New Zealand Council of Law Reporting Amendment Bill

LINDSAY TISCH (Senior Whip—National) Link to this

I seek leave for clauses 1, 2, and 3 to be taken together as one debate.

CHRISTOPHER FINLAYSON (National) Link to this

This is a very simple bill, and I do not think too much time needs to be spent on it. It deals with an amendment to the functions section of the New Zealand Council of Law Reporting Act. The National Party says it makes perfect sense, and indeed it is necessary for section 12 of the Act to be amended so that the decisions of the Supreme Court can be published in the New Zealand Law Reports by the Council of Law Reporting.

I wish to make only two observations. The first deals with proposed new subsection (6), which provides that the Chief Justice may authorise any person, firm, or company to publish reports of decisions of the Supreme Court. That is a rather odd provision, and I would have thought that it was both inappropriate and unnecessary. The Council of Law Reporting should be responsible for publishing law reports, and it seems anomalous that a judge, even one as senior and as important as the Chief Justice, should be able to authorise other persons to publish decisions of her court if she thinks it appropriate.

The next point I make relates to the proposed typescript amendments in my name, dated 31 March. These amendments try to raise matters that were dealt with by Mr Harawira from the Māori Party and Mr Paraone from New Zealand First about the apparent gap in the legislation dealing with decisions of the Māori Land Court and the Māori Appellate Court. I confess that when one thinks about it, on the face of it the reports of both those very important courts do appear to have been overlooked.

I want to say something about the Māori Appellate Court, which performs a very important role in our justice system. Indeed, as set out in the Te Ture Whenua Maori Act 1993, it is the equivalent of the High Court. Under section 58A of that legislation, an appeal from the Māori Appellate Court goes to the Court of Appeal and, in exceptional cases, it goes to the Supreme Court. So we are dealing with a major court in the system. Its decisions are of great importance, and they need to be recorded somewhere. They are not recorded anywhere at the present time.

Let me tell members about one of the most interesting decisions that has been through our court system in recent years. In 1990, pursuant to a jurisdiction conferred on it by section 7A of the Treaty of Waitangi Act 1975, the Māori Appellate Court was required to determine the boundaries of Ngāi Tahu. A judgment dated early 1990 established that the boundaries of Ngāi Tahu ran from Kahurangi Point on the West Coast to Parinui o Whiti on the east coast. That decision spawned a great deal of litigation. Immediately after that decision, a disgruntled party petitioned the Privy Council for special leave. When the Ngāi Tahu settlement legislation was introduced in the late 1990s, an action was commenced in the High Court to set aside the decision of the Māori Appellate Court. That decision has been the subject of two petitions for special leave to appeal to the Privy Council. The substantive appeal to the Privy Council will be heard in July this year.

Therefore, there have been a number of major cases in the High Court, Court of Appeal, and Privy Council on the Māori Appellate Court decision of 1990. Most of them have been reported in the New Zealand Law Reports, but the decision that spawned all the litigation—the very important Māori Appellate Court decision of 1990—is reported nowhere. It is found in a minute book. I say that is insulting to the Māori Appellate Court, and it is insulting to Māori. That is why my amendments provide for the inclusion of Māori Appellate Court decisions in the Act.

Hon RICK BARKER (Minister for Courts) Link to this

I want to cover some of the ground that has been traversed by Mr Finlayson, because he makes an interesting point in respect of the amendment he has moved. I accept from the outset his contention that judgments of the Māori Land Court and Māori Appellate Court should be published and accessible. Having seen the amendment, I spoke with my officials and was advised that the subject has a very chequered history.

A royal commission in 1980 recommended that the decisions of the Māori Land Court and the Māori Appellate Court should be made available on an ongoing basis and be published continuously. It seems that from there the matter was picked up by the Department of Māori Affairs. It published a document called Tai Whati, which covered selected decisions. This publication carried on for some time and was eventually picked up by LexisNexis. If anybody wanted to go back prior to this they had to go to the work of Chief Judge Morrison, who compiled a 1960 digest going all the way back to 1958. So there have been several attempts to do something about the publication of these decisions.

I am pleased to advise the Committee that the Ministry of Justice has serious work under way in this area. I am advised that within 6 months we should have completed some work for the publication of Māori Appellate Court decisions. They are currently being formatted and collated, and will be forwarded to the judges for vetting. So we will have an ongoing process there.

MARK BLUMSKY (National) Link to this

Wild horses could not keep me away from the Chamber tonight. To be able to speak to the New Zealand Council of Law Reporting Amendment Bill is the highlight of my, so far, short parliamentary career.

This is my first legal bill. My colleagues Mr Richard Worth, Chris Finlayson, Wayne Mapp, and Kate Wilkinson are very articulate and knowledgable, and have shown it. They can speak on legal matters at great length. A small bill like this generates hours of discussion from them, and I suppose they get used to doing that when they charge by the hour, as they would have done in the past. I have some claim to legal fame, however. I am married to a lawyer and have undertaken pillow talk to prepare for my speech tonight. So I want to thank my colleagues for their fine speeches on the second reading of the bill, because they gave me a great heads-up on the substance and issues surrounding it.

I am pleased to stand here tonight and say that National does support this bill. Unfortunately, in my short time here in the House, that has hardly ever been the case. In fact, the other day, we could not even agree on a debate to debate the introduction of a bill. That was a bill we had not even seen. It was a pity, because the bill was on local government and it was important to me, but it made local government look like a real afterthought. Debating a bill we had not seen was like doing a book review off the back page, or like doing a TV review off the trailer—an example of very poor Government. But let us go back to the matter at hand.

National supports the New Zealand Council of Law Reporting Amendment Bill, and rightly so. The New Zealand Council of Law Reporting Act came into being in 1938, and in 68 years do not things change? After that 68 years we now have the Supreme Court, which has been added to the list of courts the council has the primary right to publish decisions from. Gosh, in 1938 there was no mention in the Act of a Supreme Court, because at that time people did not think, or could not even believe, that New Zealand would lose access to the Privy Council and end up with a Supreme Court. In fact, if people had been asked in the year 2002, when the Supreme Court legislation was introduced, they would have said no—no to the fact that the Government was ending 160 years of New Zealanders’ rights to appeal to the Privy Council. There was great unease about that major constitutional change, and great unease that such a change was taking place so easily. It was a tragedy.

I can now also understand the importance of having a complete reporting body. There is a danger that if this work were split into multiple parts, there would be multiple publications. A complete picture and understanding of the whole is important. New Zealand needs the New Zealand Law Reports to be authoritative. Lawyers refer to these reports. They want to see how law develops and to find out just what the distinguishing facts behind decisions were. So it is important that the whole is kept as a complete picture.

As mentioned in clause 3, I also see a real benefit in the authorisation of publication in other specialist law reports or other occasionally produced publications. In 1972 there were two volumes of reports; now there are four each year—plenty of reading. But sometimes information and interpretations are needed earlier than those four volumes of the New Zealand Law Reports can deliver them. So I do see a role for other publications to deliver the information in a speedier form.

I also like especially the provision in this bill whereby the New Zealand Law Society may authorise alternative persons, firms, or companies to publish reports if the council fails to publish its reports within a reasonable time and at a reasonable cost. Is it not important that even the New Zealand Law Reports has a pressure on performance?

I note that the New Zealand Council of Law Reporting Amendment Bill was referred to the Government Administration Committee on 17 May 2005, and that there was one submission. Not too many wanted to argue on this one. It was hard work for the committee to come to a consideration—not!

Gosh, it is very different from the bills I have that are in front of the select committee I am on now, like the Manukau City Council’s double act on prostitution reform and graffiti. The reading of the graffiti legislation, one would suggest by definition, would not be quite as legally challenging, but if one could manage to read the graffiti, I am sure it would be just as worthwhile.

I commend to members the continued passage of this amazingly important bill.

KATE WILKINSON (National) Link to this

Some may not consider this bill to be of much importance, some such as my colleague Mr Finlayson take a keen interest in it, and others will not think that this is a vital area for the State to be deliberating on. In fact, if we read the Government Administration Committee’s report, we see that the hearing of evidence on this bill took only 15 minutes. One submission was received, and the consideration took a total of 25 minutes.

So why is there not more interest in such a riveting, albeit not lengthy, bill? What does the legislation purport to do? Well, it produces the New Zealand Law Reports, which is the authoritative set of key judgments of New Zealand’s higher courts: the High Court, the Court of Appeal, and now the Supreme Court—and, interestingly enough, the Land Valuation Tribunal. I have to say that after 26 years as a lawyer in practice, I do not know of anyone who has ever appeared before that tribunal. I also say that I have spent comparatively little time delving into the detail of the .

I have to ask how many times decisions of the Land Valuation Tribunal have been referred to. The Land Valuation Tribunal is a specialist tribunal that deals with matters arising from a number of Acts, including matters to do with land valuations—surprisingly enough—and titles. This tribunal is comprised of a chairperson, who is a District Court judge, and two registered valuers.

But is it more important to record the decisions of the Land Valuation Tribunal than those of the Birdlings Flat Land Titles Commissioner? This commissioner also deals with titles, albeit limited to Birdlings Flat land, which is in Canterbury—Crusader country, in case members need awareness of that. But the Birdlings Flat Land Titles Commissioner is also listed on the Ministry of Justice website as a tribunal. Why are the Land Valuation Tribunal decisions considered more important and more deserving of being reported in the New Zealand Law Reports than the decisions—I am sure they are numerous—of the Birdlings Flat Land Titles Commissioner?

We have many specialist tribunals in New Zealand, and the Land Valuation Tribunal is but one. But only the Land Valuation Tribunal has been singled out for this specialist treatment. Of course, many of the decisions of the other tribunals are recorded, but not under the auspices of the New Zealand Council of Law Reporting. There is every opportunity for inconsistency of standards between the various tribunals. Why not include in this bill the decisions of the Liquor Licensing Authority—that authority also comprises a District Court judge plus three members—the Environment Court, or, as my colleague Mr Finlayson said, the Māori Appellate Court? They are increasingly important court decisions, they are often technical, and they can have a huge impact on future developments.

With the continued delay in amending the Resource Management Act, it is even more important for the Environment Court that its decisions are reported properly and accurately. But the decisions of the Environment Court are not the responsibility of the New Zealand Council of Law Reporting, and again one would have to ask why. I am sorry to go back to it, but what singles out the Land Valuation Tribunal decisions as being more important than the Environment Court ones?

The New Zealand Council of Law Reporting is the body responsible for producing this official series of reports. High-quality reporting of legal judgments is an absolute must. In New Zealand, where our legal system is based on statute law and case law, it is absolutely imperative that the case law is authoritative, of a high quality, accurate, reliable, and consistent. That case law is reported in the New Zealand Law Reports. Those cases set the precedents on which later cases rely. They must be right. It is extremely important that we have an official series of law reports. They assist the lawyers, they assist the judges, and they assist the public to gain access to key court decisions.

This bill is technical; it is a machinery-type bill. Although there may be some questions raised about it, and about the reasons why some tribunal decisions are included and some are not, at the end of the day it is sensible to include Supreme Court decisions in the New Zealand Law Reports. It is important to maintain the accuracy, integrity, consistency, and reliability of judgments. National supports this bill.

Dr RICHARD WORTH (National) Link to this

We have indeed been fortunate tonight to hear contributions in a substantial and an insightful way in connection with the New Zealand Council of Law Reporting Amendment Bill, and useful references to the Land Valuation Tribunal have been made by the previous speaker. I echo the comment made by Mark Blumsky that one of the issues touching law reporting is the delay between the delivery of the judgment in the relevant court and the publication of that judgment. That has spawned a number of specialist reports in which the standard of reporting is often quite uneven.

Other speakers have spoken about what this legislation does, and they have also made the point that the Government Administration Committee did not feel unduly burdened by this bill so was able to deal with it both robustly and quickly. That is of little wonder because, of course, none of the members on the committee have legal qualifications. I believe it wrong in principle that legislation with a high level of legal content should be considered by committees such as the Government Administration Committee, which have subject areas of expertise far removed from such legislation.

One of the issues that arises with legislation of this type is the question of why we should have law reports, and Kate Wilkinson touched on that issue very briefly in her comments. It is all to do with a Law 101 doctrine called the rule of stare decisis. In common law countries such as New Zealand, Canada, Australia, and the United Kingdom, court opinions are legally binding under that rule. It is a Latin code phrase for the doctrine of precedent—that is, courts within a hierarchy will follow decisions made higher up in that hierarchy, and those decisions are binding on them. That is why the publication of such opinions is important: it is so that everyone—lawyers, judges, laymen, and the media—can find out what the law is, as declared by the judges.

I would like to follow a different line from earlier speakers, and just for a moment talk about some aspects of history and comparison in order to put the New Zealand Council of Law Reporting in context. Of course, this bill of 2006 is amending provisions in old legislation going back to 1938. There is not much law on the stocks dating from 1938, so it is right to say it is old legislation. If we look at what is going on as a matter of history in other countries, then this legislation is patterned very much on that of the United Kingdom.

In England, reports were initially compiled in a rather haphazard fashion by private entrepreneurs. The situation was not helped by the tradition among English judges of delivering opinions orally, and of not distributing written copies. So the quality of the reports usually depended on the shorthand skills of whoever was taking notes. That is why it became an issue for those who followed those matters to form judgments on the merit of a particular set of private reports, by reference to the quality of those who were tasked to sit in court and record the comments as they fell from the judge’s breast. So what happened in the United Kingdom in 1865 was that the non-profit Incorporated Council of Law Reporting for England and Wales was founded, and in the United Kingdom it has certainly become the dominant publisher of reports. It has compiled most of the best available copies of pre-1866 cases into the English Reports. When lawyers cite cases in court, the issue for them today is still that judges prefer particular reports over others.

In the United States a similarly chaotic situation prevailed up to the mid-19th century, when the United States Supreme Court and many states of the United States began to publish official reports.