Legislation Bill

I move, That the Legislation Bill be now read a third time. This is a very important piece of legislation. It is based on the Law Commission’s recommendations in its 2008 report Presentation of New Zealand Statute Law and its 2009 report Review of the Statutes Drafting and Compilation Act 1920. The Law Commission noted in its foreword to the 2008 report that the New Zealand statute book is perhaps the most important part of our legal infrastructure, so it goes without saying that legislation must be accessible to all New Zealanders. It needs to be readily available, easy to navigate, clearly written, and kept up to date.

The Legislation Bill aims to improve the presentation and accessibility of our statute law so that people will find more easily the law that applies to them. The bill updates and brings together the law on drafting, printing, publication, and disallowance all into one statute. Currently, to find the relevant rules, folk need to work their way through several statutes—for example, the Statutes Drafting and Compilation Act 1920, the Acts and Regulations Publication Act 1989, and the Regulations (Disallowance) Act of 1989. The bill carries forward the existing regulations disallowance regime to allow Parliament to continue to oversee the use by the executive of delegated lawmaking powers. Very important is that it defines more clearly the nature of the subordinate legislation that will be the subject of the disallowance regime—and I can see you are riveted, Mr Deputy Speaker. This has not always been clear, because some delegated legislation has been excluded from the disallowance regime on the basis of its form, rather than its effect. The bill defines a disallowable instrument to include an instrument that has significant legislative effect—that is, it affects the rights and obligations of the public. This has the effect of broadening the scope of the Regulations Review Committee’s jurisdiction and strengthens parliamentary scrutiny of regulations and regulation-making powers.

The bill also does a number of other things. Some of our law that deals with the technical or operation aspects of a policy is set out in documents that are incorporated by reference into our delegated legislation. The material may have been developed by a specialist Government agency or by a private or an overseas organisation, and it may be impractical to include this technical, lengthy material in delegated legislation. So the practice has been to include provisions in individual statutes, to enable material to be incorporated by reference in instruments made under these statutes. Since 2003 standard provisions set out in the Legislation Advisory Committee guidelines containing important public consultation and access requirements have been used. The bill includes these as generally applicable provisions so that they will not need to be duplicated in every new bill. This will ensure greater clarity and consistency in how this material is to be incorporated into our law.

The Parliamentary Counsel Office’s governance arrangements and operations are also being modernised under the bill to reflect how the office operates today and—very important—to ensure its continuing independence. That office ensures that bills and regulations are properly drafted, and I believe I speak for all members when I say it does a fine job on behalf of all of us. Its printing and publication functions enable legislation to be publicly available, easily located, and expressed in clear language. Some important new functions are being added by the bill, and these include providing official electronic as well as paper versions of Acts and legislative instruments, carrying out a 3-yearly statute revision programme to improve the presentation of our statutes, and advising departments and agencies on the drafting of instruments that are not drafted by the Parliamentary Counsel Office, such as rules, codes, and standards.

In 2009 the Law Commission identified that there are over 1,100 statutes in force. Some of these statutes are old and are expressed in language that can be described only as archaic. Many have been amended over the years in a piecemeal way, and this has resulted in sometimes unwieldy and incoherent legislation. The statute revision programme reforms in the bill will enable amendments to be incorporated with principal Acts, outdated language to be converted into the Parliamentary Counsel Office plain-language drafting style, and obsolete and expired provisions to be removed. Re-enacting legislation in a more accessible form will help individuals and businesses more easily to understand the rules that apply, and this will reduce regulatory cost. These changes and the enhanced reprinting powers in the bill will also assist in reducing the need for, and the cost of, technical, remedial legislation.

Can I conclude by thanking the Law Commission for its work and the Regulations Review Committee for recommending some valuable amendments, which, I think, have the effect of further clarifying and improving this bill. I commend the bill to the House.

Mr Deputy Speaker, in order to continue to rivet you I would like to make just a few additional comments to those that have been made by the speaker who has just resumed his seat, the Attorney-General. I would like to begin by acknowledging his acknowledgment of the work done by the Regulations Review Committee in the previous term of Parliament. The recommendations, I think, on the basis of advice from the officials who appeared before the committee, did indeed add value to the bill.

I think in particular about the recommendations concerning Part 4, which deals with the constitution of the Parliamentary Counsel Office. The need to modernise the statute under which parliamentary counsel operate had, I think, become pressing. At the moment, the legislation dates back to the 1920s. It was very much a case of it being timely to update that legislation in order to ensure not only that there were appropriate governance and management structures applicable to the office but also fairly rudimentary issues like legal protection for members of the office when they are performing their official duties within powers and in good faith. Just as every other person in the Public Service has that protection, now it will be going forward that the members of the Parliamentary Counsel Office team have that protection as well, and that is as it should be. In fact, it is remarkable that it has taken Parliament nearly 100 years to confer that protection. It is also appropriate to have clarified the client status of those being advised or assisted by members of the office, so as to be very clear that legal professional privilege and all the other requirements of professional conduct should apply to members of the office. They no doubt exhibit those attributes now, but the law will make it clear that the duties exist.

I want to pay tribute to the Acting Chief Parliamentary Counsel, Mr Moore. He has had to step into the breach in the absence of the Chief Parliamentary Counsel on an extended basis on a secondment in the United Kingdom. I think Mr Moore has done a terrific job of stepping into the gap. Certainly, he has been of great assistance to the Regulations Review Committee in the discharge of our duties to this House. Although I appreciate that sometimes select committee chairs and members will receive slightly different advice from his office on the one hand and the Regulations Review Committee on the other, we are certainly striving to resolve those differences where we can, and where we cannot, well, the reality is that that means that the committees have contestable advice on what drafting best practice is. I think that is a good thing for the committees. They are in a position to make the sorts of judgments that they should make when they do receive advice that is contestable.

The Minister spoke about the changes that will be made by the bill in respect of the Regulations Review Committee’s jurisdiction. They are sensible changes. In terms of the definition of the types of instruments that the committee will be able to scrutinise on behalf of the House, the changes are sensible changes. They broaden the ability of the committee to perform the House’s scrutiny function on its behalf, and I certainly welcome them.

The legislation also updates the law relating to the publishing, reprinting, and revising of legislation. I think the most significant innovation that I would want to mention is the conferral of official status on electronic versions of Acts and other statutory instruments. That is an overdue move. It is also one to be welcomed. The status of searchable legislation on the internet, on the legislation website, is now clarified, and it will be appropriate to use that legislation in that version, and any prints that are made of it, as an official version of the legislation. That makes a lot of sense, given the way that we deal with legislation these days.

Finally, the issue of systematic revision is to be welcomed. I know that any member who has gone out into the lobbies and tried to look up what the law is on a particular issue knows that sometimes they have got to go to a number of different Acts of Parliament, a number of different regulations. Over time, the revision process will mean that we have a much more logical and coherent statute book, and it is very much a reform to be welcomed.

I want to conclude by thanking my colleagues on the Regulations Review Committee in the last term for the work they did on this bill. I also want to acknowledge not only, as I said earlier, the Chief Parliamentary Counsel but the other members of his team and the former Chief Parliamentary Counsel who appeared before the committee to give their views on this legislation. It is good and timely legislation. Perhaps the one regret that we might express is that it has taken so long, first, to be introduced, and, secondly, to wend its way through the House. But, none the less, it is finally happening, it is to be welcomed, and I certainly commend it to the House.

I like this piece of legislation because it brings simplicity to, and reduces unnecessary complexity of, cumbersome processes that often come out of this House. I think it was the, at the time, president of the European Commission in Europe, Jacque Delors from France, who said that Governments should do less, but what they do they should do better. And as far as this Legislation Bill is concerned, I think very much this goes a long way to helping bring the legislation that this Parliament creates closer to the people of New Zealand.

The Legislation Bill intends to “modernise and improve the law regarding the publication, availability, reprinting, revision, and official versions of legislation,”. But all MPs in this House, at one time or another, would have constituents come to them and say: “Well, I hear in the media what you’ve done. I was able to have a look and see what the legislation says.”, but it does not make any sense to them. So I think it is important that we replace the Statutes Drafting and Compilation Act of 1920. I am not sure whether it has had revision in that period of time, but 1920 is quite some time ago, and the world has certainly moved on. In particular, I recognise that the changes made in this legislation will have a big impact. “The establishment of a three-yearly programme of systematic revision of Acts”—well, that is quite important. Indeed, if this had been in place earlier, then perhaps one of the Acts it is replacing, like the Act drafted in 1920, would have been updated previously and we would not need to do what we are doing today.

I want to say that a couple of things are very important to all New Zealanders. The clear accessibility of law, I think, is a fundamental part of the rule of law, and it is because people need to understand the legislation that we pass here in this House. For this to happen, Parliament needs to focus and do its job properly. Waffly and imprecise wording is of absolutely no use to anybody. The Law Commission has rightly said that our statute law as a whole currently lacks cohesion, is untidy, and can be difficult to understand. I want to recognise that the Parliamentary Counsel Office has gone to great lengths to try to work within this, but it is important that we use clear English in our bills so that they can be more easily understood.

From research, I want to give an example of how you can get it so very wrong. One real shocker from the United Kingdom is contained in the Banking Act 1979 Appeals Procedure (England and Wales) Regulations 1979. The Act of Parliament says: “Any reference in these regulations to a regulation is a reference to a regulation contained in these regulations.” Well, actually, that is quite precise in so far as how the court would interpret it, but there will be people at home watching on their TV or listening on their radio to this who will be concerned greatly at what that means. So is it not wonderful that we do not have to grapple with that in New Zealand legislation? This bill will ensure that, in so far as Parliament doing its job properly and appropriately is concerned, never will we have something that says: “Any reference in these regulations to a regulation is a reference to a regulation contained in these regulations.” I might just leave it there. I commend this bill to the House.

The Green Party is happy to support the Legislation Bill. It is about two issues: housekeeping and power. It is about housekeeping because the job of this Parliament is to make sure that the output is comprehensible, modernised, and regularly reviewed, and it will do that. I would just like to acknowledge Charles Chauvel and the Regulations Review Committee for their work, because I think it is very important. That housekeeping needs to be done well, like any housekeeping. It may seem to outsiders to be obscure, but when you live in the house you know that it needs to be done well, for the benefit of others.

But it is also about power. We would argue that accessible language for the law is really another language altogether. We need to make sure that legalese, which could be called a language of its own, is comprehensible to people. Legalese is something that lawyers will understand, and that many politicians with more experience than me can use, but many citizens find it utterly incomprehensible and totally alienating. A really good example of that is that wonderful Australian movie The Castle, where they go to court over the airport versus the family. In that movie the man in court, fighting for his family home, does not know, after he has heard the judgment, whether they have won or lost. He thinks that they have won when they have lost, and then later on he thinks that they have lost when they have won. That is a really good example of how many people feel when they are before the courts. It is really a matter of some shame that the citizens of a country cannot understand the law. That, of course, was Australia, but I do not think that we can deny that this country also has obscure laws. Having spent some time in the Environment Court as a lay advocate, I have seen the confusion on many faces, including my own, if I am going to be honest, because the law is not designed for clarity. It is designed to achieve certain purposes, and clarity has not always been at the front.

Plain English is one thing. Imagine if the first language is not English, imagine if the person before the court is from the Pacific, which happens a lot in Aotearoa New Zealand, and imagine if the first language is from another part of the world. Not only do you have a language barrier but also you have two language barriers: you have legalese, that special language that disempowers many people, and then you have the barrier of English. So it is not only about plain English reporting. We would like to see legislation translated and made available to all cultures and languages in our country, which is going to be a big task, given the diversity of our culture.

It is really, really important that the law belongs to the people. The law does not just belong to the lawyers, and it does not belong to MPs. It belongs to the people, and if people are going to use this thing we create in this House, they have to be able to understand it.

So we support this bill. We think that the clarifications are important. We also think that the progress in terms of electronic access is really important, because many people now rely on electronics for all of their communication. Therefore, to have actual copies of the law available electronically, as well as some of the commentary, would be really, really helpful. The consolidation of access is another part of the importance of the democracy. So this bill is really about, as I said, housekeeping and access to democracy. It takes us forward, and we are very happy to support it.

It is a pleasure to take a call on the Legislation Bill, and to acknowledge the last speaker, Catherine Delahunty. I just say that there is a tension between the simplest language possible being used in legislation, and, of course, the other matter, which is precision. There has been a trade-off, made over some years now, between the length of legislation, to ensure that as simple a language as possible is used, but also sometimes at the risk of imprecision. One has only to look at the number of amending bills that come back to fix up what were well-intended drafting initiatives that have to be clarified subsequently, and, indeed, at the comments of the judges in the profession themselves, who have to make sense of our attempts at trying to make the legislation more accessible.

But there is no question that the objective of trying to make legislation more accessible, and streamlining the process for it, in terms of publication and correction, is welcome and, some might say, overdue. To the extent that this bill means that the periodic review of legislation means that those clerical errors that are identified and can be fixed up without changing the substance, meaning, or intention of the bill can be done, that is good. But there is also the publication of legislation. Catherine Delahunty is absolutely correct in that there is no point in claiming as a principle of law in the court that ignorance of the law is no excuse, on the one hand, but actually making law inaccessible, at the very least, through the means of publication, on the other hand. There is a conflict between those two objectives. The fact that this bill promotes and encourages greater accessibility through online and electronic means is a most welcome development.

I relayed in an earlier speech on this bill the experience I had recently of a senior member of the Bar—a QC, in fact—who had come along to a court hearing armed with large, voluminous texts, carrying a great weight on this rather frail frame of a person. How easy it would have been, had he understood and managed electronic access to the legislation. That would have made his day, I am sure, a lot easier.

💬 Hon Tau Henare: There’s no need to talk about Trevor like that.

We are generous on this side of the House, and no matter who a QC represents, whether it is defendants or—

💬 Hon Trevor Mallard: $14,000-a-day QCs?

—$14,000-a-day QCs, even they—some of them—struggle with electronic access to legislation, and this will make it a lot easier.

But even when we are dealing with legislation that is somewhat brief and runs to only a few pages—and let me randomly select an example. The Defamation Act, for example, is a reasonably brief piece of legislation, but it is amazing how many lawyers struggle to court with it—

💬 Hon Tau Henare: This is about saving face, is it?

Our faces are well saved, Mr Henare. My recent experiences of engagements with QCs have left me feeling lighter for the experience, happier, and most contented with my contributions politically over the last 12 months. I am appreciative of the support I have had from all sections of the House, not only from my colleagues on this side, but also from one or two on the other side as well. It all goes to illustrate that legislation, if it is to be made sense of in a modern, democratic State, as indeed we are, needs to be accessible through all means. This bill is well intentioned and well drafted, and for that reason we support it without exception.

The Legislation Bill contributes towards regulatory reform by modernising and improving the law relating to the publication, availability, reprinting, revision, and official versions of legislation in a single piece of legislation. The bill is the Government’s response to two Law Commission reports that said New Zealand’s statute law is generally incoherent, untidy, and difficult to understand. The bill will modernise and improve our statute book by, among other things, preserving the independence of the Parliamentary Counsel Office and enabling it to use clear English in bills.

New Zealand’s legislation needs to remain effective, clear, and accessible to the public. Better and less regulation is essential to boosting New Zealand’s productivity, growth, competitiveness, and living standards. So I commend the bill to the House. Thank you.

New Zealand First is happy to support the Legislation Bill. We think it improves the accessibility and understanding of legislation for the New Zealand public, and it is high time that there is modernisation of legislation governing the drafting of legislation and concerning the functions of the Chief Parliamentary Counsel in the ways recommended by the Law Commission. The most important part, I think, provides for a 3-year programme of systematic revision of legislation. That is a very welcome move and something that probably should have been done a long time ago. The bill would also alter the functions of the Chief Parliamentary Counsel. In particular, the Chief Parliamentary Counsel will be required to publish legislation in an electronic as well as a printed form, which, of course, they now do anyway, and to issue official versions of legislation in an electronic and a printed form. As a previous speaker said, so many people these days rely entirely on that way of accessing our legislation, and other things, of course, as well, so this will be very welcome to allow people—and I think it is the majority—to find their way through updated legislation through electronic means. This just brings the situation up to date and is most appropriate.

But revision does not include substantive changes to the law. Clause 29(2) says: “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.” I think that is a very important issue, and I think it has been well addressed in the bill. The revision programme in clause 31(2) is the crux of the bill, and it includes such things as the revision of the whole or one part of one or more Acts, with the ability to combine or divide them as may be appropriate; the omission of redundant and spent provisions; provision for new or additional purpose provisions; minor amendments to clarify Parliament’s intent; and the updating of monetary amounts and that kind of thing. Clause 31(3), however, states that “A revision Bill must not change the effect of the law,”. Therefore, great care will still be needed in practice to preserve the integrity of the Acts that are being dealt with under this legislation. That is something I think the House will need to be careful of when it looks at revision bills as they come through in future. In other words, we are still going to have to be vigilant.

Clause 34(2) repeats the requirements not to change the effect of any statute, but that is qualified by clause 31(3), which says: “A revision Bill must not change the effect of the law, except as authorised by subsection (2)(i)”—which is the one I referred to relating to minor amendments only—“or (j).”, which is the one I also referred to relating to simply updating monetary amounts and that kind of thing. Clause 33A, in relation to minor policy changes to revision bills, also admits some capacity to make substantive changes in revision bills, but clause 33A(1) 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.” And it goes on to say in subclause (2): “nothing in this Act affects the powers of the House of Representatives to amend a revision Bill for any purpose and to pass it with amendment.” That refers back to the vigilance that I said we still have to maintain because of that provision. However, having said that, it is still—and it must always be—open to the House to amend bills however it thinks fit at any time.

Concerning the functions of the Parliamentary Counsel Office, I welcome the new subclause (1)(h) of clause 58, which expressly refers to the rights of the public. It says in that subclause that one of the functions of the Parliamentary Counsel Office is “to examine all local Bills and private Bills, and to examine the Members’ Bills that the Attorney-General directs be examined, and to report to the Attorney-General on the effect of Bills examined, in particular on whether they affect the rights of the Crown or the public, and on their relationship to other legislation:”. It is good to see that there will be some objective reporting on effects on the rights of the public, and I think that is a good safeguard as far as this bill is concerned. I think that is a very good provision, which New Zealand First supports wholeheartedly.

With regard to the appointment of the Chief Parliamentary Counsel, we completely agree with the need for that person to be legally qualified in New Zealand or in a similar jurisdiction, and with the same provision for other parliamentary counsel as well. We think this is a very good bill. The amendments that have been made are supported as well. We are very happy to see it go through, and we will be voting in favour of it.

I rise in support of the third reading of the Legislation Bill. I would like to make a short contribution. The Legislation Bill, as the commentary on the bill states, “is intended to modernise and improve the law regarding the publication, availability, reprinting, revision, and official versions of legislation, and bring it together into one piece of legislation.” I support the idea and the efforts of the Parliamentary Counsel Office and Law Commission to tidy the statute book and make it easier to understand, because much of the old legislation is very wordy and hard to understand. The Parliamentary Counsel Office aims to use clearer English in bills.

As someone who is actually a speaker of English as a second language and who learnt English as a second language, I welcome this bill. Often when migrants want to know about laws and legislation they find the words very, very difficult to understand. To them it is gobbledegook. Even I have to look up dictionaries and documents to try to understand some of the language.

Clear and accessible law is a fundamental part of the rule of law. People need to be able to understand legislation. The courts need to be able to interpret legislation for this to happen. We need to do our job properly. Hard-to-understand, imprecise wording is of no use to anybody. I commend this bill.

Bill read a third time.

The House adjourned at 12.08 p.m. (Thursday)