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Collaboration between the state and the LII community in improving access to legislation in a national jurisdiction: a New Zealand example
DAVID NOBLE[*]
Thomas Hobbes’ much quoted conclusion on the need for the promulgation as well as the passing of legislation: ‘For to the nature of Lawes belongeth a sufficient and clear Promulgation, such as may take away the excuse of Ignorance’[1] remains as apposite now as it was in 16th century England. In the 20th Century in New Zealand the then Chief Justice, Sir Richard Wild said much the same thing in a case concerning the future of the government-owned print service:
People must be told what Parliament is doing and must be able to read the letter of the law.[2]
In a seminal 1989 report, the New Zealand Law Commission emphasised their view of the constitutional significance of the promulgation of law within the jurisdiction:
Our purpose here is to stress again the central constitutional function of the Government in making the law... known to the public.[3]
It seems axiomatic that those who produce laws, and in particular legislation (as distinct from the growth of judge-made law through the development of the common law or civil law processes) bear an equivalent burden or duty to make those laws known to the subjects or citizens of that jurisdiction. Looking briefly at ancient history in this respect there is evidence of early promulgation in the form of the Code of King Hammurabi from the ancient kingdom of Babylonia (18th Century BCE). Partial copies of the code exist, carved into a 2.25 metre tall diorite stele column from Sippar and baked into clay tablets (which can be viewed in the Louvre Museum, Paris, France).[4] The Code consists of 282 laws, with scaled punishments, adjusting ‘an eye for an eye, a tooth for a tooth’ depending on social status. Interestingly however, nearly one-half of the Code deals with matters of contract law, establishing, for example, the wages to be paid to a driver of oxen, or a surgeon. Other provisions specify the necessary terms of a transaction and establish the liability of a builder for a house that collapses.
The Louvre records that over 30 copies, or partial copies of the Code have been found on separate clay tablets (or stela) at Susa and in the wider Mesopotamian region, indicating a clear understanding of the need for the State to disseminate the content of laws to the subjects of those laws. Interestingly for those charged now with promulgating legislation on behalf of parliaments and other legislators, differences in the texts between those stela shows that there were various versions of the Code.
By the 13th Century CE in England, dissemination of laws had moved on from stone pillars and clay tablets to something more portable – high quality calfskin made into vellum. This has more immediately obvious similarities to the printed paper legislation of more recent times, although clearly still from the pre-printing press era of mass production. It was this medium that was used for the original and the subsequently transcribed copies of the Magna Carta (1215). The Australian government is fortunate to hold, in the Parliament House in Canberra, a good example of the 1297 reissue by King Edward I, of the infamous bad King John’s Charter from 800 years ago.[5]
It is worth noting, in passing, that depictions of the King signing the charter (and its accompanying Charter of the Forests) are faulty as shown by the copy in the Australian parliament: the Royal Assent was evidenced by the attachment of the Great Seal rather than by a handwritten signature.[6] Promulgation (and drafting probably) depended a great deal on the Church since, to an extent, King John had no interest in ensuring that the rights of Barons and Freemen and the restrictions on his Royal Sheriffs, to which he had agreed, were widely known.[7] For this reason it seems likely that the so-called ‘Cathedral copies’ were transcribed by church scribes and despatched to the various dioceses of England so that the contents of the charter could be read out or at the very least made known more widely.
Finally, in this very brief and selective review, moving hemispheres and a further 600 years to New Zealand during the period of early European settlement (before the establishment of full self-governing assemblies or Parliaments in 1854) great reliance was still being placed initially on the Church and (later) the private sector to print, publish and promulgate laws.
William Colenso, originally from Penzance in Cornwall, by 1833 was working in the London firm of Richard Watts, printers to the Church Missionary Society (CMS). The CMS was seeking someone to set up and run a printing press in the mission settlement at Paihia in the Bay of Islands. Colenso was recruited and left England bound for Australia on the Prince Regent in June 1834. He finally arrived at Paihia on board the schooner Blackbird from Sydney on the 30 December 1834. Despite defective equipment supplied by the CMS Colenso was highly productive as a printer. Te Ara - The Encyclopedia of New Zealand records that, in addition to printing the first pamphlet printed in New Zealand (a 16 page translation into Maori of the Epistles of Paul to the Philippians and to the Ephesians on 17 February 1835) and the production of 5,000 copies of William Williams's 356 page Maori New Testament books, Colenso was also employed producing government publications:
In October 1835 the first tract produced in English was printed by order of the British Resident, James Busby, warning settlers about the imperialist ambitions of the French Baron Charles de Thierry. Over the following nine years other official notices and publications appeared, including the first New Zealand government Gazette on 30 December 1840. Colenso’s most memorable work of this sort was the printing of the Maori text of the Treaty of Waitangi on 17 February 1840. At the signing his cautious representations to Lieutenant Governor William Hobson that many Maori were unaware of the meaning of the treaty were brusquely set aside. His observations recorded at the time were published as ‘The authentic and genuine history of the signing of the Treaty of Waitangi (1890)’, the most reliable contemporary European account of the signing.[8]
The official Government Printing Office was not formally established until 1864, its purpose being to ensure the publication of legislation and Hansard (10 years after the parliament first met in Auckland). During the 19th and 20th Century Parliament and government did not stand still in terms of legislating for, and considering their role and duties in relation to, the provision of access to the legislation that they were rapidly introducing and passing. Similarly, considerable effort was put into producing compiled and consolidated versions of legislation, particularly in the early 20th Century. However, the resources and commitment to keep the statute book (let alone the subordinate legislation ‘book’) up-to-date were never sufficient in a printed paper-based environment. So, increasingly the late 20th and early 21st Century reports and legislation look more to developing technologies, the internet and electronic/digital sources to solve that problem.
The Parliamentary Counsel Office in 2007 was however, still supplying huge amounts of printed hard copy to the House of Representatives, holding a significant appropriation from Parliament each year for printing copies of primary and subordinate legislation and then making it available through designated bookshops across the country. Given the size of some of these individual statutes (at Royal Assent, the Income Tax Act 2007 was 2855 pages long) change was long overdue.
But there was a slight ‘local difficulty’[9] in this move from paper to web-based publishing and promulgation. The government no longer owned the intellectual property in the marked-up database of old and existing legislation having (inadvertently) sold it with the deregulation of government printing and the associated sale of the Government Printing Office (GPO).
In 1987 the GPO had revenues of just under $100 million with pre-tax profits of $14.5 million[10] and, as one commentator noted: ‘Its parliamentary publications kept citizens informed in great and sometimes crushing detail of their government's activities; its legislative publications guided citizens (or at least their lawyers) on their rights and duties.’[11] The consequences of the sale were noted at the time by some commentators, for example an article by Warren Berryman in the leading business newspaper in New Zealand was titled ‘Sovereignty for sale: the law to be privatised in Printing Office move.’[12]
Consequently, the move to web-based publishing and access to legislation was both lengthy and costly for New Zealand. In total it has taken 10 years and $30 million (against early predictions/estimates given in the early 2000s of 2 years and $5 million) to achieve the digital legislative drafting and web-publishing systems and environments that are currently provided in New Zealand. Since 2008 the government (through the medium of PCO’s legislation website) [13] has been making available in-force legislation (primary and secondary) and Bills in both internet and hard copy formats. And in 2014 the PCO finally completed the long process of checking and correcting the database that had been purchased from the commercial publishers and was able to declare the PDF output an official source of legislation.[14]
This is critical for a properly functioning democracy; to have a reliable, authoritative and official source of the laws which apply to its citizens and others. To have that body of legislation available free to all is also a significant improvement over the previous charged-for paper, based product which inevitably was always out-of-date given the ability to produce compiled copies of legislation sufficiently quickly.[15]
The declaration of ‘official’ status is also essential for the operation of ‘judicial notice’ in court proceedings under the law of evidence in New Zealand.[16]
And, it discharges Hobbes’ requirement for there to be a ‘sufficient and clear promulgation’ of the legislation passed by Parliament or made by the Executive.
Finally, in relation to the digital database output and its official status it should be noted that printed copies of assented-to legislation are required by the Standing Orders of the House of Representatives to be kept by the Clerk of the House and the Registrar of the High Court at Wellington. So, there will always be authoritative hard copies to refer to and reprint if necessary and the PCO itself continues to maintain a stock of hard copy printed legislation for reasons of security and longevity. However, the reality in terms of public access to legislation (including access by legal professionals and librarians) is that the official website output is fast replacing the official printed paper version as Figures 1 and 2 below indicate.
Figure 14 Source: Parliamentary Counsel Office, Wellington, New Zealand
Figure 15 Source: Parliamentary Counsel Office, Wellington, New Zealand
The PCO (as the State provider of free access to legislation) began its collaboration with the New Zealand Legal Information Institute (NZLII) for primarily practical reasons. First, NZLII already had a substantial body of both legislation and case law freely accessible via its website and the government website was designed in such a way to allow anyone to download content by ATOM feed so collaboration between two free-access providers made sense in a small jurisdiction where there are already three or four main commercial retailers of legislation and add-on services. Second, and rather more pragmatically, applicable government web standards required the PCO to publish documents in both PDF and HTML formats which the official legislation website conforms to. However, the PCO holding of older databases was only available in PDF or indeed hard copy formats which required OCR scanning prior to PDF production. The costs and time involved in converting these historic (but valuable) research collections into HTML format and then incorporating them into the NZL website databases did not represent value for money for the PCO given its appropriation and other priority functions.
However, the PCO was tasked with, and wanted to, improve access to legislation for New Zealanders, so again, collaboration with NZLII made sense in terms of publishing the PDF historic legislation content. Consequently the PCO, working with its free access partner (NZLII), is now making significant historical legislative documents freely available online. The latest results of this collaboration, Bills from 1949 to 2008, are now on the NZLII website in PDF format.[17] The volumes will be added to over time and will extend back to 1854 when complete. The collection includes Bills that became Acts as well as those that failed to make it to the statute book.
The Historical Bills Collection sits alongside the New Zealand Acts 1841–2007 As-Enacted Collection of historical Acts and the recently completed Statutory Regulations 1936–2007 as-made collection.[18]
As an example of cost-effective collaboration, the additions to the existing NZLII databases of the Regulations as-made and the Acts as-enacted collections together with the current project to produce a comprehensive collection of historic Bills will have cost the PCO less than $200,000 in scanning and processing costs. This is a fraction of the charges it had previously paid to commercial providers of the interim website offerings before the official legislation website went live.
In terms of the wider Pacific region the PCO has, since 2009, been providing a legislative drafting, training and mentoring function for Pacific Island nations with financial support from the New Zealand ministry of Foreign Affairs and Trade[19] (starting with those of the NZ Realm States, Cook Islands, Niue and Tokelau but since expanded to include work for Fiji’s re-establishment of Parliamentary democracy).
Access to legislation in the Pacific island states is often difficult, particularly in hard copy form which makes the regional LII – (The Pacific Islands Legal Information Institute (PacLII) a facility of the University of the South Pacific School of Law)[20] all the more important for the New Zealand legislative counsel when drafting amending legislation on instructions from jurisdictions in the Pacific.
In Australasia state legislation publishing institutions in the Australian jurisdictions have different and varied relationships with local free-access providers – but in New Zealand the PCO has committed to developing a collaborative relationship with NZLII (its free-access partner) and indeed encouraging other free-access providers, combiners and developers of the official output.
[*] Chief Parliamentary Counsel and Chief Executive of the Parliamentary Counsel Office, New Zealand. October 2007 May 2016. This article is professional, non-peer-reviewed expert commentary.
[1] Thomas Hobbes, Leviathan (Scholar P, 1969).
[2] VUWSA v Government Printer [1973] 2 NZLR 21.
[3] Law Commission, Legislation and its Interpretation (NZLC R11, 1989).
[4] Louvre Museum, The Code of Hammurabi (2016) Louvre <http://musee.louvre.fr/oal/code/indexEN.html> .
[5] Research Section, Department of the Senate, Magna Carta (Great Charter), 1297, Parliament House Canberra <http://www.magnacarta.senate.gov.au/> .
[6] John appears seated on a throne, holding a sword in his right hand and a sceptre in his left, and with the legend ‘+ IOHANNES DEI GRACIA REX ANGLIE DOMINVS HIBERNIE’ (John, by the grace of God King of England and Lord of Ireland). On the reverse is an equestrian portrait of John, riding with his visor open. The legend on this side gives the king’s other titles, ‘+ IOHANNES DUX NORMANNIE ET AQVITANNIE COMES ANDEGAVIE’ (John, Duke of Normandy and Aquitaine, Count of Anjou).
[7] Only four copies of Magna Carta dating from 1215 have survived the ravages of time and Salisbury Cathedral is home to the best-preserved original manuscript. Elias of Dereham, priest and steward of the archbishop of Canterbury is thought to have brought Salisbury’s copy to Old Sarum in the days following the events at Runnymede and it has remained in the Cathedral’s care ever since. A second copy of the 1215 Magna Carta owned by Lincoln Cathedral is displayed at Lincoln Castle. Its particular quality lies in the fact that it is written in an ‘official’ hand since Hugh of Wells, then Bishop of Lincoln, was present at the sealing of the original charter at Runnymede. This, together with the role of Stephen Langton, the Archbishop of Canterbury at the time, and a significant mediator in the dispute between King John and his Barons, who had been educated in Lincoln (a seat of radical thinking and learning in the 12th and 13th Centuries) ensured that Lincoln was one of the Cathedral cities to receive a copy of the charter. Interestingly the Lincoln copy, received only four days after its sealing, contains numerous errors indicating the haste with which the ‘official’ scribes were working. The other two surviving copies of the 1215 version of Magna Carta are housed in the British Library. See Salisbury Cathedral, Magna Carta Exhibition <http://www.salisburycathedral.org.uk/visit-what-see/magna-carta-exhibition> Lincoln Castle, Magna Carta <https://www.lincolncastle.com/content/magna-carta>; British Library, Magna Carta, <http://www.bl.uk/magna-carta> .
[8] David Makay, Colenson, William (30 October 2012) Dictionary of New Zealand Biography; TEARA Encyclopaedia of New Zealand, <http://www.teara.govt.nz/en/biographies/1c23/colenso-william> .
[9] To misquote former UK Prime Minister Harold Macmillan ‘... and so I thought the best thing to do was to settle up these little local difficulties, and then turn to the wider vision of the Commonwealth.’ See Harold Macmillan, ‘Mr Macmillan sets out’, The Times (UK) 8 January 1958, 8
[10] Report of the Government Administration Committee on the Inquiry into the Sale of the Government Printing Office (1992) House of Representatives, New Zealand.
[11] James Bruce Ringer, Book and Print in New Zealand: A Guide to Print Culture in Aotearoa (Victoria University Press, 1997).
[12] Warren Berryman, ‘Sovereignty for sale: the law to be privatised in Printing Office Move’, National Business Review (New Zealand) 8 December 1988.
[13] New Zealand Legislation (2016) Parliamentary Counsel Office <http://www.legislation.govt.nz> .
[14] Christopher Finlayson, ‘Official legislation online today’ (Press Release, 6 January 2014) <https://www.beehive.govt.nz/release/official-legislation-online-today>. See also ‘Legislation (Official Electronic Versions) Notice 2014’ (2014) 1 New Zealand Gazette 32. From 5 January 2016 HTML content of the website was declared also to be an official source of legislation. See ‘Legislation (Official Electronic Versions) Notice 2015’ (2015) 141 New Zealand Gazette 7126.
[15] For more discussion see ‘Law News gets the heads up on official electronic legislation’, ADSLI LAWNEWS (13 December 2013), <http://www.adls.org.nz/for-the-profession/news-and-opinion/2013/12/13/law-news-gets-the-heads-up-on-official-electronic-legislation/> .
[16] Legislation Act 2012 (NZ) s 16.
[17] New Zealand Parliamentary Counsel Office, New Zealand Historical Bills (11 March 2016) New Zealand Legal Information Institute <http://ww.nzlii.org/nz/legis/hist_bill/> . The collection has been put together from scans of bound volumes provided by the PCO and the Office of the Clerk to the House of Representatives, and the documents hosted by NZLII. While most volumes were taken apart to enable scanning, some of the earliest (not yet available online) were too rare to treat in this way. Instead they were scanned by the Australasian Legal Information Institute (AustLII in Sydney) using a non-destructive scanner that produces high-quality images from books open to only 30°.
[18] New Zealand Parliamentary Counsel Office, New Zealand Regulations As Made (3 May 2016) New Zealand Legal Information Institute <http://www.nzlii.org/nz/legis/num_reg/> .
[19] For more information see the latest evaluation report available from MFAT at: New Zealand Foreign Affairs and Trade, Evaluation Reports 2015 (August 2015) New Zealand Foreign Affairs and Trade/Manatu Aorere <https://www.mfat.govt.nz/en/aid-and-development/our-approach-to-aid/evaluation-and-research/evaluation-reports-2015/>.
[20] Pacific Islands Legal Information Institute (July 2016) PacLII <http://www.paclii.org/> .
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