Bail, family violence, and defining terms in legislation (now updated to explain how I’m wrong and dumb)

EDIT: this entire post is wrong because of the amended s 3AA of the Bail Act 2000.  Disregard it.  But for more shoot-from-the-hip legal analysis stick around!

This is to be filed under “this is strange and I haven’t seen it before, but I’m not saying it’s necessarily wrong”.

Here is the New Zealand Herald:

Changes to the Bail Act which take effect on Monday will mean the safety of victims and their families will be the primary consideration when deciding whether to grant bail or on what conditions for those charged with family violence offences.

It also means that any judicial officer, registrar or police employee who grants bail can impose any conditions they deem reasonably necessary to protect victims and their families.

The second tranche of changes under the Family Violence (Amendments) Act and the Family Violence Act come into force on July 1 next year. They will include extending Police Safety Orders, improved access to protection and property orders and removing legal barriers to information-sharing between agencies.

There is no doubt that the Family Violence (Amendments) Act 2018 is now in force.  And if you look in the Bail Act 2000 the changes are there (although legislation.govt.nz has not incorporated the amendments yet, so I haven’t linked it for now).  For example, s 8(3A) now states:

(3A) In deciding, in relation to a defendant charged with a family violence offence, whether or not to grant bail to the defendant or to allow the defendant to go at large, the court’s primary consideration is the need to protect –

(a) the victim of the alleged offence; and

(b) any particular person or people in a family relationship with the victim.

This is one of the new subsections that does the heavy lifting.  But you can see from the language that it only applies to defendants charged with a “family violence offence”.  Plainly it’s going to be important to know what a “family violence offence” is.

As with all legislation, we turn to the interpretation section to see what that has to say.  And it’s true “family violence offence” is defined.  Section 4 states:

family violence offence means an offence—

(a) against any enactment (including the Family Violence Act 2018); and

(b) involving family violence (as defined in section 9 of that Act)

So it can be any offence at all, but it has to include family violence.  But family violence doesn’t mean just anything, it is defined in s 9 of the Family Violence Act 2018.  That’s no problem in theory.  A whole bunch of legislation cross-defines terms like that.  We just go to look at the Family Violence Act 2018.

Except here’s the problem.  The Family Violence Act 2018 is not in force.  It exists.  It has been passed by the House and given royal assent.  But Parliament says it will not enter into force until 1 February 2019.

The question then becomes, can you define a term in an active act (the Bail Act) by reference to a definition in an Act that is not in force (the Family Violence Act)?

And I don’t know the answer to that.  I haven’t seen it done before, though that doesn’t really count for much.

In one sense, referring to a definition in a not-in-force Act seems okay.  The definition is just some words that are written down, and even if the Act is not yet in force they are words that Parliament has passed validly.  But it wouldn’t even matter if Parliament hadn’t passed the Family Violence Act already.  Parliament could define terms in its legislation by reference to literally anything if it wanted to.  Legislation could be directing us to look at the nearest KitKat wrapper if Parliament wanted us to.

But in another sense it seems strange.  By delaying the entry into force Parliament has said about the Family Violence Act “no no, these will be words you should care about, but not until we say so.  Not until the appointed hour”.  So why should we be permitted to take into account those words in any legal sense before that time.  And, if it wanted to, Parliament could have brought into force s 9 of the Family Violence Act from the same day as the Bail Act amendments entered into force.  That would have avoided this completely.

There’s no doubt that we can see how these two Acts will fit together after 1 February 2019 when they are both in force.  But before that time it is slightly unclear if the term “family violence” in the Bail Act remains effectively undefined.  It would be really interesting to know if this was intentional (and so the PCO thinks it’s fine), or whether this was an oversight.  Given the centrality of these definition provisions I would bet someone a lot smarter than me thinks it is all okay.

All it really means for certain is that I can add a new category to my trainspotting journal of legislative techniques.

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