Drafting convention for the numbering of inserted provisions

The convention

Provisions inserted at end of sequence

If a statute is amended by inserting provisions after an existing provision that has the last number in a sequence, and the inserted provisions are numbered by reference to that existing provision, the inserted provisions are numbered so as to continue the sequence.

For example, if subsection (5) is the last subsection in a section, new sections inserted after subsection (5) are inserted as subsections (6), (7), (8) and so on. Similarly, new paragraphs inserted between existing paragraphs (cb) and (d) in a subsection are inserted as paragraphs (cc), (cd), (ce) and so forth.

Provisions inserted within or before sequence

If a statute is amended by inserting provisions between two existing, sequentially numbered provisions, or before the beginning of an existing sequence of provisions -

1. provisions numbered by reference to the existing provision that they follow are numbered by adding "b", "c", "d", "e" and so on, or "B", "C", "D", "E" and so on, to the number of that existing provision;
2. provisions numbered by reference to the existing provision that they precede are numbered by adding "a", "ab", "ac", "ad" and so on, or "A", "AB", "AC", "AD" and so on, to the number of that existing provision.

For example, new sections inserted between sections 3 and 4 of an Act are inserted as sections 3B, 3C, 3D and so on. Similarly, new paragraphs inserted between paragraphs (cb) and (cc) in a subsection are inserted as paragraphs (cbb), (cbc), (cbd) and so on. Note that in these examples no section 3A or paragraph (cba) is inserted; a section 3A would precede section 3 and a paragraph (cba) would precede paragraph (cb).

On the other hand, new paragraphs inserted before paragraph (a) of a subsection are inserted as paragraphs (aa), (aab), (aac) and so on. Similarly, new subsections inserted between subsections (3) and (3B) in a section are inserted as subsections (3BA), (3BAB), (3BAC) and so on. Note that in these examples no paragraph (ab) or subsection (3BB) is inserted; under the preceding part of the convention, a paragraph (ab) would follow paragraph (a) and a subsection (3BB) would follow subsection (3B).

Comment

Taxation Acts are regularly amended by the insertion of new provisions. An inserted provision, or sequence of provisions, must be numbered in a way that identifies its position in the principal Act. Provisions that are inserted into New Zealand statutes are numbered by adding a letter to the number of an existing provision that the inserted provision follows or precedes. The convention described above is based on existing New Zealand drafting practice, with two variations of that practice for the purposes of systematic consistency.

Use of "A" or "a" as a suffix

The first, and more significant, variation relates to a restriction on the use of "A" or "a" as a numbering suffix. This suffix has been used by drafters to indicate the first in a sequence of inserted provisions. Thus, new sections inserted between sections 3A and 3B of an Act have been numbered 3AA, 3AB, 3AC and so on. There has, however, been no standard way of indicating whether the new provisions have been inserted before or after a provision. Thus, new sections inserted between sections 3 and 3A of an Act can also be numbered 3AA, 3AB, 3AC and so forth.

As a result, if the provisions of an Act are numbered as sections 1, 2, 3, 3A, 3AA, 3AB, 3AC, 3B, 4 and so on, there is currently no standard way of numbering new provisions that are to be inserted between sections 3 and 3A. The solution to the problem, in the absence of a systematic convention, is to use the numbers 3AAA, 3AAB, 3AAC and so on. Such an approach merely postpones the further problems of numbering provisions that later may be inserted between sections 3A and 3AA and provisions that later may be inserted between sections 3AA and 3AB. In addition, users of the Act cannot infer the order in which provisions appear in the Act from the numbering of those provisions; the relative position of the provisions depends on the order in which they have been inserted.

The variation that has been adopted to avoid such a situation is to use "A" or "a" as a suffix for new provisions that are numbered by reference to the existing provision before which they are inserted. The other letters of the alphabet are used as suffixes for new provisions that are numbered by reference to the existing provision after which they are inserted.

Under the convention, then, provisions numbered "xB", "xC","xD" and so on are provisions that are inserted after provision "x" with numbers that at the time of insertion are equivalent to "x-plus-1", "x-plus-2", "x-plus-3" and so on. A provision numbered "xA" can be thought of as having at the time of insertion a number equivalent to "x-minus-1", subject to the next variation.

Use of "AB", "AC", etc., or "ab", "ac", and so on as suffixes

The second variation is a consequence of the first variation. It relates to the use of "AB", "AC" and so on, or "ab", "ac" and so on as numbering suffixes. These suffixes are used to indicate provisions that are inserted after a provision for which "A" or "a" is used for the suffix. The variation is necessary because the suffixes "B", "C", and so on, and "b", "c" and so on are reserved for provisions inserted elsewhere.

Under the convention, if the provisions of an Act are numbered as sections 1, 2, 3, 3B, 3BB, 3BC, 3BD, 3C, 4 and so on, new provisions that are to be inserted between sections 3 and 3B are numbered 3BA, 3BAB, 3BAC and so on. New provisions that are inserted between sections 3B and 3BB are numbered 3BBA, 3BBAB, 3BBAC and so on. Provisions that are inserted between sections 3BB and 3BC are numbered 3BBB, 3BBC and so on. Provisions that are inserted between sections 3BD and 3C are numbered 3BE, 3BF, 3BG and so on.

The numbering is systematic and does not depend on the order in which insertions are made.

Advantages and disadvantages

The systematic nature of the numbering convention is a major advantage for drafters and, it is suggested, for users of the taxation Acts.

A minor disadvantage is the extra number of letters in some suffixes that result from the second variation. Drafters consider that this result does not outweigh the advantages of the approach.

A possible disadvantage of the convention is that users of taxation Acts may be confused by the first variation because they will not know whether or not there is a provision between, say, paragraphs (a) and (ab). The purpose of this item is to inform users of the convention that produces such a result and of the justification for the convention.

Users who do not read this item are most likely to be using a commercial publisher's annotated version of the taxation Act, as consolidated by the publisher. Such a version will include the history of the provision. A user will be able to determine from the history that no other provision was inserted.

Other users who do not read this item will be using the officially printed version of the amending Act in conjunction with the officially printed version of the principal Act as assented. The text of the amending provision will inform those users of the relationship between the inserted provision and the existing provision.