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Public Access to Legislation: Enhancing the Access Experience

Australia–New Zealand Scrutiny of Legislation Conference
Parliament Buildings, Wellington, New Zealand
31 July–2 August 2007

Geoff Lawn1

Introduction

I have discussed various issues relating to access to legislation in a number of previous papers prepared for various conferences.2 Those papers set out the history of improving access to legislation in New Zealand, the drivers behind the Public Access to Legislation (PAL) project, the problems, issues, and complexities that have had to be faced or accommodated, and what the project seeks to achieve.

I have called this paper "Enhancing the Access Experience" because I think that we can and should move on from a focus on simply providing access to legislation. The PAL project is nearly completed. It will revolutionise the process of drafting and publishing legislation in New Zealand, and significantly enhance the availability of New Zealand legislation (including Bills) to users of legislation and the general public.

But the completion of the PAL project is really only the start of the journey. It will provide the foundation for initiatives that will further enhance access to legislation. This paper highlights 2 areas where there is scope and opportunity for further enhancement. Those areas relate to 2 types of legislation: Acts and Bills. I will also examine some developments in promoting access to deemed regulations.

Public Access to Legislation project

To set the scene, a little background information about the PAL project is necessary.

New Zealand does not have an official electronic version of its legislation. The only official version is the hard copy pamphlet and bound volume versions of Acts and Statutory Regulations, and the hard copy pamphlet versions of reprints of Acts and Statutory Regulations. Unofficial electronic versions of legislation are available on subscription from a number of legal publishers. An interim website providing free public access to unofficial versions of New Zealand Acts and Statutory Regulations is provided by Brookers on behalf of the PCO at www.legislation.govt.nz. The website is updated monthly. It will be replaced by the new PAL website. Bills and Supplementary Order Papers (as well as Acts and Statutory Regulations without their amendments incorporated, and some reprints) are available on the Knowledge Basket website at www.knowledge-basket.co.nz. This material too will become available on the new PAL website. Bills and Supplementary Order Papers are now also available on the Parliament website at www.parliament.nz/en-NZ/PB/.

The principles underlying the obligations of the State to make its legislation accessible are well known and incontrovertible. Everyone is presumed to know the law, and ignorance of the law is no excuse. So the State has a duty to make its laws available to its citizens. Indeed access to the law is really part of the basic infrastructure of society, like roads, electricity, and telecommunications. It is the hot and cold running water of the legal system.

The Acts and Regulations Publication Act 1989 imposes a statutory obligation on the Chief Parliamentary Counsel to make legislation available. But the obligation currently relates only to access in printed form. This form of access is now manifestly inadequate. Advances in technology and the resulting public demand for real time access to information now in practice oblige the State to make legislation available in an electronic format as well.

Other jurisdictions, notably Australia and Canada, have made significant advances in this area in recent years. New Zealand, with the completion of the PAL project, will finally be catching up with them.

The objectives of the PAL project are as follows:

As an aside, it is worth highlighting the basis on which the PAL project was approved by the Government. While it might have been possible to have established that the quantifiable benefits from the project would exceed the costs in the long term, these benefits, savings, and efficiencies do not really do justice to the fundamental imperatives that justify the project. In the end, the basis of the project is fulfilling the State’s duty to make its laws available to its citizens. This is primarily a public interest issue, rather than an economic one.

The PAL project was not approved on the basis of a detailed discounted cash flow analysis, or a financial rate of return to the Crown. It was accepted as a true "public interest" project. Very few public sector projects are approved on this basis. The project also has a close connection with Government’s E-government strategy: Enabling Transformation.3 The strategy states that it builds on previous strategies in the way they addressed the need for convenient and responsive government information and services, and establishes a greater emphasis on enabling participation, reflecting recent changes in technology, particularly the growth in social networking on the World Wide Web. Access to legislation supports the democratic process. It enables people to understand and participate better in the legislative process.

The PAL project is essentially about service delivery. It is fundamental to achieving improvements in providing access to New Zealand legislation. But it is only a start. Successful completion of the PAL project really only gets us where we should have been some years ago. We have been running to catch up, but still falling behind. I seek to illustrate this below.

Accessibility of NZ statute law project

In March 2006, the President of the Law Commission, the Rt Hon Sir Geoffrey Palmer, delivered a paper4 to the New Zealand Centre for Public Law at Victoria University. In that paper, Sir Geoffrey noted the huge amount of legislation on the New Zealand statute book, and expressed the view that it is unmanageable. Its large size, the way it is arranged, and the lack of an adequate index severely impairs the ability of people to locate provisions in the New Zealand statute book. He concluded that although New Zealand has plain English drafting, and despite the improvements in public access to legislation that the PAL project will bring about, we do not have adequately accessible statute law.

Sir Geoffrey pointed to the American approach of producing a code of federal or state law under topic headings, and with full cross referencing. This allows users of legislation to find and read all the relevant law on a topic that is of concern to them. Cross referencing to related topics also highlights material that they might not otherwise have considered relevant.

In New Zealand, it is very easy for a user to overlook relevant material, assuming they can find it in the first place. The only officially produced list of New Zealand legislation, the Tables of Acts and Ordinances and Statutory Regulations in Force, lists enactments by their title. If a user does not know the name of the principal enactment, they might not be able to identify anything that looks remotely relevant. And in some cases, the relevant legislation is not intuitively named, or begins with a word that means that an alphabetical list is useless. A good example is the number of enactments that begin with the words "New Zealand". This means that it is very hard to find enactments like the New Zealand Public Health and Disability Act 2000, the New Zealand Security Intelligence Service Act 1969, and even the New Zealand Bill of Rights Act 1990.

Sir Geoffrey also pointed to the fact that, in New Zealand, the law on a related topic is often scattered across many different statutes. By contrast with the US Federal Code, which has a topic called "animals", some of the law on animals in New Zealand is contained in the Animal Identification Act 1993, the Animal Welfare Act 1999, and the Animal Products Act 1999. But looking under "A" in an alphabetical index won’t provide a complete list of the statutes relating to animals. There is also the Dog Control Act 1996, the Wild Animal Control Act 1977 and the Wildlife Act 1953.

Using Iowa as an example of what is possible, Sir Geoffrey noted that the whole of the statute law of Iowa is reprinted every 2 years in an integrated and accessible manner. And the conferral of a number of editorial powers and duties mean that these reprints do not need to be re-enacted by the legislature. His conclusion was that, with modern technology, such a process should not be impossible in New Zealand, and indeed needs to be seriously considered. He added that—

"… once New Zealand has an official electronic statute book, it will be much easier to introduce further improvements in the arrangement and presentation of our legislation by taking advantage of modern technology. The future development of more powerful search engines will doubtless assist."

The Government subsequently invited the Minister responsible for the Law Commission to include in the Law Commission’s work programme a project, to be undertaken with the Parliamentary Counsel Office (PCO), to investigate making New Zealand’s statute law more accessible.

A small working group was formed, comprising Sir Geoffrey, Professor John Burrows QC, the Chief Parliamentary Counsel, and myself, with research assistance from Zoe Prebble, a legal and policy adviser with the Law Commission. Two other PCO staff members (Ross Carter and Juliet Price) have subsequently joined the working party.

The terms of reference of the working party are as follows:

"The Law Commission, in conjunction with the Parliamentary Counsel Office, will investigate and recommend methods of making New Zealand Statute Law more accessible by the introduction of a more systematic method of classifying and/or indexing Acts of Parliament. This will include:

At the time of writing, the public discussion paper is almost ready for publication. Work done as part of the preparation of the discussion paper includes research on the feasibility of producing a subject matter index of New Zealand statute law, and information was obtained from other jurisdictions about their indexing practices.5 Other issues investigated for the discussion paper include—

The production and maintenance of a subject matter index of New Zealand legislation would not be a trivial exercise. But there is huge potential to increase the accessibility of legislation to non-expert users through the integration of such an index with the PAL system and the provision of direct electronic links to the text of the relevant legislation. This is a good illustration of the potential that the PAL system has to be a platform for further improvements in the provision of public access to legislation.

The issue of preserving and providing access to historical New Zealand legislation is also important. In this respect, the discussion paper will progress an issue that the New Zealand Law Librarians’ Association have been highlighting for some time.6

The discussion paper will be an important catalyst for further discussion of important issues relating to access to legislation. I hope that submissions are made from a wide range of users of legislation.

Amending legislation

In considering enhancements to the accessibility of legislation, it is also important to consider the accessibility of the process of changing legislation. As stated above, the objectives of the PAL project include providing electronic access to Bills at key stages during their progress through the House, making it possible (in selected cases) to see the effects of proposed amendments on existing legislation, and making it easier to see the effect of amendments to proposed legislation during its passage through the House.

The PAL project will build on work that has already been done to improve accessibility to the process of changing legislation. But more can be done, particularly with respect to the way in which proposed amendments to legislation are presented or explained. This is an issue that is particularly relevant in the context of scrutinizing proposed amendments to legislation. I will develop this issue further shortly, but it is necessary to outline some background information first.7

In New Zealand, Bills are subject to a lot of changes as they progress through the House. And for many years, it has been the convention to produce successive versions of Bills that show, by various typographical devices, the changes that have been made to the Bill at each stage. Until recently, proposed amendments to a Bill before the House were traditionally presented in the form of a separate document that described the change in much the same way as an amendment enactment. At the select committee stage, this document was called a "slip of amendments". At the committee of the whole House stage, this document was (and still is) called a Supplementary Order Paper (or SOP).

Slips and SOPs were not very user-friendly. To understand the effect of each individual amendment, and the cumulative effect of all the amendments, on a Bill, Members of Parliament, departmental officials, select committee staff, and (in the case of SOPs) members of the public, had to piece together the slip/SOP and the Bill to get an idea of what the Bill would look like if the amendments were adopted. Amendments to amending Bills are even more difficult to understand, because the reader has to piece together the slip/SOP, the amending Bill, and the principal enactment amended.

Some years ago, at the instigation of the Justice and Electoral Select Committee, the PCO implemented changes to make PCO drafts of proposed amendments to Bills more accessible to members of select committees. A new system called "revision tracking" was developed. This system uses a convention similar to the "track changes" feature in Microsoft Word. Drafters make changes directly into a copy of the Bill before the select committee, with deleted text being shown as struck out, and inserted text shown as underlined.

All amendments to Bills being considered by select committees are now reviewed on revision tracked versions of Bills. Except in very rare cases, slips of amendments have long since been abandoned, which can be a source of regret to nobody.

The revision tracking approach will be taken further by the new PAL system. At present, although the "track changes" approach is used in the consideration of amendments by the select committee, Bills reported back revert to the existing conventions for showing amendments. These conventions are not particularly user-friendly, particularly where several layers of amendments are presented to show amendments made at more than one stage in the legislative process.

It was therefore decided that Bills produced under the new PAL system will show amendments using the revision tracking convention. All amendments at every stage of a Bill’s progress through the House will be shown using underlining for inserted text, and strikeout for deleted text. And it was also decided that in all but the most exceptional cases, only the most recent changes to a Bill would be shown in each successive version. This means that when a new version of a Bill that already has changes made at a previous stage is produced, the previous changes are "accepted", and only the most recent changes are entered into the "clean" copy.

Some complexity arising out of the select committee process will still need to be represented in a Bill. This arises out of the fact that select committees can report Bills back to the House with majority as well as unanimous amendments. In order to distinguish between these 2 types of amendment, plain roman text will be used for unanimous amendments, and bold text will be used for majority amendments. These conventions will be used in the printed copies of Bills, and also in the PDF versions of Bills on the PAL website. However, because of the limitations of HTML, versions of Bills in that format on the PAL website will not use the plain/bold convention, but a user will be able to distinguish between the different types of amendment by "mousing over" the text, and a pop-up box will tell the user what type of amendment has been made.

The introduction of revision tracking has made it easier for members of select committees to make sense of proposed amendments to Bills, and the changes to the way amendments are shown on Bills produced under the new PAL system will make the effect of the amendments more accessible for users. However, the process of proposing amendments to a Bill at the committee of the whole House stage by way of SOP will remain unchanged. As slips used to do, SOPs describe the amendment proposed by reference to the page and line number where the current text appears. So users will still have to piece together the SOP, the Bill, and (in the case of an amending Bill) the enactment amended.

The SOP process poses real difficulties for everyone at the committee of the whole House stage. Whereas at the select committee stage, only 1 set of proposed amendments are usually under consideration, at the committee of the whole House stage there can be several or many SOPs, often containing competing or conflicting amendments. I think the committee of the whole House stage is probably the most stressful stage in the legislative process for parliamentary counsel, officials, the Office of the Clerk staff, and of course Members of Parliament themselves. Complicating the process and adding to the pressure is the fact that amendments can be moved at this stage without notice, and therefore without providing the opportunity for proper consideration of their effect on the Bill as a whole.

Consideration was given at an early stage of the PAL project as to how a modified form of revision tracking might be introduced for the committee of the whole House stage. One option would be to require, along with an SOP, a version of the Bill in revision tracked form, showing the amendments proposed in the SOP. The revision tracked version could then be made available online for members and the general public to view and consider. Obvious complications would arise where there was more than 1 SOP, but it might then be possible to include multiple sets of proposed amendments in one revision tracked version, by using different colours for different members. In any event, it was decided not to pursue any changes to the SOP process on the grounds that it would introduce unnecessary technical complications for the project, and present administrative issues that could really be considered only in the context of a more general examination of House processes.

So there are still complexities arising out of the way in which Bills are amended as they progress through the House. The PAL project will introduce some improvements. However, I think that there are more fundamental issues for access to legislation that arise out of the way in which Acts are amended. And there are some improvements that should also be considered in this context.

The issue arises out of the textual (or direct) method of amending Acts. Individual words, phrases, and whole provisions (sections, subsections, Parts) are inserted, added, or deleted. This contrasts with the non-textual (or indirect) approach. The text of the enactment is not altered, but the new enactment must be read alongside the existing enactment. The textual method of amendment is the preferred approach.8

While the textual method of amendment has many advantages, such as facilitating the reprinting of legislation with the amendments incorporated, it also has a significant disadvantage. At present, the way in which amendments are presented in an amending Bill means that amending legislation is very difficult to understand by itself. The problem is really the same as that presented by the use of SOPs to amend Bills. The amendment is described in the amendment Bill, but the effect of the amendment is really only intelligible by consulting the enactment amended to see how it will read if the proposed change is enacted.

I note in passing that the PCO has recently simplified the drafting of amending provisions, in large part adopting practices followed by the Tax Drafting Unit of the Inland Revenue Department, which drafts tax Bills. So we no longer refer in each amending provision to the principal enactment being amended, instead relying on a general provision that states what principal enactment the following provisions amend. We have also dispensed with unnecessary descriptors of material that is amended, such as "the words" or "the expression". So instead of saying "Section 12(1) of the principal Act is amended by omitting the expression ‘subsection (3)’, and substituting the word ‘committee’.", we say "Section 12 (1) is amended by omitting ‘subsection (3)’ and substituting ‘committee’."

The changes have the effect of making amending provisions much more direct and easier to understand. We also now tend to favour the wholesale replacement of provisions rather than adding, substituting, or deleting words or phrases if this makes the amendment complex. This makes the work of our reprinters easier, but it has the disadvantage that it is difficult work out the precise changes being made. Wholesale replacement may also bring into play issues relating to the compliance of the existing and unchanged parts of the provision with the New Zealand Bill of Rights Act 1990, when a more precise and targeted textual change would not.

The difficulty of working out the effect of amending legislation using the textual amendment method is of course not a new problem. The Renton Committee in its 1975 report said this (at para 13.12), in considering the advantages and disadvantages of the textual method of amendment:

"An amending Bill … drafted entirely as a collection of textual amendments to a parent Act would, on its own, be largely unintelligible."

The Committee went on to say this, in relation to the resulting amending Act:

"The amending Act, drafted textually, is by itself just as incomprehensible to the user as the Bill originally was to the legislator. Certainly a diligent user with time available can make ‘scissors and paste’ amendments of the parent Act using the textual directions in the amending measure. But until he (sic) had done so (and the task would in some cases be laborious), or until the original Act has been reprinted as amended (either in Statutes in Force or otherwise), the user is faced with precisely the same difficulty and inconvenience of constantly having to refer from one Act to another about which there is presently so much complaint. The usefulness of the textual amendment system relies heavily on the systematic and prompt reproduction of edited versions of amended statutes. An important test therefore of the value to the user of textual amendment is whether it will be possible to give him (sic), fairly soon after the new provisions have become law, an edition of the amended code which will reflect the amendment in a handy form."

The current reprint process in New Zealand probably doesn’t pass the Renton test as far as the usefulness of the textual method of amendment is concerned. The production of printed versions of reprints has increased significantly over the last few years, but only a fraction of the statute book is available in an official reprinted form. The introduction of the new PAL system will of course mean that New Zealand Acts and Statutory Regulations will be freely available on the Internet with amendments incorporated as soon as possible after they become law, along with a programme of producing printed versions of reprints in accordance with demand. But this will not improve the intelligibility of amending Bills.

In an article in the Statute Law Review in 2002 entitled "Drafting Quagmires"9, Lord Brightman quoted another Law Lord as having said:

"We have simply no right to legislate in a manner that is incomprehensible to those to whom the legislation is addressed and who are primarily concerned."

So what needs to be done to make amending Bills more intelligible?

The Renton Committee recommended greater use of what is known as a Keeling Schedule. This is a schedule of a Bill that reproduces the provisions of the Act being amended and shows the effect of the amendments on those provisions.

The Renton Committee describes how this type of schedule came into being as follows:

"This device is of comparatively recent origin. It was adopted as a trial in 1938 to meet a complaint by several Members of the House of Commons headed by Mr E H Keeling … that there was far too much legislation by reference which Members could not understand without the texts of the principal Acts referred to as they would appear if amended. Among their proposals for improving the situation was a suggestion that in every Bill which amended previous enactments, those enactments should be re-enacted, with the amendments made by the Bill, in a Schedule which would be preserved against amendment or debate by new Standing Orders."

The Renton Committee noted that it would be impracticable and useless to reproduce in a Keeling Schedule all the previous enactments that are merely consequentially amended or repealed, since this would add enormously to the length of Bills and Acts. However, the Committee recommended that where a Keeling Schedule can assist Members of Parliament or others in understanding amendments made by the textual method, it should be provided wherever it is reasonably practicable to do so.

Keeling Schedules have never really taken off in the United Kingdom Parliament. Lord Brightman, in a debate in the House of Lords on the Sexual Offences (Amendment) Bill in 200010, lamented the fact that Keeling Schedules had virtually died out. Pointing out the complexity of the amendments contained in the Bill, he said:

"To foist an Act of Parliament on the public in this form is simply not fair. It is not democratic. Of course, the answer will be given that the reader can spend ₤1,000 or so on Halsbury’s Laws of England or a computer and that will, to a large extent, overcome his difficulties. But it is not an answer that appeals to me. The proper answer is to add to the Bill a Keeling Schedule."

The use of Keeling Schedules was raised more recently by the House of Lords Select Committee on the Constitution in its report on Parliament and the Legislative Process in 200411. The Introduction to the Select Committee’s Report begins with a very clear general statement of the issues around scrutiny of Bills by Parliament, as follows:

"The scrutiny of legislation is fundamental to the work of Parliament. Parliament has to assent to bills if they are to become the law of the land. Acts of Parliament impinge upon citizens in all dimensions of their daily life. They prescribe what citizens are required to do and what they are prohibited from doing. They stipulate penalties, which may be severe, for failure to comply. They can have a significant impact not only on behaviour but also on popular attitudes. Subjecting those measures to rigorous scrutiny is an essential responsibility of both Houses of Parliament if bad law is to be avoided and the technical quality of all legislation improved. Parliament has a vital role in assuring itself that a bill is, in principle, desirable and that its provisions are fit for purpose. If Parliament gets it wrong, the impact on citizens can on occasion be disastrous; and history has shown examples of legislation that has proved clearly unfit for purpose."

The Select Committee went on to say:

"Our starting point is that the process by which Parliament considers bills should be structured, rigorous and informed, and sufficient to ensure that Members have adequate opportunity to weigh the merits of the bill and consider the detail. We believe that legislation is most likely to emerge fit for purpose if Parliament has the opportunity to be involved at all stages of the legislative process and has mechanisms to digest informed opinion and comment from concerned citizens and interested organisations. Parliament does not operate in a vacuum. It is important that those affected by, or with knowledge of or having an interest in proposed legislation should have an opportunity to make their voices heard while the legislation is being considered rather than after it has taken effect."

In examining the legislative process itself, the Select Committee emphasized the obvious but nonetheless critical point that for Parliament to examine Bills effectively, it needs to understand them. Having acknowledged improvements in drafting style that aid accessibility, and welcomed the publication of Explanatory Notes to Bills as enabling members to have a much clearer understanding of a Bill and its specific provisions, the Select Committee set out its consideration of the use of Keeling Schedules. The Select Committee referred to the practical problems with Keeling Schedules – essentially the time and expense involved in drafting them, and the fact that the utility of such schedules disappears when the Bill is enacted. These were highlighted in evidence to the Committee by Sir Geoffrey Bowman, then First Parliamentary Counsel in the United Kingdom Parliamentary Counsel Office. Sir Geoffrey suggested 3 options: for the instructing department to produce the amended Act in an informal document (his preferred option); to incorporate the amended Act in the Explanatory Notes to the Bill (his next preferred option); or to produce a true Keeling Schedule (his least preferred option).12

The Committee’s view was that, despite these practical problems, they were outweighed by the utility of Keeling-type schedules to Members of Parliament in seeing exactly how a Bill amends an earlier Act, and therefore the potential to significantly improve Parliament’s scrutiny of legislation. The Committee’s preference was for the amended Act, or the relevant parts of the amended Act, to appear as part of the Explanatory Notes. The Committee noted that Cabinet Office guidance material on the preparation of legislation already suggested that where a Bill amends existing legislation, it can sometimes be helpful to attach extracts of the legislation as they will read after the changes made by the Bill. The Committee therefore recommended as follows:

"98. We recommend that where a bill amends an earlier Act, the effects of the bill on the Act should be shown in an informal print of the amended Act and that this should be included in the Explanatory Notes to the bill."

The Committee further recommended that the Cabinet Office guidance should become mandatory. I note that the Guide to Legislative Procedures produced by the United Kingdom Cabinet Office in 2004 states, at para 9.24:

"Many Bills amend existing legislation and it can be difficult for the reader to work out what the amended legislation will look like. Where it is likely to be helpful to the reader, revised passages showing important amendments to key extracts of existing legislation may be annexed to the Explanatory Notes…. The Explanatory Notes should not include lengthy annexes setting out existing legislation as amended. If Departments feel that these would be helpful to Members, they should be provided separately by Departments. The occasional practice of including this material in Bills, as Keeling Schedules, has largely been discontinued, because of the practical difficulties of keeping them up to date."

In 2004, the Joint Committee of the House of Commons and House of Lords on the Draft Charities Bill13 made the following recommendation arising out of its work:

"406. One further barrier to understanding this draft Bill has been mentioned in paragraphs 381-4 above in the context of consolidating the charity law. We sought and obtained from the Home Office a paper copy of how the legislation would appear if the draft Bill was passed and the 1992 and 1993 Acts amended. It was our intention to publish this on the Committee's website to aid understanding of the Bill. Unfortunately—and to our surprise—a publicly available electronic version of the previous and proposed legislation could not be obtained. The Home Office was only able to produce one from commercial sources and this could not be published without the permission of the publisher. We understand that while The Stationery Office does publish electronic versions of past Acts, it does not maintain an up-to-date version including changes made by subsequent legislation.

407. We recommend that when departments produce draft Bills for pre-legislative scrutiny they should make available an electronic version of how current legislation would be amended if the draft Bill is enacted, either to the relevant parliamentary committee or on the departmental website."

The Government Reply14 to the Joint Committee’s Report stated:

"The Government takes note of this recommendation. It also notes the related recommendation, on Keeling Schedules, in the House of Lords Constitution Committee’s recent report on Parliament and the Legislative Process, and wishes to explore further the practical implications of these two recommendations."

I do not know if any further exploration of the implications of these recommendations has been undertaken. The legislation section of the website of the UK Department of Constitutional Affairs (now the responsibility of the Ministry of Justice) provides access to several Keeling-type schedules showing the effect of legislation introduced as recently as 2006. An example is a Keeling schedule for the Representation of the People Act 1983, as proposed to be amended by the Electoral Administration Bill 2006.15

Other jurisdictions have considered the problem of making amending Bills more intelligible. In a 2003 article in the Statute Law Review16, Koen J Muylle noted that in Belgium, a Bill amending existing Acts is published with a co-ordinated version of the text it amends, showing how the amended legislation would look if the amending Bill is passed. If a Bill is considerably amended by a committee of the House, a new co-ordinated version is produced. The article also refers to a similar practice in the Netherlands. There, however, the circumstances in which versions are produced are more limited, and they are available only to members.

In amending Bills introduced in the Canadian Federal Parliament, drafting practice seems to be to replace whole provisions rather than individual words and phrases, and to indicate in the replacement provision, by the use of underlined text, what the amendments are. The Explanatory Note to the Bill sets out the text of the original provision that is being amended, or the text of the relevant part of that provision.

The Constitutions of some States in the United States prescribe how existing legislation is to be amended, and prohibit what is referred to as "blind amendment". For example, Section 36, Article III, of the Texas Constitution states as follows:

"No law shall be revived or amended by reference to its title; but in such case the act revived, or the section or sections amended, shall be re-enacted and published at length".17

Section 3.10 of the Texas Legislative Council Drafting Manual18, which deals with the amendment of existing law in Texas, contains the following guidance about blind amendments:

"Section 36, Article III, Texas Constitution, prohibits amendment by reference (sometimes called "blind amendment"). Amendment by reference is the amendment of existing text by reference to its title or citation, use of directory language, and use of the language added or deleted, as appropriate, without setting out the complete provision as amended. (For example: "substitute ‘30 days’ for ‘10 days’ in the second sentence of Section 2" or "strike the fourth and fifth sentences of Section 1.") An amendment by reference provides little clue to its subject; an interested reader usually must make a careful, line-by-line comparison of the original text with the amendment."

The Drafting Manual refers to the jurisprudence in Texas as to the minimum portion of a statute that is required to be reproduced in an amending Bill. The test is whether the portion of a statute that is reproduced in an amendment indicates the purpose of the amendment and expresses a complete thought. A complete sentence is a threshold requirement.

The Drafting Manual also points out another requirement to be observed in Texas in the preparation of amending legislation, which is imposed by the rules of the senate and house of representatives. The rules of both houses require the underlining of new material, and the striking through and bracketing of deleted material, in the printing of committee reports containing direct amendments of existing law. For example, where text is inserted as a replacement for existing text, the provision would be shown as follows:

"Section 8 of the Health Code is amended to read as follows:

Sec. 8. ISSUANCE OF LICENSE. The members shall [committee may] issue a license to any health care facility [hospital] that meets their [its] requirements."

My examination of amending Bills in other jurisdictions has by no means been exhaustive, but it does suggest that there are ways to improve the presentation of amending Bills, so as to make their effect more intelligible to the reader.

I do not favour the use of true Keeling Schedules in amending Bills, because of the workload that would be involved in keeping them up to date during a Bill’s passage. Bills in New Zealand are amended too much during passage to make Keeling Schedules practicable. Keeling-type schedules included in Explanatory Notes would suffer from the same disadvantage. They would have to be updated and included in the select committee commentary. And there is currently no mechanism for including a Keeling-type schedule as part of a Bill after the committee of the whole House stage, since at that stage there is no longer an Explanatory Note nor a select committee commentary.

Do advances in technology provide the answer? This was very much the view of the House of Lords Select Committee on the Constitution. At page 29 of its report, the Committee said:

"The costs, both financial and in terms of labour intensity, of preparing an information Keeling-type Schedule should, in any event, be reduced over time by advances in technology, enabling the changes to be tracked electronically rather than manually. This should be especially useful as a bill passes through Parliament, enabling changes to be made as a result of amendments to the bill. The task will be much simplified with the completion of the Statute Law Database."19

I think that advances in technology can be used, but not in the way recommended by the House of Lords Select Committee. I think the answer lies in making available an electronic version of the original Act marked up to show the effect of the proposed amendments. But it would be clearly impractical to provide the House with an amending Bill that takes the form of the principal Act marked up with the proposed changes in a revision tracked style. If it is desired to keep to a minimum the amount of material that is presented to Parliament in the form of an amending Bill, then the current style of drafting amending provisions can be retained, and the electronic version of the original Act made available separately via a website.

An alternative, which would involve increasing the size of amending Bills, would be to adopt the American style of drafting amending Bills. This would involve the reproduction of whole components (subsections, sections, Parts) of the original Act in the Bill, with those components marked up in the revision tracking style to show how the original components were amended. If the provisions set out in the Bill were further amended during the Bill’s passage through the House, then it would be possible to incorporate those amendments by showing the latest amendments as a new level of markup (double underline and double strikeout). The PAL system does cater for 2 levels of markup to be used in exceptional cases.

How easy would it be to produce an electronic version of the original Act marked up to show the effect of the proposed amendments? If current manual methods of compilation were used, then the process would be so laborious as to be unworkable.20 Under the new PAL system, it will be possible to produce versions of Acts showing the effect of amendments proposed in Bills. We call these versions "prospective consolidations". But while the PAL system provides the facility to produce prospective consolidations, it is by no means an automatic process, and the amount of work involved means that this will be practicable only in selected cases. I anticipate that once we start producing prospective consolidations with the PAL system, demand for them will grow, and we will have to find ways of making the system more efficient.

The ultimate solution has to be in the use of a system like the EnAct drafting and publishing system used in the Tasmanian Office of Parliamentary Counsel. That system uses a unique and very clever process to produce amending Bills. The proposed changes are drafted directly into a copy of the principal Act, using underlining and strikethrough, and the system then automatically produces the amending Bill in a traditional form describing the amendments. But what makes this system so clever is that the process means that once the amending Bill is passed, an up to date version of the principal Act with the amendments already incorporated is immediately available for publication on the Tasmanian legislation website.21

The Tasmanian Office of Parliamentary Counsel, during the process of drafting and settling an amending Bill, supplies instructing departments with a version of the enactment to be amended, showing the proposed amendments marked up (using underline and strikethrough). In fact, especially in the early stages of the drafting process, the drafter will sometimes just provide the instructing department with the marked up version of the enactment rather than a draft in the form of an amending Bill. As the draft moves closer to being settled, the drafter will then provide the marked up version of the enactment and the amending Bill.

The New Zealand PCO currently has no plans to implement the EnAct system. But it does show how advances in technology can and will assist in improving the accessibility of amending legislation.

But there is something that can be done much more immediately to improve the legislative process when it comes to amending Bills. If the amendments proposed to the principal Act are so extensive that the amending Bill would be very complex, consideration should be given more often to a complete rewrite of the principal Act. It is not a complete answer, but it is worthy of consideration.

Deemed regulations

With some minor exceptions, the New Zealand PCO drafts all subordinate legislation that appears in the Statutory Regulations Series (the SR Series). This material will be available on the new PAL website.

There is a vast quantity of other subordinate legislation that is produced by other Government agencies and independent bodies. There is a subset of this material that is known collectively as "deemed regulations". This comprises instruments required to be treated as regulations for the purposes of the Regulations (Disallowance) Act 1989, but are not drafted by the PCO or published in the SR Series. They are made by Ministers, officials, or organizations, rather than the Executive Council on the recommendation of Cabinet. They include land transport rules, civil aviation rules, and a wide variety of other rules, codes, and other legislative instruments. Because the PCO is not responsible for drafting and publishing this material, it won’t be appearing on the new PAL website.

The Regulations Review Committee has taken a high level of interest in this non-SR Series subordinate legislation, and has made a number of recommendations about this material22. In summary, the concerns of the Regulations Review Committee relate to—

The Government has responded to those recommendations23.

There are 2 aspects of deemed regulations that I want to cover here. The first relates to the quality of the drafting of deemed regulations. The second relates to how people find out what deemed regulations exist and where they can be accessed.

I deal first with the issue of the quality of deemed regulations. One of the main reasons why the PCO exists is to ensure the quality of legislation. A single, centralized, drafting office is able to set and enforce standards in the drafting of legislation. The PCO has a Drafting Manual and Style Manual, an extensive training regime for new drafters, a peer review system for reviewing drafts, and an Editorial Services Unit that undertakes editorial and proofreading checks of legislation.

For the most part, deemed regulations are not drafted by trained, professional drafters, and are not subject to the same level of quality assurance as legislation drafted by the PCO. The Regulations Review Committee itself has commented that "among deemed regulations there are wide variations in drafting style and quality, content, terminology and method of publication".24

To address the quality issue, the Regulations Review Committee recommended that all deemed regulations should be approved by Cabinet as part of the promulgation process. The Regulations Review Committee also recommended that the Government ask the Chief Parliamentary Counsel to develop detailed drafting guidelines for deemed regulations, and that the Government ensure that the criteria for good drafting practice identified in its report are applied to all deemed regulations.

The Government did not accept the recommendation that all deemed regulations should be approved by Cabinet as part of the promulgation process. This was on the grounds that the Cabinet process is not principally concerned with quality or scrutiny, and that mere Cabinet approval of deemed regulations would not improve quality without a change in the drafting arrangements for deemed regulations (which the Regulations Review Committee did not favour).

The Government response did recognize that the quality assurance processes of the Cabinet system may improve the quality of deemed regulations.  So it agreed that the PCO would request all regulatory agencies to ensure that their internal quality assurance systems for proposed deemed regulations address the compliance of each proposed regulation with the matters that are now specified in paragraphs 6 to 8 of the format for papers on regulations ready for submission to the Executive Council (set out under para 8.13 of the Step by Step Guide to Cabinet and Cabinet Committee Processes). Those matters relate to such things as compliance with the Treaty of Waitangi, the New Zealand Bill of Rights Act 1990, and the Legislation Advisory Committee Guidelines.

It also agreed that the PCO would make available to regulatory agencies—

In 2005, the PCO wrote to all regulatory agencies and requested them to ensure that their quality assurance systems for proposed deemed regulations address the compliance of proposed deemed regulations with the matters set out in para 8.13 of the Step by Step Guide, to ensure that deemed regulations are within the powers of the authorizing statute, and are consistent with the basic public law requirements referred to in the Cabinet Office standard format for submissions on regulations. It was also pointed out to regulatory agencies that these requirements should be tested by formal quality assurance mechanisms such as those administered by the Cabinet Office. Regulatory agencies were therefore also asked to consider how the relevant parts of the format for regulations submitted to the Executive Council could best be integrated, with any necessary modification, into their agency’s quality assurance system.

The PCO also made available on CD-Rom a copy of the relevant chapter of the PCO’s Drafting Manual, and a copy of the drafting criteria presented to the Regulations Review Committee. The PCO also pointed out that Chapter 10A of the Legislation Advisory Committee’s Guidelines on Process and Content of Legislation contains useful guidance on the preparation of subordinate legislation.

There is no requirement for any follow-up action by the PCO with respect to these actions. It would be very interesting to find out what steps the various regulatory agencies have taken in response to this work.

An example of where this issue arose in the context of specific deemed regulations is noted in the report of the Regulations Review Committee on its activities in 200625. The report notes that the committee considered the issue of quality assurance systems for deemed regulations in the context of examining the Hazardous Substances (Dangerous Goods and Scheduled Toxic Substances) (Amendment) Transfer Notice 2006. In exploring the matter of requiring regulatory impact statements for deemed regulations, the  committee asked the Environmental Risk Management Authority (ERMA), which was responsible for issuing the notice, for a copy of its quality assurance system documentation.

The committee reports that it advised of 2 improvements that might be made, but that it otherwise found ERMA’s quality assurance system for the making of deemed regulations to be of a high standard. In its response to the committee, ERMA noted that it had been requested by the Attorney-General to develop a formal quality assurance system for compliance in line with Cabinet Office requirements. This is presumably a reference to the request from the PCO in 2005.

The second aspect I want to cover is the concern of the Regulations Review Committee with respect to the limited public accessibility of deemed regulations. The committee’s 1999 report noted that—

Most deemed regulations are in fact available to the public in some form or another, either in printed form or in electronic form via a website. But there is no equivalent of the SR Series that enables the public to go to one centralized publication to access the material. Publication in the SR Series means that regulations can be easily identified and located.

To address these concerns, the Regulations Review Committee made the following recommendations:

The Further Government Response26 to the committee’s report contained a list of deemed regulations not published in the SR Series. The response indicated that the PCO would publish the list of deemed regulations, and a condensed version of the Tables, on the Internet. In order to keep the list up to date, the PCO would update the list on advice from authorities responsible for making deemed regulations, and the Government would request each regulatory agency to give the PCO particulars of each deemed regulation that the authority makes or revokes.

Under an arrangement with Legislation Direct, the PCO subsequently made the list of deemed regulations available on the Internet, together with an electronic version of the Tables. The list of deemed regulations was the list that was published in the Further Government Response, ie, deemed regulations in force as at 30 June 2000.

Other priorities meant that the PCO was unable to make progress in updating the list of deemed regulations for some time. During the 2004/05 summer vacation, the PCO engaged a law student to update the list and make recommendations on a process to keep the list up to date. As part of that work, the PCO contacted all agencies responsible for the preparation of deemed regulations and asked them to supply information to enable the list to be updated.

The PCO subsequently wrote to each agency seeking to put in place arrangements that would enable the list of deemed regulations to be updated on a regular basis. The PCO proposed that its Editorial Services Unit take responsibility for maintaining the list, with the aim of updating the list on the website monthly. The objective was to make the collection of information about the making and revocation of deemed regulations as simple and routine as possible. We suggested that it would be ideal if notification to the PCO of the making or revocation of any deemed regulations could be built into each agency’s processes for the making of deemed regulations.

As a result of this work, the PCO updated the list and transferred it to the PCO website. The PCO also put in place arrangements with individual agencies so that the list of deemed regulations is updated monthly. This involves sending out an email each month to the contact person in each regulatory agency asking if the agency’s information on the PCO website needs to be updated. Most agencies respond to the email. In a couple of instances a regulatory agency itself has pointed out the need to add a new agency to the list.

It should be noted that because the PCO is not involved in the drafting or publication of deemed regulations, the continuing accuracy of the central list of deemed regulations continues to depend very much on the cooperation of regulatory agencies.

The list now provides links to the websites where the deemed regulations are published, information on the administering agencies, and details for obtaining printed copies.

The Regulations Review Committee also recommended that the Tables list all deemed regulations not published in the Statutory Regulations Series. The Government Response indicated that it is not feasible to do so, principally because the titles of many deemed regulations, unlike traditional regulations, do not start with the first word of the title of the empowering Act. If these regulations appeared in alphabetical order in the Tables, they could confuse readers and in any event would be very difficult to find. A good example is rules made under the Civil Aviation Act 1990. They all begin with the word "Part".

In order to facilitate the listing of deemed regulations in the Tables at some future date, the Government indicated that the PCO would explore with regulatory agencies how consistency in the formulation of titles could be achieved.

In March this year, the PCO wrote to all regulatory agencies inviting views on a proposal to achieve consistency in the titles of deemed regulations. The PCO proposed a uniform model for the titles of deemed regulations be adopted to align them with the titles of statutory regulations. A good example is deemed regulations made under the Financial Reporting Act 1993. Statutory Regulations made under that Act follow the traditional style, beginning with the name of the empowering Act, eg Financial Reporting Order 1994. But deemed regulations adopt a different convention, eg FRS-1: Disclosure of Accounting Policies, NZ SIC-32: Intangible Assets – Web Site Costs.

Under the proposal, civil aviation rules would begin with Civil Aviation (eg Civil Aviation (Part 1: Definition and Abbreviations) Rules, and deemed regulations made under the Financial Reporting Act would begin with Financial Reporting (eg Financial Reporting (FRS-1: Disclosure of Accounting Policies).

The PCO sought feedback on its proposals, and advice on any practical difficulties that might arise in implementing the proposals. Only 15 agencies out of the 38 agencies contacted responded to the survey. Most of the respondents supported the proposal, and did not foresee any problems in their implementation. In the light of the relatively low response rate to the survey, the PCO is still considering its next steps.

What more can be done to enhance access to deemed regulations? I do not propose to discuss the topic of a central register of delegated legislation like the Federal Register of Legislative Instruments (FRLI) under the Australian Legislative Instruments Act 2003 (Cth). I note that the Regulations Review Committee, in a 2004 report27, recommended that New Zealand should enact provisions relating to the establishment of a register of legislative instruments as set out in the Australian Legislative Instruments Act 2003. The Government Response28 to the report stated that it did not support legislative change at this time, and that it would be monitoring the operation of the Australian model for 2 years.

However, there are a couple of enhancements to the process that might be considered. The first relates to the process of updating the list of deemed regulations on the PCO website. As set out above, this is managed centrally by the PCO, in response to information received from individual agencies. One option that would mean that the list could be updated in real time would be to enable agencies to update the list themselves, as part of their processes for making deemed regulation. I have in mind the ability for agencies to log into the PCO website and make any necessary changes to the information themselves. This would further the objective of making the updating of the list as simple and routine as possible.

This is how I understand the lodgment process under FRLI works. Agencies are able to use a secure web-based facility to lodge new and back captured instruments and supporting documents for registration.29

The second enhancement might be for agencies responsible for the drafting and publication of deemed regulations to consider making use of the technology developed for the PAL system for their material. There would no doubt be a need to make adjustments to the system to cater for variations in style (unless a more uniform style for deemed regulations could be agreed). But the PAL system, as an integrated drafting, publishing, printing, and reprinting system, should be capable of application to deemed regulations. The Further Government Response30 indicated that in the event that the electronic publication on the Internet of all government law becomes technically feasible, it would be expected that all regulations and deemed regulations will be published in this way. Adopting the PAL system for the drafting and publication of deemed regulations might be one way of achieving this objective.

Conclusion

Significant advancements have been, and are being, made to improve public access to legislation in New Zealand. But accessibility is not enough. Users of legislation must be able to find legislation of relevance to them without unnecessary difficulty. And when they find the legislation they are looking for, they should be able to understand it. The journey is a long one, and it has really only begun. Better quality legislation, and better scrutiny of legislation and proposed legislation, will arise along the way.

Footnotes

1 Deputy Chief Parliamentary Counsel (Access to Legislation) & PCO Project Director, Public Access to Legislation (PAL) Project, Parliamentary Counsel Office, Wellington, New Zealand. The views expressed in this paper are those of the author, and do not necessarily reflect the views of the New Zealand Parliamentary Counsel Office.
2 Improving public access to legislation: the New Zealand experience (so far): Paper presented to the 5th Conference on Computerisation of Law via the Internet, Sydney, 26-28 November 2003, published in (2004) 6 UTS Law Review: "Computerisation of the Law: Global Challenges" Halstead Press 2005. Improving public access to legislation: the New Zealand experience: Paper presented to the Legal Information Symposium 2004, Auckland, 22-24 July 2004. Format of Legislation and Access to Law [1999] NZLJ 418-422.
3 Enabling Transformation: A strategy for e-government 2006 November 2006, available at www.e.govt.nz/about-egovt/strategy/.
4 Law Reform and the Law Commission in New Zealand after 20 years-we need to try a little harder. An Address to the New Zealand Centre for Public Law, Victoria University of Wellington, 30 March 2006. The paper is available on the Law Commission website at www.lawcom.govt.nz/SpeechPaper.aspx.
5 For example, the production of the Index to Subject Matter of Victorian Legislation produced by the Office of the Chief Parliamentary Counsel in Victoria, Australia.
6 See Helga Arlington, Auckland District Law Society Librarian Acid Paper ‘Time Bomb’ Threatens NZ Statutes 6 Law News 20 February 2004, available at www.nzlla.org.nz/documents/Arlington%20Shattering%20statutes_Law%20News.pdf.
7 The following draws heavily on a more detailed discussion contained in a previous paper. See Geoff Lawn Improving public access to legislation: the New Zealand experience (so far) (Law via the Internet 2003. 5th Conference on Computerisation of Law via the Internet, University of Technology, Sydney and University of New South Wales, Sydney, Australia, 26-28 November 2003, pp 15-23.)
8 For a discussion of the 2 different approaches to amendment, see further Chapter XIII of the Renton Committee Report: The Preparation of Legislation, Report of a Committee Appointed by the Lord President of the Council, 1975, Cmnd 6053, HMSO London May 1975.
9 Rt Hon the Lord Brightman Drafting Quagmires Statute Law Review, Volume 23, Number 1, pp. 1-11, 2002. See also Jack Beatson Common Law, Statute Law, and Constitutional Law Statute Law Review, Volume 27, Number 1, pp. 1-14, 2006.
10 (13 November 2000) 619 HL debs, col 118.
11 14th Report of Session 2003-04, HL Paper 173-I, available at http://www.publications.parliament.uk/pa/ld200304/ldselect/ldconst/173/173.pdf.
12 In a Supplementary Memorandum to the Select Committee, the Parliamentary Counsel Office provided examples of where Keeling-type material had been included in Explanatory Notes, and of where departments had circulated Keeling material. This Supplementary Memorandum is available at http://www.publications.parliament.uk/pa/ld200304/ldselect/ldconst/173/4062307.htm.
13 Session 2003-04 HL Paper 167/ HC 660, available at http://www.parliament.the-stationery-office.co.uk/pa/jt200304/jtselect/jtchar/167/167.pdf.
14 Available at www.archive2.official-documents.co.uk/document/cm64/6440/6440.pdf.
15 Available at www.dca.gov.uk/legist/keeling/part1.pdf.
16 Muylle, Koen J Improving the Effectiveness of Parliamentary Legislative Procedures Statute Law Review (2003) 24(3), pp 169-186.
17 See also Article 5, Section 23 of the Arkansas Constitution, and Section 45 of the Alabama Constitution, which contain similar restrictions on the style of amending legislation.
18 Available at http://www.tlc.state.tx.us/legal/dm/draftingmanual.pdf.
19 The Statute Law Database is now available at http://www.statutelaw.gov.uk/.
20 In the case of the Matrimonial Property Amendment Bill 1998, an SOP of some 82 pages was referred to the select committee considering the Bill. The PCO worked with Legislation Direct to produce a version of the Matrimonial Property Act 1976 showing how it would look if the amendments in the Bill and the SOP were adopted. The work involved in producing this "prospective consolidation" was substantial.
21 http://www.thelaw.tas.gov.au/index.w3p.
22 See Inquiry into Instruments Deemed to be Regulations—An Examination of Delegated Legislation 1999 (I. 16R). See also Robin Pawsey Tertiary legislation [2006] NZLJ 214.
23 Government Response to the Report of the Regulations Review Committee on its Inquiry into Instruments Deemed to be Regulations – An Examination of Delegated Legislation 1999 [A5], and Further Government Response to the Report of the Regulations Review Committee on its Inquiry into Instruments Deemed to be Regulations – An Examination of Delegated Legislation 2000 [A5].
24 Activities of the Regulations Review Committee during 2002 (I.16B) (May 2003).
25 Activities of the Regulations Review Committee in 2006 (I.16G) (7 March 2007).
26 See footnote 23 above.
27 Inquiry into the principles determining whether delegated legislation is given the status of regulations 2004 (I.16E).
28 Government Response to Report of the Regulations Review Committee on Inquiry into the principles determining whether delegated legislation is given the status of regulations [2004] AJHR A5.
29 See further Implementing the Federal Register of Legislative Instruments (or FRLS, Spills in the world of Legislative Publishing), Information & Knowledge Services Group and Office of Legislative Drafting & Publishing, Attorney General’s Department, Australian Law Librarian, Vol 14 No. 1 Autumn 2006, p 11.
30 Para 69.