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Improving Public Access to Legislation

A speech for presentation to a conference on public law
Duxton Hotel, Wednesday, 4 April 2001

Geoff Lawn1
Introduction

There are essentially 3 parts to my address today. [slide 2]

I will cover the first 2 parts reasonably briefly, because these matters have been covered before in more detail in other publications. These include a speech I made to the "What makes Parliament tick?" conference in 19992, which is included in your conference handout, and in various documents issued by the Parliamentary Counsel Office as part of the public access to legislation project.

I propose to devote the majority of my address to the third issue: the implications for policy-makers and others of improving public access to legislation. I will outline some of the things that policy-makers can do to assist in ensuring that public access to legislation is improved. And I will explore some of the tensions that now exist between the objectives of improving public access to legislation, and the current political environment, particularly the advent of MMP. [slide 3]

Why is it necessary to improve public access to and understanding of legislation?

The reasons why it is necessary to improve public access to and understanding of legislation are well-known, and well-accepted, and I will therefore only summarise them here. They can also be looked at from 2 perspectives. One is the point of view of the individual citizen. The other is the point of view of the lawmakers, in which I include policy-makers, since it is the policy development process that informs the final shape of any law.

It is a basic principle of our legal system that everyone is presumed to know the law, and ignorance of the law is no excuse. Indeed, the principle is enacted in our criminal law in the form of section 25 of the Crimes Act 19613. Without this principle, the legal system would break down. It would be impossible for the State to function if people could only be held accountable for breaches of laws about which they were proved to have actual knowledge.

But the flip side of this principle is that it is incumbent on the State to make sure that its laws are made available to its citizens. Secret laws are a contradiction in terms under our legal system. In a 1963 case4, the Privy Council stated that the maxim that ignorance of the law is no excuse cannot apply if there is no provision for the publication of a legislative instrument so as to enable a person by appropriate enquiry to find out what the law is.

And it is accepted that it is the role of the State to provide access to an official, reliable, and up-to-date version of its laws. It should not be left to unofficial versions made available, usually at considerable cost, by private publishers, however reliable their products. Even Treasury, to their credit, accept that proposition.

From the point of view of the lawmaker, it is also in its interests that the law be available to its citizens. The State needs it citizens to know their rights and responsibilities.

There are also democratic and law reform aspects to access to the law. Making the law available enables individual citizens to evaluate the lawmaking activities of elected representatives, and therefore participate fully in the democratic process. It also exposes the workability of the law to scrutiny, helping to highlight areas where it needs changing. And of course making proposed changes to the law available enables interested persons and individual citizens to contribute to the quality of the outcome.

There are 2 aspects to access to legislation: physical access and intelligible access. Physical access means providing people with the means of getting their hands on copies of the law, and there are now many formats in which this is possible. Intelligible access means ensuring that people can find their way around, and understand, the law when they get it.

The next part of my address is devoted to outlining how the Parliamentary Counsel Office is going about improving both these aspects of public access to legislation. [slide 4]

What are the tasks involved in improving public access to legislation?

Again, I will outline these briefly, since they are well-documented elsewhere.
[slide 5]

Improving physical access

In terms of improving physical access to legislation, the PCO's project to modernise the process of providing public access to legislation, including an official electronic database of legislation free over the Internet, is well under way. A request for an implementation partner was issued in December last year, and around 20 responses were received from New Zealand and Australian firms. The process for selecting an implementation partner is well-advanced.

The objectives of the public access to legislation project are as follows:

This project will also have benefits in terms of assisting members of Parliament, lawyers, and others involved in the legislative process to understand the implications of proposed changes to legislation. Two features of the new system that the PCO hopes to introduce are as follows:

These features would also be of particular benefit to those involved in the development of legislative proposals, including policy advisers and lawyers providing drafting instructions to the PCO.

The PCO has produced versions of enacted legislation that show how it will be affected by a Bill before the House, but on a very limited basis. For example, a version of the Matrimonial Property Act 1976 was produced for the Justice and Electoral Committee showing how that Act would look if the Matrimonial Property Amendment Bill (as proposed to be amended by the select committee) were enacted. Members of the select committee found this useful, as did the departmental advisers.

The production of such versions of principal legislation is at present very time-consuming, and the PCO could not at the moment consider introducing the practice on a wider scale. However, the system and process changes to be introduced as part of the access project will enable the introduction of such versions on a broader, but still reasonably limited, basis. It may even be possible to make such versions available to the public.

There are still some difficult questions to answer about the continued availability of hard copies of legislation. The PCO intends to discontinue the publication of the bound volumes of reprinted legislation, otherwise known as the brown volumes. But what should take their place? We asked some questions about this in the public discussion paper we published in 19985, but the answers were inconclusive. Should we publish individual reprinted Acts or regulations, or collections of related legislation? And how often? These are issues we still need to resolve, in consultation with users of legislation.

And what of the future? I note that various booksellers are now selling devices that enable people to read books in electronic form (e-books). It is conceivable that some day people will want to read legislation this way, or maybe even receive the latest amendments to the Crimes Act as a text message on their cellphone. [slide 7]

Improving intelligible access

In terms of improving intelligible access to legislation, the PCO has taken a number of steps:

The format changes were premised on the principle that legislation that is well designed allows readers to concentrate on the substance of the legislation, rather than be distracted by format. I have included a few samples in your conference handout. The more significant changes introduced include—

The PCO has also introduced a set of guidelines for clear drafting. They are reproduced in the conference handout. The guidelines draw heavily on the recommendations of the Law Commission in its 1996 report entitled Legislation Manual: Structure and Style. The main things stressed are—

A number of other devices or techniques have been introduced to make legislation more easily navigable and understandable. Recent principal legislation includes outline parts (or reader's guides). I first introduced this feature when I drafted the De Facto Relationships (Property) Bill in 1998, and this has been carried across to the Property (Relationships) Amendment Act, passed by Parliament last week. This device is designed to be of particular assistance to someone who picks up the legislation for the first time. It is intended—

Outline parts have been since been included in the Accident Insurance Act 1998, the Personal Property Securities Act 1999, and the New Zealand Public Health and Disability Act 1999. The response to this device has generally been favourable. Lay people tend to like it more than lawyers do.

We have also introduced examples as a more regular feature of legislation, to show how particular provisions are intended to work in practice. This device is used to very good effect in the Personal Property Securities Act 1999. There are samples in your conference handout.

We have also tried presenting material more often in tabular form rather than narrative prose. The amendments to the Administration Act 1969 contained in the Property (Relationships) Amendment Act are an example. We needed to amend the Act so that a surviving de facto partner would be entitled to a share of his or her deceased de facto partner's estate when the latter died intestate. The existing rules about succession on intestacy were set out in rather dense prose in the Act. We replaced these rules with a more simple table that sought to set out much more clearly what share of an estate each class of surviving relative could claim. I suggest you compare the section with the table and decide which you think is clearer.

A flow chart was included in the Employment Relations Bill when it was introduced.

The use of diagrams, flow charts, and tables is common practice in Australian legislation6.

The PCO has also investigated some improvements to the way that proposed amendments to Bills are presented to select committees. The traditional way of doing this is by way of what are called slips. These are a separate document from the Bill itself, and essentially describe how it is proposed that the Bill be amended. For example. It will say "to omit from line 4 on page 7 the word ‘reasonable', and substitute the word ‘significant' ".

The amendment desired is clear, but it is not easy to see from the slip the effect of the amendment. The context is missing.

Some drafters have for a long time believed that there had to be a better way of presenting proposed amendments. So they have experimented with the word processing feature called "redlining" (or revision tracking).

This means that the drafter takes the text of the Bill as introduced, and makes the changes directly into it. Insertions are shown as underlined text, and deletions are shown as struck out text. Law firms have used this technique for many years to show changes to versions of draft contracts and other documents. It is essentially how amendments to Bills are shown when a Bill is reported back from a select committee, or from the committee of the whole House.

For various technical reasons, it has not been possible to easily introduce redlining as standard practice. However, at the instigation of the Justice and Electoral Committee, the PCO has undertaken a feasibility study of introducing redlining for select committee amendments. With some changes to the drafting process and word processing system in use in the PCO, and more significant changes to the typesetting and document management systems in use by Legislation Direct, the PCO will be able to produce redlined versions of Bills for use by select committee members and departmental advisers.

This is only an interim measure, since the process and technology changes to be introduced as part of the public access to legislation project will make the production of such versions of Bills much easier. [slide 11]

What are the implications for policy-makers of improving public access to legislation?

I now come to the third part of my address - the implications for policy-makers and others of improving public access to legislation. Again, I will look at this issue from the 2 aspects of access: physical access and intelligibility.

Physical access

I can only speculate on the impact that improving physical access to legislation will have on policy-makers. Perhaps the increased accessibility of legislation will increase the public's desire to have access to material about the policy development process, or explanatory material about the legislation itself. At the very least, the availability of legislation on the Internet might create a demand for departments to make material associated with their legislation available in the same medium. A number of departments already maintain excellent websites containing a wealth of material about legislative initiatives.

An example of this desire to link legislation with the preceding policy analysis is the initiative the Government has taken in the context of business compliance costs. As from 1 April this year, it is a requirement that Bills which have compliance cost implications for business include, as part of the explanatory note, a copy of the Regulatory Impact Statement, and Business Cost Compliance Statement, produced as part of the policy development process.

Intelligible access

What are the implications for policy-makers and others of the attempts to make legislation more intelligible?

It is here where the endeavours of the PCO to make legislation easier to read and understand, and the realities of policy development and the political process, intersect and in some cases conflict. It is therefore in this area where co-operation between drafter, policy-maker, and politician is most important.

No one would deny that the policy development process is critical to the delivery of good legislation, because it provides the foundations on which the legislation is constructed. And good policy development takes time.

And so it is the same for drafting. Indeed, any drafter will tell you that it takes longer to draft well-organised, clearly worded, legislation, than to produce legislation that is badly constructed and written in impenetrable language. Just as "location, location, location" is the mantra for the property buyer, so it is "time, time, time" for the drafter. So often, the drafting process is seen as the clerical process at the end of the much more important policy development process. And since policy development usually takes much longer than anyone originally planned, and deadlines for the introduction of the legislation have been fixed and publicly announced, the time allowed to the drafter to do a good job is severely curtailed.

This is very shortsighted, because policy ultimately relies for its effectiveness on the extent to which it is translated into workable, intelligible, legislation. The old adage "do you want it right or do you want it right now" is particularly meaningful here.

Another problem that impacts severely on the ability of the drafter to produce well-organised, clearly worded, legislation is last-minute policy changes. The drafter will have taken time and care to design and word the legislation on the basis of a particular policy goal, only to find that policy shifts and changes introduced at the last moment have to be poked and pushed into a structure that really should be redesigned. But there is no time left to do so.

Quite often, such policy changes and shifts are caused by lack of consultation during the policy development process. This means that when the draft legislation is circulated for comment, policy changes have to be introduced to meet the concerns of those consulted. More time taken to consult on the policy, or a wider consultation process, might have resulted in a more stable, refined policy before drafting began.

There is nothing new in these points. They have been made many times by drafters from many jurisdictions7.

Of course it is one thing for people to agree on a policy in the abstract. It is quite another for them to agree on the detailed wording of the legislation that seeks to give effect to that policy. The devil is always in the detail. One option here is to make greater use of a consultation draft, which is a common feature of the political process in both Australia and the United Kingdom. While this involves the drafter much earlier in the process, and may involve much reworking as a result of feedback on the initial draft, it often results in a much more stable piece of legislation as it proceeds through the Parliament.

Complex or inappropriate legislative structures can also affect the accessibility of legislation. One example of this is the wrong balance between Act and regulations. Examples include putting only the sketchiest detail in the principal Act, and the rest in regulations. The purpose of the Act is then very difficult to discern. On the other hand, cluttering up an Act with unnecessary detail will often make it very difficult to read and understand.

Spreading the legislative scheme over too many levels can also make it difficult to see how it all fits together. This is a particular problem when tertiary legislation such as Ministerial notices or guidelines must be read together with both the empowering Act and one or more sets of regulations. It is even more of a problem when material is not actually included in the legislation, but is incorporated by reference. [slide 12]

MMP and accessible legislation

I now want to say something about how current Parliamentary procedures can affect the efforts that the PCO is making to make legislation easier to understand. Some of the issues arise directly out of the introduction of MMP.

I must stress, however, that my comments should not be taken as in any way a criticism of current political structures or processes. They are simply observations from the point of view of a drafter. The PCO, like any other part of the public service, must remain entirely neutral on matters of politics.

There is no doubt that the introduction of MMP has affected the ability of drafters to produce good quality legislation, in terms of drafts that are well-considered, well-structured, and clearly worded. Of course it is the job of an expert drafter to be able to take an idea, and quickly turn it into a workable legislative proposition. Working under pressure is not new or unusual, or unique to drafters. Policy- makers work under similar pressures. But MMP has increased the pressure.

This is particularly so in the context of the committee of the whole House stage of Bills.

The committee stage as it is known, occurs after the Bill has been reported back from a select committee. It involves the House working through the Bill clause by clause, or more often Part by Part, considering and often voting on amendments proposed by the Government and Opposition members.

Before MMP, the only amendments that were usually made during the committee stages of a Bill were those proposed by the Government. These would usually have been drafted in advance by a parliamentary counsel, after consideration of any policy issues, and prepared so that they could be properly integrated into the Bill. Occasionally an issue might arise out of the blue during the committee stages, and require the drafting of an amendment on the spot. In over 15 years' experience as a parliamentary counsel, I have had to draft amendments on the spot very rarely.

MMP has brought a much greater degree of uncertainty to the outcome of the committee stages of a Bill. With a minority coalition government, it is much more likely that the Government will need to broker deals to get its legislation through, and this may often involve last-minute compromises, and therefore last-minute changes to a Bill. Sometimes a party that usually supports the Government may collaborate with Opposition parties to make changes to a Bill, and have the numbers to make changes that the Government does not really want. This happened of course with the New Zealand Public Health and Disability Bill.

Non-government amendments are much harder to deal with in drafting terms than government amendments. They are not drafted by parliamentary counsel, and have not had the benefit of policy analysis by departmental advisers. And very often they are produced at the very last moment. This gives the policy advisers and the drafter very little time to read, assess, and (if necessary) redraft the amendments into something that is reasonably workable.

I come back to my earlier observation that rushed law, particularly last minute policy changes, diminishes the chances of ending up with workable, intelligible legislation. And I think that some of the innovations that the PCO has introduced to make legislation more readable and more easily navigated make it harder to accommodate last minute changes.

For example, a Bill will now usually contain an outline Part or 1 or more outline sections. These will give a general indication of what the Bill is about, its overall arrangement, and perhaps some key terms or concepts. Last minute changes to the detail of a Bill might affect these provisions, but changes might be accepted after the House has debated them.

It would be hard to draft such provisions so that they are flexible enough to withstand such changes, without making the provisions so general as to be meaningless and therefore unhelpful. And while Standing Orders allow debate on particular clauses to be postponed, so that they may be revisited in the light of subsequent changes, it is often difficult to predict the necessity to do so.

It is even more difficult to make last-minute changes to tables, flow-charts, and other graphical aids to intelligibility. [slide 13]

These difficulties are not altogether new. But in the past they have usually arisen in the context of Bills that involve conscience issues, such as the drinking age and liquor licensing. In those cases, the services of parliamentary counsel have been made available to any member who has wanted to propose amendments to a Bill, therefore ensuring that the amendments are well-drafted. And careful planning of the sequence in which amendments are considered by the House has helped to ensure that whatever the outcome of voting in the House, the result is workable.

In some cases a Bill has been sent back to a select committee after its committee stages, so that the provisions of the Bill could be fine-tuned in the light of the policy determined by members. This happened with the Sale of Liquor Bill in 1989. This is not a solution in every case, because of the additional time taken to pass the Bill, but it does acknowledge the need to make sure that the policy decisions made by members are translated into workable policy.

Another approach was adopted for the committee stages of the Sale of Liquor Amendment Bill (No 2) in 1999, which proposed changes to the legal drinking age, the sale of liquor on Sundays, and the availability of liquor in supermarkets. In that case, the House agreed that the committee stages should be conducted in 2 stages. In the first stage, the Committee would debate and vote on the main issues raised by the Bill. Having decided those issues, the second stage would be concerned with tidying up the Bill to reflect the Committee's decisions on those issues.

In order to assist members, the Office of the Clerk produced a guide to the committee stages of the Bill, under the auspices of an all-party committee convened by the Speaker and the Minister of Justice.

Tackling the committee stages of this Bill in this way meant that members initially focussed on the main policy issues, without having to worry about the wording of the amendments needed to achieve each option. When it came to the second stage, the parliamentary counsel concerned was able to focus, in the main, on a single set of amendments designed to give effect to the Committee's decisions on the issues. The procedure is generally acknowledged to have worked very well.

A Bill can also be recommitted after its committee stages, in order to iron out any problems that are detected afterwards. Perhaps surprisingly, the New Zealand Public Health and Disability Bill was recommitted, when all parties agreed that it was necessary to fix up some minor problems with amendments moved by a non-Government member8. That is an encouraging sign.

So there are strategies that the House can adopt to deal with the difficulties I have raised. It is perfectly possible for members to have a vigorous debate on policy issues on which they are deeply divided, and having done so, still ensure that the resulting legislation properly and adequately gives effect to the final policy position reached.

But these strategies may not be possible in the context of a controversial Government Bill where majority support is uncertain. It may therefore be time to consider changes to the way that Parliament currently works to ensure that the objectives of MMP in enabling wider participation on the part of members in the lawmaking process does not defeat the other objective of producing workable, intelligible legislation.

One option would be to make the services of parliamentary counsel available to any member, so that all amendments proposed could at least be properly drafted. However, this would put an enormous strain on the limited drafting resources of the PCO. It would also in many cases result in much wasted effort, because many amendments proposed by members are not agreed to. It would not solve the problem of trying to piece together different amendments proposed by different members into a coherent whole.

Another, and perhaps preferable, option would be to require advance warning of proposed amendments, so that they could at least be analysed in advance, and contingency plans formulated. There is a precedent for this in the context of amendments proposed by members that have a financial impact on the Crown.

Before the introduction of new Standing Orders in 1996, private members were generally prevented from moving amendments to Bills that involved any degree of expenditure requiring an appropriation, unless the Government agreed to recommend the expenditure in a message to the Governor-General. Changes to Standing Orders introduced the financial veto procedure. Private members can now move amendments that affect the government fiscal aggregates, but the Government can veto any amendment that, in its view, would have more than a minor impact on the Crown's fiscal aggregates9.

In order to give the Government time to assess the financial impact of proposed amendments to a Bill, at least 24 hours' notice of an amendment must be given, except in some limited circumstances. If the required notice has not been given, and the Chair of the Committee considers that an amendment has a fiscal impact, it will be ruled out of order.

Would it be any more of an imposition on members to require them to circulate all proposed amendments to Bills a reasonable time in advance of the Bill's committee stages? One possible down side is that it would give the Government advance warning of an Opposition's strategy. And there would have to be safeguards to prevent the Government ambushing the Opposition. It could do this by bringing on the committee stages suddenly so as to negate the right to present amendments before the expiry of the notice period. The financial veto procedure has such a safeguard, so that the 24 hour notice period does not apply where several stages of a Bill are taken under urgency.

Yet another option might be to provide for Bills that have been substantially amended during their committee stages by way of amendments moved with no or only very short notice to undergo some sort of independent legal audit before their third reading. The purpose of the audit would be to identify problems that need correction by way of recommittal.

At the end of the day what must be weighed in the balance is on the one hand a member's right not to be inhibited in proposing whatever amendments he or she likes whenever he or she likes, and on the other hand the clear public interest in ensuring that legislation passed by Parliament is clearly drafted, and workable. The introduction of MMP was intended to make the law-making process more representative and democratic, but surely not at the expense of high quality law-making. The process should not be allowed to compromise the product.

What I am suggesting here would affect not only the quality of the drafting of the Bill finally passed by Parliament. It would also affect the quality of the policy advice that informs the drafting process. Because whether or not an amendment proposed in the committee stages of a Bill is a good idea is in a lot of cases a policy matter, and may not admit of a quick and easy answer.

Conclusion

At the end of the day, improving access to legislation contributes to both the process and the outcomes of democracy. And it is not something that is the responsibility only of drafters. Everyone involved in the legislative process must take some responsibility for it - drafters, policy-makers, and politicians. High quality legislation is the product of a team effort, and always has been.

And legislation that is unclear or unworkable ultimately works against democracy. The result will probably be litigation over what the legislation means. Not only does it impose a cost on both the individual litigants and ultimately society itself as a result of Parliament failing to do its job properly. It also results, quite inappropriately, in judges becoming involved in the lawmaking process, as they try to interpret and apply the legislation. [slide 14]

I end this address with a quote from Lord Oliver of Aylmerton in an article in the Statute Law Review. I think that the quote summarises rather neatly the importance of improving access to legislation, both in terms of physical access and intelligible access. Lord Oliver said this:

For every legislative enactment constitutes a diktat by the state to the citizen which he is not only expected but obliged to observe in the regulation of his daily life...That is why it is so vitally important that legislation should be expressed in language that can be clearly understood and why it should be in a form that makes it readily accessible. Edmund Burke observed that bad laws are the worst form of tyranny. But, equally, well-intentioned laws that are badly drafted or not readily accessible arealso a form of tyranny...we can at least aim at a code that is capable of being understood by a person of average intelligence and of being understood and applied from the four corners of the document that he is directed to consult.10
Footnotes
1 Deputy Chief Parliamentary Counsel, Parliamentary Counsel Office, Wellington, New Zealand
2 A condensed version of this speech can be found in the November 1999 issue of the New Zealand Law Journal, at page 418. A copy of the full version is attached to the presentation notes.
3 25 Ignorance of the law. The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.
4 Lim Chin Aik v R [1963] 1 All ER 223 (PC), at p 227.
5 Public Access to Legislation: A Discussion Paper for Public Comment, Parliamentary Counsel Office, Wellington, September 1998.
6 See, for example, Graphical and other aids to understanding included in legislation, a paper presented to the Tax Drafting Conference, 27-29 November 1996, Auckland, New Zealand.
7 See, for example, Sir George Engle, " 'Bills are made to pass as razors are made to sell': practical constraints in the preparation of legislation" [1983] Statute Law Review 7
8 New Zealand Parliamentary Debates (Hansard), 2000, pp 7235-7236.
9 See Chapter VI of the Report of the Standing Orders Committee on the Review of Standing Orders, I. 18A Appendices to the Journal of the House of Representatives, Wellington, 1995, and Standing Orders 312 to 316.
10 Rt Hon Lord Oliver of Alymerton, A Judicial View of Modern Legislation, Statute Law Review (1993), Vol 14, No 1, p 2.