and not for sound:

  • •use conventional punctuation:

  • •punctuate consistently.

Use simplest word that conveys meaning

Eliminate unnecessary words

• 3.62 An obvious way to shorten sentences is by eliminating redundant words. Some phrases that have traditionally been used in legislation can be replaced by single words or shorter phrases.

  Traditional	Suggested equivalents
  as to whether	whether
  by reason of	because
  if there are any conditions that do not comply	if any conditions do not comply
  in lieu of	instead of
  in like manner as	as/in the same way
  in relation to/in respect of	for/to/about/concerning
  in the event that	if
  is allowed to/is permitted to	may
  is void and of no effect/does not have any force or effect	has no effect
  meets the requirements of	complies with
  otherwise than	except
  pursuant to	under/in accordance with
  take such steps as are appropriate	take appropriate steps
  with the permission of the Minister	with the Minister’s permission

Never use archaic language

• 3.66 A number of words and phrases traditionally associated with legal writing are archaic and should not be used in legislative drafting. They include—

  Archaic words and phrases
  abovementioned	hitherto
  aforementioned	said
  aforesaid	save that
  beforementioned	thereafter
  foregoing	thereby
  hereafter	therefrom
  herein	whatever
  hereinafter	whatsoever
  hereinbefore	wheresoever
  hereto	whomsoever

Always use gender-neutral language

• 3.69 Drafting in gender-neutral language has been PCO practice since the mid-1980s. The Interpretation Act 1999 does not continue the provision formerly contained in section 4 of the Acts Interpretation Act 1924 that the masculine gender includes the female gender. The result of this change is that gender-specific terms are given their ordinary meaning and do not include other genders (except in enactments made or passed before the Interpretation Act 1999 came into force on 1 November 1999). It is therefore essential to use gender-neutral language unless a specific gender is intended. For example, certain offences may be committed only against women.

  3.70 Some techniques for converting gender-specific language into gender-neutral language include—

  Technique	Gender-specific version	Gender-neutral version
  Omit the pronoun	A member of the Tribunal may resign his office	A member of the Tribunal may resign office
  Repeat the noun	A member of the Tribunal may resign his office	A member of the Tribunal may resign the member’s office
  Use masculine and feminine pronouns	A member of the Tribunal may resign his office	A member of the Tribunal may resign his or her office
  Recast the sentence into the plural	A member of the Tribunal may resign his office	Members of the Tribunal may resign their office
  Convert the noun to a verb form (see 3.40 on why you should anyway)	The Commissioner may give his consent ...	The Commissioner may consent ...
  Use a relative clause	Where a mortgagee exercises a power of sale, he must not ...	A mortgagee who exercises a power to sell mortgaged property must not ...
  Use a passive construction (but see 3.43)	The Registrar must advise the applicant of his decision	The applicant must be advised of the Registrar’s decision

Use defined terms that are truthful and convey some meaning

• 3.75 If possible, a defined term should be—

  • •intuitive (it should of itself convey some indication of its meaning):

  • •accurate (the meaning that it conveys of itself should not be misleading):

  • •obvious (its form and use should suggest that it is a defined term).

Be consistent

• 3.78 Use words and forms consistently within a piece of legislation. For example, if a licence is “granted”, do not later refer to it as being “issued”. If you create a number of offences, use the same formulation for all of them, if possible.

Use positive statements unless negative ones are better

• 3.79 Affirmative statements are usually more direct and straightforward than negative statements. Multiple negatives should only be used if there is no other way of expressing the provision.

  •   The returning officer must not count the vote of a member whose dues are not up to date.

      The returning officer must count only the votes of members whose dues are up to date.

      a person who is not under the age of 17

      person aged 17 or over

Tables

• 3.80 Tables present data in a more accessible form.

  3.81 Tables are effective when the data to be presented is made up of similar kinds of components, and those components are linked in the same way (eg, amendments, where the components might be the provision amended, the words omitted, or the words substituted).

  3.82 You may need to introduce a table with a narrative statement explaining how the components set out in the table are linked together.

  3.83 If provisions are becoming overloaded or repetitive because they have too many essentially similar statements, consider replacing the provisions with a table. In that kind of situation, a table may—

  • •avoid needless repetition of words that explain how similar components are linked together; and

  • •allow the explanation of the link between similar components to be given in one place (eg, the body of a Bill), and the table setting out those components to be given elsewhere (eg, a schedule).

• 3.84 Tables are often placed in schedules, where they may be in landscape rather than in portrait. They may also be useful within a clause, section, or regulation, or as part of a form or a note to a form, in which case they must be in portrait.

  3.85 When designing a table, consider the need to amend it and the form those amendments may need to take.

  3.86 For examples of tables (or of amendments to them), see—

  • •Administration Act 1969 (1969 No 52) section 77 (as substituted on 1 February 2002 by the Administration Amendment Act 2001 (2001 No 6)):

  • •Agricultural Workers Accommodation Regulations 1963, Amendment No 1 (SR 1975/246):

  • •Dairy Industry Restructuring Act 2001 (2001 No 51) Schedule 5:

  • •Employment Relations Act 2000 (2000 No 24) section 74:

  • •Estate and Gift Duties Amendment Act 1972 (1972 No 25) section 7:

  • •Fisheries Act 1996 (1996 No 88) section 319:

  • •Food Amendment Regulations 1998 (SR 1998/191) regulations 4 and 6:

  • •High Court Rules, form 64Q, note 4 (as inserted by the High Court Amendment Rules 2000 (SR 2000/109)):

  • •Human Rights Review Tribunal Regulations 2002 (SR 2002/19) regulations 6 and 14:

  • •Maori Reserved Land Amendment Act 1997 (1997 No 101) Schedule 2 clauses 2(1) and 3(1):

  • •Medicines Regulations 1984 (SR 1984/143) regulation 6(3):

  • •Mutual Assistance in Criminal Matters Act 1992 (1992 No 86) section 24A and Schedule (as substituted by Mutual Assistance in Criminal Matters Amendment Act 2002 (2002 No 23), and see also sections 15 to 17 of that Act):

  • •Police Act 1958 (1958 No 109) section 27(3):

  • •Shearers Regulations 1963, Amendment No 1 (SR 1975/220):

  • •Superannuation Amendment Act 1970 (1970 No 116) section 12(2):

  • •Tariff (Zero Duty) Amendment Act 1998 (1998 No 100) section 2:

  • •Weights and Measures Amendment Regulations 1998 (SR 1998/30) Schedules.

• 3.88 Examples are part of the enactment in which they occur. This is made plain by section 5(2) and (3) of the Interpretation Act 1999, which is itself an example of an example—

  •  

    • (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.

Formulas

• 3.95 Algebraic formulas assist in calculating amounts if explaining the calculation in words becomes lengthy and involved. If possible, express the variables of the formula in words rather than symbols. For example,—

  •  

    1–  (residual value x 1)

    ---

     (cost estimated useful life)

  • 
    (Provide definitions of the variables immediately below the formula if they are required.)

• The following list contains books and articles on clear drafting.

  Author	Name	Publication details
  Aitken, J K	Piesse: The Elements of Drafting	9th ed, The Law Book Company, Australia, 1995
  Asprey, Michele M	Plain Language for Lawyers	3rd ed, Federation Press, Sydney, 2003
  Bailey, Edward P	Plain English at Work: A Guide to Business Writing and Speaking	Oxford University Press, USA, 1996
  Barnes, Jeffrey	Shining Examples	Commonwealth Association of Legislative Counsel, The Loophole www.opc.gov.au/calc/docs/LOOPHOLE2004.pdf (accessed 17/8/07)
  Costanzo, Margot	Advances in Plain Language: How to be Plain without being Ordinary	NZ Law Society Workshop, September 1997
  Dick, Robert C	Legal Drafting in Plain Language	3rd ed, Carswell, Canada, 1995
  Driedger, Elmer A	The Composition of Legislation; Legislative Forms and Precedents	2nd ed, Department of Justice, Ottawa, 1976
  Elliott, David C	Using Examples in Legislation	David Elliott www.davidelliott.ca/papers/ (accessed 17/8/07)
  Gowers, E	The Complete Plain Words	3rd ed, HMSO, London, 1986
  Meehan, Michael and Tullock, Graham	Grammar for Lawyers	Butterworths Guides, Australia, 2001
  Melville, L W	The Draftsman’s Handbook	2nd ed, Longman Group UK Ltd, UK, 1991
  Miers, David R, and Page, Alan C	Legislation	2nd ed, Sweet and Maxwell, Great Britain, 1990
  Strunk, W and White, E B	The Elements of Style	4th ed, Longman Publishers, USA, 2000
  Sullivan, Ruth	Driedger on the Construction of Statutes	3rd ed, Butterworths, Toronto, 1994
  Thornton, Garth	Legislative Drafting	4th ed, Butterworths, UK, 1996
  Venolia, Jan	Write Right!: A Desktop Digest of Punctuation, Grammar and Style	4th ed, Top Speed Press, Berkeley, USA, 2001
  Williams, Joseph M	Style: Towards Clarity and Grace	University of Chicago Press, 1990

All, each, or every

• A3.1 These words are often used where they would be better omitted or replaced by “a”, “an”, or “the”. For example,—

  •   An elected member holds office for 3 years.

       not

      All elected members hold office for 3 years.

And, or

• A3.3 Thornton’s (1996) basic advice is to use “and” to connote togetherness (conjunction), and “or” to mean that you can take your pick (disjunction). This reflects our ordinary usage of “and” and “or”.

  A3.4 “And” has been judicially construed in a disjunctive sense, and “or” in a conjunctive sense, so drafters should take care when choosing. Consider the context carefully, and if the chance of ambiguity exists, eliminate it. If necessary, restructure the sentence.

  A3.5 Thornton asserts (1996, p 130) that in definitions you may generally use either “and” or “or”. Either of the following formulations is acceptable, and they mean the same thing:

  •   animal means dogs, cows, and sheep

      animal means dogs, cows, or sheep

• A3.6 Another reason why “and” and “or” are not in fact as discreet as they first appear is because “and” in a positive statement turns to “or” in a negative one. For example, “The committee may accept oral submissions and submissions recorded on video” turns into “The committee may not accept oral submissions or submissions recorded on video”. In this case, the “or” is really doing the job of an “and”.

  A3.7 Asprey (p 172) lists some extra words you could use to clarify the meaning of an “and” or an “or”. They are—

  • Either A or B or both.

  • Either A or B but not both.

  • Any one of the following: A: B: C.

  • Any one or more of the following: A: B: C.

  • Each of the following, together or separately: A: B: C.

  • All of the following together but not individually: A: B: C.

• A3.8 The last 4 options in A3.7 work well in a paragraphed subsection. Both the lead-in words and the individual paragraphs will end with a colon. You have avoided using “and” or “or”, but the meaning is completely clear. The most common forms of this technique in the PCO are the expressions “all or any of the following” or “1 or more of the following”. They have the same effect.

  A3.9 The first 2 options in A3.7 are available only if you do not paragraph. For example, you cannot write the following:

  •   Either—
    A; or
    B; or
    both A and B

  “Either” is used only when there are 2 options. Paragraphing this phrase makes it look as though there are 3 options. In an unparagraphed provision, the “either” applies to the A and the B, but is not read as extending to the “or both”.

  A3.10 Finally, the expression “and/or” should never be used. Although it may appear to be a shorthand way of saying “any or all of the following”, its meaning is frequently ambiguous. You should work out exactly what you mean, and say it using as few (but no fewer) words as you need.

  A3.11 See also—

  • •Asprey pp 169–175:

  • •Dick pp 104–111:

  • •Thornton pp 130–131:

  • •Piesse pp 72–85.

Any

• A3.12 “A” or “an” is usually just as effective as “any” and free from ambiguity. “Any” may be ambiguous because it is capable in some contexts of carrying the same meaning as “every”. In the following example, it is not clear whether the Minister must consult 1 organisation or every organisation:

  •   The Minister must consult any organisation that appears to the Minister to represent a substantial number of citrus growers.

Before, after, or from

• A3.13 Great care must always be exercised in using these terms, and the drafter must always have a proper appreciation of their effect in particular situations.

  A3.14 Section 35 of the Interpretation Act 1999 sets out rules for interpreting the word “from” in relation to periods of time. A period of time described as beginning “from” a specified day, act, or event does not include that day or the day of the event or act unless a contrary intention appears.

  A3.15 Section 10 of the Interpretation Act 1999 provides that if an enactment is expressed to take effect from a particular day, the enactment takes effect at the beginning of the next day.

  A3.16 A period of time prescribed as ending “before” a specified day, act, or event does not include that day or the day of the act or event (see section 35(4) of the Interpretation Act 1999).

  A3.17 In many cases, it is better to define exactly the period concerned. For example, a period may be expressed to begin on a specified day and to end with the close of another day. In other cases, it may be better to use the word “after” instead of the word “from”.

Being, not being

• A3.18 Do not use “being” and “not being” to join relative clauses. For example,—

  •   A person who is 70 years or over, being a person who has a driver licence.

  Join the 2 clauses with “and” instead. For example,—

  •   A person who is 70 years or over and has a driver licence.

Comprise, compose

• A3.20 A whole comprises the parts of which it is constituted, but the parts do not comprise a whole. Thus New Zealand comprises 2 large islands and a number of smaller ones. It is not correct to say that 2 large islands and a number of smaller ones comprise New Zealand.

  A3.21 Do not confuse “comprise” with “compose”. While compose does mean “make up, constitute”, you must use a preposition if you use “compose”. For example,—

  •   A body corporate both comprises x members and is composed of x members.

Country

• A3.22 Sometimes there is confusion as to whether we should refer to “countries” or “States”. The proper word at international law is usually “State”.

Deem

• A3.23 The word “deem” has been frequently used in statutes. The purpose was to create a legal fiction. See section 50 of the Privacy Act 1993, which provides that all codes of practice issued under section 46 of that Act are “deemed to be regulations for the purposes of the Regulations (Disallowance) Act 1989 ...”.

  A3.24 “Deem” has traditionally been used when something is to be what it is not, or if something was not to be what it is. For example,—

  •   A person who has received an offer of compensation is deemed to have accepted the offer unless the person registers an objection within 30 days of receiving the offer.

Except, unless

• A3.28 If a provision is expressed to apply “except” in specified circumstances or “unless” something happens, consider whether there is provision for the consequences if that circumstance does occur or that something else does happen, that is, when the provision no longer applies. A complementary provision may be necessary, as supplied in the following example:

  •   A mortgagee who exercises a power to sell mortgaged property must not become the purchaser of the mortgaged property except,—

    • (a)  in accordance with section 166, at a sale of land or goods through the Registrar; or

      (b)  in accordance with an order of a court made under section 168.

Existing

• A3.29 This word requires an unambiguous reference to a fixed point in time. A definition may be desirable.

Less than, more than

• A3.30 To provide for “less than X” and “more than X” has the effect of excluding X itself and leaving it unprovided for. Use “not exceeding/exceeding” or “less than/at least” instead. “Above/below” and “over/under” should be similarly avoided.

May, must, or shall

• A3.31 “May” should be used where a power, permission, benefit, or privilege given to some person may, but need not, be exercised, ie, exercise is discretionary. For example,—

  •   The District Court Judge may impose any other conditions on the person’s release that the Judge considers necessary.

Notwithstanding, subject to

• A3.36 Each provision of an Act or part of a provision of an Act must be read in its immediate context and in the context of the Act as a whole. This is based on the decision in Greenshields v The Queen [1958] SCR 216 in which Locke J stated as follows (p 225):

  The broad general rule of construction of statutes is that a section or enactment must be construed as a whole, each portion throwing light, if need be, on the rest.

• A3.37 Another decision along the same lines is Hampson v Department of Education and Science [1990] 2 All ER 513, in which Lord Lowry stated as follows (p 518):

  ... an expression which is prima facie neutral must be looked at in both its immediate and its more remote context.

• A3.38 See also the statement made in relation to this matter in Driedger on the Construction of Statutes (Sullivan 1994, pp 245–246). That statement is as follows:

  Each provision or part of a provision must be read both in its immediate context and in the context of the Act as a whole. When words are read in their immediate context, the reader forms an impression of their meaning. This meaning may be vague or precise, clear or ambiguous. Any impressions based on immediate context must be supplemented by considering the rest of the Act, including both other provisions of the Act and its various structural components.

• A.3.39 However, if provisions in an Act or in different Acts are or may be inconsistent with each other, the expressions “notwithstanding” and “subject to” have been frequently used to clarify which one prevails—these expressions should be avoided if possible. If a particular provision is to override another, this can be achieved in a direct way by saying: “This section applies despite anything in section 00” or “This section prevails over section 00”. If a provision is to give way to another, this can be achieved by saying: “Section 00 overrides this section”. In some cases, it may be necessary to spell out more precisely the relationship between the provisions by stating the reason one takes precedence over the other. Simply stating that one overrides the other can still leave doubt as to why it does.

  A3.40 “Subject to” should never be used when the intended meaning is “in accordance with”. These phrases do not have the same meaning: the first denotes a conditional relationship and the second compliance.

  A3.41 “Notwithstanding anything in this Act” (or a variation of this) is a formula quite often used in New Zealand statutes—

  •   Notwithstanding anything in any other enactment ...

      Notwithstanding the provisions of subsections (1) and (2) or section 60(2), but subject to subsection (2A) and section 60(3) ...

  Similar formulas are—

  •   Except as provided in this Part ...

      This Part of the Act shall apply notwithstanding anything in any other Part of this Act ...

Present, lay

• A3.45 Use “present to” for a requirement to present a report or paper to the House of Representatives (see SO 363). Note that some of the important precedents still use the old term “lay before” the House of Representatives (see section 44A of the Public Finance Act 1989). These precedents should not be followed in this respect.

Sitting day, sessions

• A3.46 Old precedents refer to a requirement to lay a report or paper before the House of Representatives by the end of a parliamentary session. It is now preferred practice to refer instead to a requirement to present a report or paper not later than [x] sitting days after [...].