Chapter 1
Initial review under section 202: background, purpose
and guiding principles

Initial review under section 202

1.7There were some concerns about the sea change proposed in the Evidence Bill. Even some of the Bill’s supporters harboured concerns about aspects of the reforms. The Ministry of Justice noted in its departmental report to the Select Committee that the New Zealand Law Society, for example, saw the advantages of clarity, simplicity and accessibility of having all evidence laws in one place and supported the simplification of overly technical rules. However, it did not support fundamental changes to the current law in some areas.9

1.8Perhaps in response to these concerns about how the new legislative scheme would “bed in”, a provision requiring periodic review of the Act was included. Section 202 reads:

202 Periodic review of operation of Act
(1) The Minister must, as soon as practicable after 1 December 2011 or any later date set by the Minister by notice in the Gazette, and on at least 1 occasion during each 5-year period after that date, refer to the Law Commission for consideration the following matters:
(a) the operation of the provisions of this Act since the date of the commencement of this section or the last consideration of those provisions by the Law Commission, as the case requires:
(b) whether those provisions should be retained or repealed:
(c) if they should be retained, whether any amendments to this Act are necessary or desirable.
(2) The Law Commission must report on those matters to the Minister within 1 year of the date on which the reference occurs.
(3) The Minister –
(a) may not set a date later than 1 December 2011 for the commencement of the initial periodic review of this Act under subsection (1) unless the Minister is satisfied that, because of the limited number of cases concerning the provisions of this Act decided by the superior courts of New Zealand or for any other reason, it is appropriate to defer the date of the initial periodic review; and
(b) must not set a date later than 1 December 2014 under subsection (1).
1.9The inclusion of this review mechanism by the Select Committee was explained at a later stage in the parliamentary process by Christopher Finlayson MP (as he was then):10

An important issue arose in the select committee. The issue was how, once the legislation has been passed, we will ensure that it is kept up to date. That is an important factor, bearing in mind the legislative history of the Evidence Act, which was first enacted in 1908 then amended three or four times. The last real substantial amendment to the Evidence Act 1908 was the Evidence Amendment Act (No 2) of 1980. So periodic review of this kind of legislation raises important questions. Given the huge amount of work that has been done by the Law Commission over the years and, more recently, the excellent work by the ministry, it is important to ensure that the new legislation is kept up to date. On the other hand, we do not want to see regular amendments as soon as there has been a case on a particular aspect. In other words, the legislation will need to have time to settle down.

I commend this bill to the Committee as a good model for post-legislative review. I am not saying that it should be [in] all legislation, but, certainly, with this kind of legislation we do not want those finicky amendments that sometimes bedevil legislation. It will be good for the body that authored the reports that gave rise to the legislation to look at this legislation after it has been in operation for 5 years, and in a principled way go through the various provisions to see whether the sorts of innovations we have been talking about this afternoon actually work and, if they do not, what changes need to be made. So I simply say that it is a good and workable clause, and it will enable this very important area of the law to be kept up to date, not in a piecemeal or an episodic fashion but in a principled way.

1.10In accordance with s 202, the Minister of Justice wrote to the Law Commission on 28 February 2012 to refer the matters outlined in s 202(1) for review. This report responds to that reference.

9Ministry of Justice Evidence Bill: General Comments and Miscellaneous Issues: Departmental Report for the Justice and Electoral Committee (June 2006) at 1.
10(23 November 2006) 635 NZPD 6638.