Debate resumed from 28 July.
Hon CHRISTOPHER FINLAYSON (Attorney-General) Link to this
This is a very important issue of black-letter law, and I am excited by this legislation. But it would be quite remiss of me, on this red-letter day for the Labour Party, not to express my sympathy to that party for its ongoing problems. I am especially sorry for my good friend Trevor Mallard, who has today lost his special buddy at pump class at Bodyworks on Thorndon Quay, Chris Carter.
Grant RobertsonHon CHRISTOPHER FINLAYSON Link to this
No, I say to Mr Robertson, I will not be there, because while Trevor does pump classes, I am upstairs lifting the real tin. But I digress, and we have important issues to concentrate on this afternoon.
Hon CHRISTOPHER FINLAYSON Link to this
I will challenge him any day. I doubt whether he could lift what I lift.
Paul QuinnHon CHRISTOPHER FINLAYSON Link to this
Oh, he is too busy sunning himself, which is why he looks like an orange.
The Law Commission proposed that the Parliamentary Counsel Office should be given enhanced powers of editing when producing reprints of statutes, and this recommendation is implemented in full.
Very importantly, the commission also recommended that there should be a systematic programme of statute law revision. This is a process whereby an Act is re-enacted with all the amendments made to it over time incorporated in one single statute. One concern that is often expressed about New Zealand statute law is its inaccessibility, and that is what we are trying to address here. Under this bill, Attorneys-General will be required to produce a programme of statutes to be revised during each Parliament. The Parliamentary Counsel Office will then be required to draft revision bills in accordance with that 3-yearly programme, and Parliament will be able to agree that revision bills will progress through Parliament under a streamlined process that will be set out in the Standing Orders.
Part 3 deals with subordinate, or secondary, legislation. Importantly, it makes provision for disallowance. The categories of instrument that are subject to the disallowance process have been revised. Until now, it has not always been easy to determine whether a delegated instrument was disallowable, and this bill addresses that issue. Part 3 also makes provision for the incorporation of material into legislation by reference to another document. This is a drafting technique whereby a document is given legal effect by being referred to in secondary legislation without being copied out in full or redrafted in some way into the legislative instrument.
Finally, Part 4 makes provision for the Parliamentary Counsel Office by updating the provisions in the Statutes Drafting and Compilation Act 1920. The commission recommended that the Parliamentary Counsel Office should no longer be an Office of Parliament but that it should continue to be outside the core Public Service and that it should remain under the Attorney-General’s control.
The Legislation Bill represents a very significant step in the process of improving and modernising the New Zealand statute book. It brings together law on drafting, publication, and the disallowance of legislation for the first time, and it ensures that legislation is made available to the public through the most appropriate and convenient method. It preserves and enhances the powers of this House to scrutinise and challenge delegated legislation and, importantly, it preserves the independence of the Parliamentary Counsel Office, which has done such an outstanding job for Governments of all hues over many years to ensure that legislation is drafted carefully. I commend the bill to the House.
Hon DAVID PARKER (Labour) Link to this
I say to Mr Tremain that he might still be suffering under a mystery by the end of the sitting today, because I suspect that the vote on the Legislation Bill will not go to a party vote, either, so he might have to wait.
As the Attorney-General has said, this is mechanical legislation, which none the less is very important. It relates to the rules that go to ensuring the integrity of our legislation. I think the Law Commission put it very well when it stated this in its report: “The state has an obligation to make law accessible to citizens. People have to obey the law; ignorance of it is no excuse. So they need to be able to find it and understand it. They will not respect the law if they cannot. Moreover, law which is not accessible is expensive in terms of both time and money.” So the objective of this legislation is to make sure that the law is accessible to people, and that the content of what is printed is reliable in terms of what this House has passed.
I will deal with a couple of the issues that the Attorney-General has touched upon. The first is the issue of the Chief Parliamentary Counsel being able to include amendments in reprints. Clause 24 of the bill states that changes authorised by clauses 25 and 26 may be made in a reprint. It states that they “do not permit any change of text that changes the effect of the provision”, and of course we all agree that that is an appropriate intention. Then, in clauses 25 and 26, the bill sets out some examples of changes. Clause 26 deals with changes to format. They are potentially less contentious than some of the changes that are made pursuant to clause 25.
These things are apparently simple, but at times they will be difficult, because the changes that are permitted to be made include changes to punctuation to make legislation consistent with current drafting practice.
David GarrettWell, that is an admirable ambition, but as Mr Garrett and, I am sure, the Attorney-General will agree, at times changes to punctuation will change the ambiguity of legislation. We have legislation that is currently ambiguous, and it will be interesting to see whether, faced with ambiguity, the Parliamentary Counsel Office tries to fix it. I would suggest that it ought not to; it is actually for Parliament to fix ambiguity. It is not for parliamentary staff to choose which of two meanings it thinks is appropriate. That is one example of where we need to take a wee bit of care in the drafting of this provision and to have a bit of a think as to whether we have the wording of clause 25 quite right.
Clause 25(1)(h) states: “conjunctives and disjunctives may be inserted, omitted, or changed so as to be consistent with current drafting practice:”. Again, I am sure the Attorney-General will have had similar experiences to me in finding conjunctions used in current legislation that are ambiguous as to whether “and” means “or” or whether “or” means “and”. Depending on whether “or” is used in a way that means “and” or a way that means “or”, the meaning of the statute is different. So, again, we have to be a bit careful that we are not giving carte blanche to the authorities to change wording in cases where they might see ambiguity, because Parliament might have intended something different. If there is ambiguity it is for the courts to resolve, and if the courts resolve it in a way that Parliament does not like, then it is for Parliament to change the law. If we do not like the ambiguity in the meantime, then it is up to us to change the law; we ought not to be relying on parliamentary draftspeople to do it.
Some other changes have been made. I like the idea that we will be moving to more regular, systematic revision of Acts. I think that is a good thing. It is made easier these days because of electronic technologies. We might as well take advantage of those changes in technology and move to that more systematic system of revising Acts and, as the Attorney-General has said, include in those reprints all of the amendments that have been made to the Act, rather than asking people who are reading those Acts to read the principal Act, then refer separately to an amendment Act for a provision that is not caught by an annotation, because it is not a minor change to an existing Act but a substantive change.
The ASSISTANT SPEAKER (Hon Rick Barker) Link to this
The debate is through the Chair. We are not having subcommittees in the House.
One of the other changes being proposed is the change to the modern drafting style. I am not sure that all of this is progress, I say to the Attorney-General. In fact, he may know one of my former partners, Stuart Walker, who has been one of the leading proponents of plain English drafting for decades. He and I were, sadly, I have to admit, talking about this very issue a couple of months ago and lamenting the fact that maybe it is because we are used to the previous style of drafting that we find some of the drafting devices used by the Parliamentary Counsel Office these days harder to understand than the previous versions. They might be briefer but they are harder to understand. That is probably not something we can fix through this legislation, but we need to take care that the ambition here is to have easily understood legislation. To the extent that we can make it simpler, that is good, but the greater and more important objective is clarity. So we ought not to pursue simplicity to the extent that we sacrifice clarity of meaning.
The other changes that have been made to the Act largely update the existing legislation. I do not think I can spin this speech out to 10 minutes, so at this point I will resort to saying that I am somewhat surprised that when there is such a big wage gap with Australia, we are not debating something of somewhat more important economic input—
Well, I am not denying that it has some importance, but I do not think it will cause a substantial bridging of the wage gap with Australia. On that note, I say that Labour will be supporting this bill going to the Regulations Review Committee.
CHESTER BORROWS (National—Whanganui) Link to this
I am sorry that I cannot get as excited about the Legislation Bill as my learned cousin, friend, mentor, and colleague Mr Finlayson, or say that I would raise it in conversation, like the previous speaker, Mr Parker. I am glad that Mr Parker takes a significant interest in it, though, because in respect of the language he certainly has saved the rear end of the chair of the select committee, on which committee the member sits on a regular basis.
I am pleased to note that this bill is embracing new technology. We as New Zealanders need to know what the law is so that we can live within it. I note too, in a recent occurrence, that the House voted fully in favour of the Courts (Remote Participation) Bill, and I am pleased that that support is replicated here tonight. Members will recall the prolific use of the audiovisual link that we will soon have in our court system. I am pleased that Labour has embraced that, too. In recent times, as I understand it, Labour has relied heavily on the audiovisual link, closed-circuit television, and the other mechanisms around the House. It is important for us to know, though, when exactly that will be applied so that we know what law we need to live under, and the bounds that we must remain within.
It will also be interesting to see whether Labour fully embraces some of the things that it has not voted for necessarily in the past—for instance, supervised bail, and the provision of ankle bracelets to keep track of who is who, where they are, and whether they are not moving outside the bounds of the precincts where they should be. When National was in Opposition, Labour members were strong proponents of the microchipping of dogs so that when we find a rogue mutt hanging around places where it should not be, we would know who its owner was, the owner’s address, and where the dog could be returned to.
Chris TremainEspecially if it is caught on closed-circuit television, or through the use of an audiovisual link, or if its tracking bracelet has fallen off and it gets lost. It will be good to know who is who, where it should be, and in what kennel it should be tied up.
Hon Steve Chadwick Link to this
I raise a point of order, Mr Speaker. I wonder whether the speaker opposite could come back to the Legislation Bill.
The ASSISTANT SPEAKER (Hon Rick Barker) Link to this
I think the member should take the point. I am not sure I have read a lot in the Legislation Bill about closed-circuit television, and so on.
I will take that advice. I will then move on to the wage gap between Australia and New Zealand, if that would be a little more appropriate. In any event, I am pleased that once again the House is speaking with one voice. I am proud to support this bill.
Hon MARYAN STREET (Labour) Link to this
It is a pleasure and something of a surprise for me to rise and speak on the first reading of the Legislation Bill. Although the nature of this bill has occasioned some hilarity because people consider it to be somewhat technical and dull, I will say that as somebody who has never had legal training but who had the privilege of serving on the Regulations Review Committee for 2 years in my first term in Parliament—and it may say more about me than anything else—I actually find this legislation quite interesting.
I say to the Attorney-General, who may take note of this, that although Labour will support the bill to go to a select committee, I personally have a concern, shared by my Labour colleagues, about any proposed change to the disallowance mechanisms. I had occasion to swot up on the disallowance provisions, being something of a girly swot, and I found the Regulations (Disallowance) Act 1989 and the provisions surrounding it in the course of my work on the committee. The disallowance provision is Parliament’s nuclear deterrent. It is the final shot against regulations that can be drawn up by a Minister, approved by Cabinet, and signed off by the Governor-General.
Regulations go to the Regulations Review Committee for scrutiny—they do not come to Parliament—and that committee decides their fate. I had a couple of years of poring over things that people would find quite dull if they were not intimately acquainted with that particular subject. We pored over lots and lots of civil aviation regulations, for example. Why is that important? If we look at the news in the last few days, we see the importance of the Civil Aviation Authority, and of regulations such as might detail the specified times before dark when a pilot may take off from Queenstown Airport. This is the trivia upon which people’s lives hang, from time to time.
The particular instance when I needed to investigate the disallowance regulations and provision arose from a case that will be familiar to National. It concerned the fact that the Nursing Council wished to change the title of “enrolled nurses” to “assistant nurses”. As it was done outside of legislation—it was done by a statutory body, but was affected by regulation—it never came to Parliament. There was a moment in, I think, 2006 when it looked as though I might have had to rise in the House and exercise the provisions of the disallowance legislation.
I go back to my notes of 2006. It takes only one member of Parliament who is a permanent member on the Regulations Review Committee to give notice, and then a regulation is automatically disallowed, unless it is overturned by virtue of debate within 21 days of a parliamentary sitting. If no member of Parliament rose and contested the disallowance of a regulation, then that regulation, as I understand it, would be disallowed and things would be changed without parliamentary scrutiny. It is like the final strike. It is like a nuclear deterrent on regulations.
I think this area in particular requires careful consideration by Parliament. We pride ourselves on being a very open and transparent democracy, and we are. We usually come second equal in the global transparency index of Transparency International. We come second only to Iceland, and that country might wish at the moment that perhaps it was not quite as transparent as it is. We have generally come second equal with Denmark or Finland in recent years. That is something to be upheld, and something to be proud of.
We need to ensure that no provision allows regulations to be changed through the measure of this bill without proper scrutiny, either by the Regulations Review Committee or by the House itself. The disallowance provisions, I suggest, need close scrutiny.