Module 2: Section 3
What forms may transitional provisions take?
In drafting transitional provisions that apply the new law to past cases, two alternative approaches are possible.
- Focus upon the past cases expressly
- identify the precise past cases to be covered by the new legislation.
- use expressions that indicate that they came into existence “before the commencement of this Act” (or equivalent terms).
- indicate how the new legislation is to apply to them.
- 1. Family Provisions Act (replacing a Married Women’s Maintenance Act)
- 71. (1) A District Court has jurisdiction to enforce under this Part an order providing for the making of periodical payments that was made by a magistrate’s court before the commencement of this Act.
- 2. Family Law Act (providing for greater recognition of foreign divorces)
- 62. (1) Either party to a marriage may apply to the court in the prescribed manner for financial relief under this Part if:
- (a) the marriage was dissolved by means of judicial or other proceedings in a foreign jurisdiction before the commencement of this Act; and
- (b) the dissolution is entitled to be recognised as valid under Part I
- Apply the new law to a current class
There is nothing retrospective in a law that, at the time the new law operates:
- regulates activities that are of a continuing nature or that have continuing legal effect, even though they started before the new law came into effect;
- applies to a class of persons or objects that have a specified status, characteristics or propensities, even though those were acquired before the new law came into effect.
What the legislation is regulating, in these cases, is a present state of affairs and not a past one. The circumstances that activate the new legal rules are not prior events, but the presence of current ones.
- 1. A Bill that introduces a new requirement that dealers in second-hand goods are to hold a licence applies to those already in the business, as well as to those who start one after the Bill comes into force.
- 2. A Bill that imposes tax burdens in the coming year upon all married persons is not retrospective in relation to those who entered marriage before the legislation came into force.
In both cases, the statute is providing prospective rules for persons who currently fulfil prescribed conditions or hold a prescribed status. It does not change the law as to the acquisition, or the past consequences, of those conditions or that status.
In drafting the new legislation, you may be able to avoid providing explicit transitional rules by making substantive provisions apply to cases described in such a way as to cover past and future cases as a single category. The legislation will then apply to all cases that currently satisfy the description regardless of when that came about. The Act does not operate retrospectively since it deals with a state of affairs that is current at the time it is applied, even if, in some cases, the circumstances leading up to it occurred in the past.
A Bill is to include new rules about property rights in marriage; these are to apply retrospectively (to marriages already in being), as well as prospectively.
An express retrospective rule might begin:
A person who is a party to a marriage, whether contracted before or after the commencement of this Act . . .
But it may be possible to state this rule more simply:
A married person who . . . .
The second version describes a status that must exist when the rule is invoked; it does not matter whether that status was acquired before or after the Act came into force.
By using this device, you can cover retrospective and prospective cases together. It has the advantage of dealing with the matter as part of the substantive rules, instead of tucking the retrospective cases away in transitional provisions. It is, of course, unsuitable where the law applying to retrospective cases is to be different from that for prospective ones.
If this approach is chosen, avoid words that relate to taking some action to describe the state of affairs. That merely re-introduces the retrospective question: does the new law apply to the action if it took place before the law comes into force? An example from Driedger (Composition of Legislation, p. 116) illustrates the point.
If a person who is declared bankrupt applies for a licence, the Minister may require that person to furnish a bond.
This immediately raises the question whether the rule applies where declarations have been made before the Act came into force. The presumption against retrospectivity probably precludes that meaning.
This is avoided in the following:
If a bankrupt person applies for a licence, the Minister may require that person to furnish a bond.
The section applies regardless of whether a person became bankrupt in the past or becomes bankrupt in the future. To make it clear that only prospective application is intended, the following could be used:
The Minister may require a person who is declared bankrupt and applies for a licence to furnish a bond.
Coupling the two verbs in this way means that they both operate in the same way. As the section is clearly concerned only with future applications, it must also be limited to declarations made after the legislation comes into force. But if in doubt, add “after the commencement of this Act” after “a person who”.
Example 24 serves to remind us of two important considerations:
- if provisions are to apply prospectively only, you can produce that result by indicating that the rules require some future action to be taken:
- don’t resolve the problem of retrospectivity merely by using different tenses for verbs.
You may find it necessary to state some activity in a past tense to establish that it must have occurred before something that is expressed in the present tense. But that does not tell us whether that it relates to cases arising before the new statute comes into force.
If a person who has been declared bankrupt applies for a licence, the Minister may require that person to furnish a bond.
The difference in the tenses only indicates that the declaration must precede the application. It does not settle whether declarations made before the enactment came into force are included.