Legislation Bill

Part 2 of the Legislation Bill is divided into three subparts—a bit like Gaul. Subpart 1 deals with requirements and responsibilities for publishing legislation. The Chief Parliamentary Counsel will be required under the bill to arrange for the publication of copies of every Act enacted after the commencement of the legislation, copies of all legislative instruments—which is the term that is used in the legislation broadly to describe delegated legislation—any reprints of Acts and legislative instruments, any reprints of regulations made before the commencement of the section, and, finally, reprints of imperial enactments and imperial subordinate legislation that remain in force as part of the laws of New Zealand.

The innovation that will be required by the bill is that not only is there to be a definitive written copy of the legislation, which is to be the responsibility for publication of the Parliamentary Counsel Office, but there will be an authoritative electronic version of legislation as well. Clause 6(2) requires that every Act must be published in electronic form after enactment, and clause 6(3) requires there to be a copy of every legislative instrument in electronic form. The rest of the clause carries on the scheme that I have begun to describe. Then there are provisions around availability, sale of physical copies, and availability of electronic versions. There are also provisions around the numbering of legislative instruments and notice of making legislative instruments, all of which are sensible machinery provisions that will assist with the accessibility questions that were referred to in the debate concerning Part 1.

One of the other things that the bill will enable when it is passed is a more logical way of accessing delegated legislation, and that is certainly something that I think people will welcome generally. At the moment the regulations are well accessible if they are actual regulations in the strict legal sense of the term, but there are a whole range of other types of delegated legislation that are much more difficult to access, and it is hoped, I think, that the provisions of the bill will make that sort of thing much easier to locate and read.

There is a sensible provision around the power to revoke or otherwise declare ineffective, or no longer effective, a legislative instrument. That is a power that the Governor-General will have on advice from the Attorney-General. The re-enactment of provisions around judicial notice of Acts, regulations, and legislative instruments, and confirmation of the official status of both electronic and written versions of legislation—all those are very sensible provisions, as I have said. Particularly in this age, where a whole new generation has become quite accustomed to locating, reading, and using material that is not in printed form at all any more—it is all simply online—this is a useful, probably overdue innovation. It is good that, a number of years after the Law Commission recommendations around these matters, we are finally moving to enact them.

Subpart 2 of Part 2 deals with reprints. There are some sensible provisions around empowering the Chief Parliamentary Counsel to make changes around gender-neutral language, and changes around updating references so that references, for example, to Her Majesty the Queen can be automatically changed to references to the Sovereign, in keeping with contemporary usage, and references are able to be changed automatically around the content of legislation and schedules. As I say, they are all measures that make a lot of sense and ought to make for much more efficient updating of our body of laws. They are ones that we commend.

Probably the most interesting part of Part 2, though, is the provisions around revision bills, which are contained in Subpart 3.

💬 Denis O’Rourke: Fascinating!

I know that my New Zealand First colleague is raring to speak on this particular issue. He is greatly excited by the notion of revision bills. But, seriously, the bill will require that the Attorney-General provide each new Parliament with a draft 3-yearly revision programme. The revision programme will be presented to the House as soon as practicable after it has been approved by the Government.

Basically, revision bills can do a number of things. They can revise the whole or part of one or more Acts and, for that purpose, combine or divide Acts or parts of Acts; they can adopt a title that is different from the title or titles of the Acts or parts of the Acts being revised; they can omit redundant and spent provisions, and renumber and arrange provisions from Acts being revised, or parts of Acts; they can make changes in language, format, and punctuation to achieve a clear, consistent, gender-neutral, and modern style of expression; they can include new or additional purpose provisions, outline or overview provisions, examples, diagrams, graphics, and flowcharts; they can include new or additional provisions alerting users of the revision to enactments that are not incorporated in the revision but are relevant to the subject matter of the revision; they can correct typographical, punctuation, and grammatical errors and other similar errors; they can make minor amendments to clarify Parliament’s intent, or reconcile inconsistencies between provisions; they can update monetary amounts, other than an amount specified for the purpose of jurisdiction or an offence penalty, with regard to movements in the CPI; they can omit forms and schedules and, instead, authorise the matters in those forms and schedules to be prescribed by or under regulations; they can make consequential amendments to enactments that are not incorporated, or are incorporated only in part in the revision; and they can include any necessary repeals, savings, and transitional provisions.

Then there are some safeguards that are built into the legislation around revision bills so that they are not able to be misused. There has to be a certification that a bill is, in fact, a revision bill. The certifiers are to be the president of the Law Commission, the Solicitor-General, a retired judge nominated by the Attorney-General, and the Chief Parliamentary Counsel.

This provision relating to revision bills really is an important part of the legislation in respect of the objects that I referred to in my earlier contribution. It will allow for mechanical updating in a sensible way that is not provided for at the moment. It is really a very important piece of the bill. It is a subpart that the Regulations Review Committee considered in some detail. We did recommend some amendments, which I am pleased to see are largely being adopted. One thing that is not dealt with in the bill but was dealt with in the Law Commission report is the necessity to come up with some new Standing Orders to facilitate the changes that will be made by Subpart 3 when revision bills become a reality. I am sure that the Attorney-General has given this careful consideration and is already working with the Office of the Clerk to ensure that these new Standing Orders are recommended to the Standing Orders Committee. They will be required. There was some suggestion that we ought to deal with these machinery Standing Order - type issues in the bill itself, but we, on advice, agreed with the position that that was really a matter for the House. It was for the procedure of the House itself, and it was something the Standing Orders Committee would need to come to in due course in order to operationalise. It will be, I think, a welcome move to see those provisions, in particular, and those new Standing Orders come into force, and to see the very commendable innovations that Part 2 will enact.

New Zealand First supports the Legislation Bill wholeheartedly. We think it is a very good piece of legislation. Indeed, we think it is high time that this country had it. I would like to begin by acknowledging the work of the Ministers involved, of the Regulations Review Committees past and present, and also, of course, of the officials who have been involved in producing this very good piece of legislation. For me, I think the improvements it will make to public access—what I call understandability, and what is called navigability in the regulatory impact statement—are the most important aspects of the bill. I can tell you that when I was admitted to the Bar in 1972 things were a lot more difficult for people then when they tried to navigate their way through legislation. I remember staggering into courtrooms with arms full of statutes or regulations, in case I had to refer to some obscure part of one of them and track my way through various amendments. So Phil Goff’s reference to dusty volumes was very real for me in those days. But, of course, things have much improved, and this particular bill is going to make things better still. I think accessibility and understandability, not just for judges and lawyers but particularly for the public, are what I particularly like about this piece of legislation.

It is very important legislation, dull though it may be to many people, because it does govern the drafting of legislation in this country. It also concerns some new definitions of roles for the Chief Parliamentary Counsel. Principally, it will be replacing the Statutes Drafting and Compilation Act 1920, which is an old and rather out-of-date piece of legislation, the Acts and Regulations Publication Act 1989, and the Regulations (Disallowance) Act 1989. More important still will be the programme for a 3-yearly review on a systematic basis of New Zealand legislation. I think that is extremely important as well. I do think also that the functions of the Chief Parliamentary Counsel in ensuring that legislation will be published in an electronic as well as a printed form are equally important, and that he will be able to issue official versions in an electronic as well as a printed form. That is also important.

I do, however, particularly want to refer to something that is stated in the regulatory impact statement, when giving an example of why it is important for people to be able to navigate their way through legislation. It says: “For example, the law on one topic can be scattered, with provisions sometimes hidden in unlikely statutes; and Acts are amended many times before they are replaced. This can lead to inconsistencies, with obsolete and redundant provisions remaining in force.” Those are exactly the sorts of problems that this bill addresses, and it is why New Zealand First is so happy to support the bill.

I do want to refer especially to clauses 31 and 33, because I think that these are most important parts of the bill as a whole. The most important part of all is clause 29(2), which sets out the purpose: “The purpose of revision is to re-enact, in an up-to-date and accessible form, the law previously contained in all or part of 1 or more Acts, but (except as authorised by this subpart) revision is not intended to change the effect of a law.” That is the crux of the whole thing, I believe. I also note that in clause 33A(1) it says: “A revision Bill, as introduced, must not contain any proposed change to the effect of the law unless the amendment is authorised by section 31.” So that is repeated there again. I note with some pleasure also the requirements for certification in clause 33, which, I think, are a very valuable safeguard.

However, if I were to express any concerns at all—and I must say that they are not great concerns—I would have to refer to clause 31, which does provide the revision powers. It refers particularly to some I think important items in clause 31(2), which states that “A revision Bill may—(a) revise the whole or part of 1 or more Acts, and for that purpose combine or divide Acts or parts of Acts:”. I do not think that is likely to cause any difficulty with regard to the requirement not to change the law. However, if you look at clause 31(2)(f) it does state that it is possible to “include new or additional purpose provisions, outline or overview provisions, examples, diagrams …” and so on. So, actually, that does make it possible for some change in the substance of the law to be introduced. However, with the certification provisions, I think the risk of that is minor. The greatest risks—if there are any, of course—are in clauses 31(2)(i) and (j). Clause 31(2)(i) says that it is possible to “make minor amendments to clarify Parliament’s intent”. The problem is, of course, that we will never really know what the word “minor” means, and “to clarify Parliament’s intent” can be a lot more difficult than the words as stated might on the surface mean. Clause 31(2)(j) refers to updating “any monetary amount” and so on—those sorts of things. So there is some scope for a change to the substance of the law to be introduced as part of a revision bill. However, I think care has been taken in the bill as a whole to make sure that that will not happen, especially the certification provisions. Indeed, clause 31(3) states quite explicitly that “A revision Bill must not change the effect of the law, except as authorised by subsection (2)(i) or (j).”, which are the very ones I referred to under which such a change is possible.

But I think the safeguards are quite sufficient, and New Zealand First, for that reason, is very satisfied with the bill as it stands. We believe that it will result in legislation being regularly updated, that it will be much more understandable, or navigable, as it says in the regulatory impact statement, and that certainly from the public’s point of view it will be much, much more accessible. For all of those reasons, New Zealand First will be very happy to support the bill as amended at this stage.

I was very keen to speak on this part of the Legislation Bill, because this is a particularly exciting part. In particular, it is actually Subpart 2, “Reprints”—not retreads, Megan Woods; it is reprints that I am talking about. The reason I am quite excited about this is the capacity for legislation to stay up to date with current drafting practice.

When I first arrived in Parliament a few years ago I had completed my law degree at Canterbury University. I actually enrolled for a particular component of my degree, and it was a course called Legislation. My university lecturer was one John Burrows, who went on to become, of course, an esteemed professor at our university, and then on to his most recent role at the Law Commission. Because of his influence, I believed that working in the Parliamentary Counsel Office was something that anyone with an interest in the law, a passion for the law, would be absolutely interested in and fascinated by, because he made the Parliamentary Counsel Office and the work of parliamentary counsel sound so fascinating and so important.

When I arrived here I did not find that colleagues were quite of the same understanding of the fascination and the passion for the work of parliamentary counsel. But having served for three terms on a range of select committees I actually did realise that parliamentary counsel were able to bring to bear a consistency in terms of the language that they used and the method for prescribing the law in a way that made sense right across a range of different laws. And they were all able to do that. We had some incredible parliamentary counsel officers, from the top down, at select committees, but right across the board there was this absolute commitment to what is now described in this legislation as current drafting practice.

There would be some challenges faced when legislation came before a select committee and it did not meet that test of current drafting practice. The one I recall the most was actually a very early bill that was referred to the Justice and Law Reform Committee, as it was called in those days, and that was the Companies Bill. It was a brand new piece of legislation that had been the subject of a Law Commission report. The Law Commission had, in fact, drafted a bill, but the bill did not meet the Parliamentary Counsel Office’s current drafting practice, to adopt the modern phraseology. As a result, the Ministry of Justice issued drafting instructions to the Parliamentary Counsel Office and completely redrafted the legislation.

I will never forget sitting at that select committee listening to submission after submission after submission, all of them beginning with their particular theory as to why the Law Commission draft was different from the Ministry of Justice’s draft. There was theory after theory after theory as to why a particular phrase was used and why a particular clause was drafted in a particular way, and so the debate at the select committee came about as a debate around the two different drafting styles and the different approaches that they represented, rather than a discussion about what our company law ought to look like. I have to admit, and I think that colleagues on both sides of the House felt exactly the same way, how difficult this made our job as a select committee. It really led me to the very strong view back in those early days that the Law Commission should, in fact, have the advantage of a direct delegation of someone from parliamentary counsel to the Law Commission when it was drafting bills. Then we would get the current drafting practice merged into the Law Commission’s work, so that when it returned a bill to the Minister, the Minister would, with confidence, be able to introduce that bill to the House. So I am very pleased to see an entire subpart of Part 2 devoted to this whole question of current drafting practice.

One of the frustrations that I have experienced over the many years that I have been here is when legislation was drafted in a format that is no longer representative of current drafting practice and an amendment has to be made, and the number of times that parliamentary counsel have to go through the existing legislation in order to, essentially, upgrade it so that it is fit for purpose and to accept an amendment that Parliament is dealing with several years later. I believe that that frustration can be dealt with as a result of this subpart, which is why I am very, very pleased to see it in the form that it is in.

Of course, there are simple editorial changes that can be dealt with at the time of a reprint, which actually make incredibly good sense. We can, for example, see language changed to gender-neutral language so that we can refer to “he or she” instead of the word “he”. I mean, I remember all of those laws that existed for many, many years that only ever referred to “he”. You know, I felt as a woman that these things never quite—

💬 Andrew Little: Excluded—you felt excluded.

I felt excluded. That is exactly the word I was looking for. Thank you, Mr Little.

💬 Charles Chauvel: They didn’t apply to you.

But sometimes I felt that they ought to apply to me. I felt definitely excluded. But now the words “he or she” can simply be replaced for the word “he”, and that enables the law to be updated in a sensible way. The word “chairman” may be changed to “chairperson”. I remember—this is going to show how long I have been here—the Rt Hon Sir Robert Muldoon debating in the House once, and he actually got a bit upset that somebody had been referring to the Chair. He got up and gave a speech about how unfortunate it was that the previous speaker was able to address only an inanimate object that the Chairman was sitting on. He really was not quite up to date himself.

The words “Her Majesty the Queen” may be changed to “the Sovereign”. I actually think the fact that we are signalling this does suggest that, you know, we are getting ready for the inevitable there. I think the same thing happens when you refer to things like Queen’s Counsel and it becomes King’s Counsel over time, and vice versa. We have to make sure that our legislation is able to stay up to date in that regard.

Then there are some simple changes that just reflect some sensible changes to the way we use language. Sometimes there are simple spelling errors, errors in numbering and cross-referencing, and any other errors of a similar nature. All of these can be tidied up in a very straightforward manner, and that is something that I think makes really good sense. So I believe that this is a helpful part of this legislation—this subpart, in particular, I think—to embed current drafting practice, because, of course, the language always speaks to the present moment. The definition of “current drafting practice” in clause 23 is that it “means the legislative drafting practice for the time being used by the PCO”. That means that whatever the drafting practice of the day is, that is the definition that will apply. That will enable our laws to remain of a particular standard. That means that when one looks at a particular piece of legislation and at another piece of legislation, the differences will not be there. They will, in fact, be drafted in the same way and will meet the same tests, and that will ensure that people have a common understanding of what they mean.

So, again, I think this is an excellent bill, and I am pleased to see this particular part. I know that people have sort of taken my comments as being somewhat facetious, but having had the experience of sitting on a variety of select committees and seeing the incredibly hard work that our parliamentary counsel bring to the task, I believe that these changes will assist them in the work that they do and, obviously in that regard, assist the work of this House.

It is a pleasure to take a call on the Legislation Bill. Some of the comments from my colleagues and others in the Chamber earlier might have suggested that this legislation is tedious or boring, but this is actually absolutely fundamental to the operation of the House. If there is one thing that this House stands for and that it is measured by, it is the lawmaking that it does and the legislation that it produces. Therefore, to make good the record of the laws that we make and to ensure that the public and the voters—the citizens who are subject to the laws that are the product of this House—have access, it is vital that those laws be properly accessible and understandable. So this legislation goes some way to ensure that that happens.

What I wish to address my comments to is that issue of accessibility. I know, hearing some of the earlier comments from other speakers, as I say, that some people think that this is more exciting for lawyers than it is for others. I have to say that yesterday morning, like, no doubt, many others, I watched the leap—the death-defying leap—of Felix Baumgartner from 39,000 feet on the edge of the stratosphere, and that was exciting. But when we get to talk about our role as lawmakers, that goes beyond excitement. That is enjoyable and it is essential and it is uplifting, and it is a better thing than watching somebody jump 39,000 feet. When we talk about the accessibility of the law, clause 7 of the bill requires that the places where the printed legislation can be purchased be designated, so that there are known places where the law can be purchased. But the good thing is that the places where printed legislation can be purchased are not just confined to designated places; it can be purchased from other places as well. That is a good piece of flexibility in a good piece of law. Clause 8 requires the price of printed legislation to be reasonable, and so it should be. That is another question of accessibility, and, if I can refer to the debate in this House earlier, hopefully the CPI measures can be properly adjusted to ensure that the price of printed legislation is not artificially inflated or added to and that it remains accessible.

I think that what is most important in this day and age, in the 21st century and the age of the internet, is free access to legislation on the internet. We already have the legislation.govt.nz website, which is a fantastic resource wherever you are, and no doubt that will continue to be a place where the legislation is available and provided for, as the legislation says, for free. I think the question about accessibility through the internet is going to be vital, and we need to ensure that that portal, that means of access to the legislation, is as widely available to as many citizens as possible. May I suggest, without a hint of facetiousness, that maybe the IT department for Work and Income could be contracted on a special project to assist in that to ensure that the widest possible access is given to legislation available through that portal. That will satisfy the demands and the needs of clause 9 of the bill, and that will be very important in that central task of making the laws that we make accessible. It is grouped together, as we know, on the present internet site. When you enter your search, it provides all the available legislation—delegated legislation as well—that is relevant to the topic, and this new legislation will ensure that that is mandated by statute.

The provisions in this particular part go on, as my colleague Charles Chauvel talked about, to the 3-yearly review of legislation. It is now a standard procedure in any organisation, private or public, to ensure that the outputs and the services that are provided are given a regular review to ensure that they are up to date, meet the need, and are fit for purpose.

I do notice in clause 33 that those who are empowered to give certification to legislation that is reviewed and given revision—so that there is editorial change without changing the meaning of the law—are confined to the president of the Law Commission, the Solicitor-General, and a retired High Court judge appointed by the Attorney-General. That is a sensible provision, so that this House does not get bogged down in having to utilise its very expensive processes to make what are often purely administrative or editorial changes to make the law current and alive and relevant for today. Typographical errors need to be able to be dealt with without taking unnecessarily the time of this House. Making the changes that tidy up the law and modernise the language without changing the meaning is a very important task, and in terms of those who are tasked with it and those who have the job of certifying that the task is done without the changing the meaning of the law, I would note that it does require some of the best legal minds we have. Indeed, the provisions in clause 33, with the designated positions that are provided for, will, I am confident, ensure that that will happen.

On this part of the bill, we are very keen to support it and see a 92-year-old piece of legislation transformed and modernised so that we can get on and ensure that our legislation, the work we do, continues to be made relevant and, most important, made accessible to the citizens who are touched by it. Thank you.

The question was put that the following amendment in the name of the Hon Christopher Finlayson to the proposed amendment set out on Supplementary Order Paper 127 in his name to insert new clause 32A be agreed to:

to omit new clause 32A.

Amendment to the amendment agreed to.

The question was put that the amendments as amended set out on Supplementary Order Paper 127 in the name of the Hon Christopher Finlayson to Part 2 be agreed to.

Amendments as amended agreed to.

Part 2 as amended agreed to.

Progress to be reported presently.

House resumed.

The Chairperson reported the Taxation (Annual Rates, Returns Filing, and Remedial Matters) Bill with amendment, progress on the Legislation Bill, no progress on the Airports (Cost Recovery for Processing of International Travellers) Bill, and no progress on the International Finance Agreements Amendment Bill.

Report adopted.

The House adjourned at 9.56 p.m.