New Zealand Council of Law Reporting Amendment Bill

Hon RICK BARKER (Minister for Courts) Link to this

I move, That the New Zealand Council of Law Reporting Amendment Bill be now read a third time. This is straightforward legislation that will add the Supreme Court to the list of higher courts for which the New Zealand Council of Law Reporting will be responsible for preparing formal law reports. This is not, as some Opposition spokespeople have said, a major overhaul of our judicial system; nor was it ever intended to be.

The Supreme Court is the highest appellate court and, through all the appellate pathways, has the ability to review the decisions of our courts across the full range of New Zealand law. Given the central importance of the Supreme Court, the law reports will need to be of the highest quality. To achieve this standard, the Council of Law Reporting has been consulting the judges in the Supreme Court and also the New Zealand Law Society to review the current practices and suggest possible improvements. A protocol has been agreed to ensure good practice. We are fortunate to have a number of specialist law reports covering a wide range of specific case law such as tax law, family law, and resource management law. This bill will also clarify the basis on which consent may be given by the New Zealand Law Society to enable specialist reporters to continue this valuable series.

During the debate, an issue was raised about reports on the Māori Land Court and the Māori Appellate Court. It is accepted by the Government that we have an inadequate series of reports in this area. I gave an assurance to the Committee of the whole House at that time that the Government was going to move on this. I want to repeat that assurance, that within the next 6 months or so we will have a better structure for the Māori Appellate Court, and approximately 12 months after that we will have a better series of reports for the Māori Land Court.

In conclusion, the New Zealand Council of Law Reporting Amendment Bill will ensure the continued value and validity of New Zealand law reports by extending the responsibilities of the Council of Law Reporting to include reports on significant decisions of the Supreme Court. This bill is as simple and as straightforward as that, and I commend it to the House.

Dr RICHARD WORTH (National) Link to this

The comments made by the last speaker, the Hon Rick Barker, remind me of that great Latin tag line noscitur a sociis—a word is known by the company it keeps. Certainly, when future generations come to reflect on the contribution that the Hon Rick Barker has made to this House, they will remember this bill as probably the high point of his contribution as a Minister.

In one view, the New Zealand Council of Law Reporting Amendment Bill is short and simple, but it is wholly reflective of the intellect that a powerful Minister in the current administration has brought to this particular task. This is not difficult legislation, as the Minister has been at pains to say. Indeed, it is simple. But it is quite old legislation, and, although he did not say so, it has its origins in 1938, when the principal Act was passed. It is good to be remembered for something positive that one has done in the course of a parliamentary career. That is why I started by saying it is particularly significant that this bill should be identified as the high point of the Hon Rick Barker’s period in Parliament. Sadly, all periods come to a close. Some are marked by stellar greatness; some, perhaps, are not.

I thought I would start with a reference to noscitur a sociis, then come to a more familiar theme—[Interruption]—which will be picked up instantly by Mr Parker in the valuable contribution he is about to make in the course of this third reading speech—which is the doctrine of stare decisis. Why are we strongly supportive of the New Zealand Council of Law Reporting Amendment Bill? Because we are committed to the doctrine of stare decisis. There are no blank expressions on the faces of those members seated opposite, and I know why that is. In common law countries, court opinions are legally binding under the rule of stare decisis. In fact, it is what we here are all about. [] Those members who are interrupting might like to pause for a moment, because I wish to develop other Latin concepts that will clearly be familiar to Mr Barker and his colleagues.

The concept is a simple one. Under that rule, court opinions of superior courts are legally binding—it is the doctrine of precedent. The regular publication of opinions is important, so that everyone—the media, lawyers, judges, and laymen—can find out what the law is as declared by judges.

It is very much a central feature of law reporting that the law reports, as one looks at a decision in a particular case, are in two very structured parts. The first is the headnote, and the second contains in full detail the opinion of the person who delivered the judgment. That is why I want now to consider the concept of ratio decidendi, which I think is fundamental to sound law reporting. Ratio decidendi is a simple concept to articulate, but quite a difficult one to apply. Ratio decidendi translates into very rough English as the “reason for deciding”. It is the task of the law reporter to draw out from the material contained in the judgment what, in fact, the ratio decidendi is. What are the guiding principles in the case? How is the case to be remembered, reflectively, for its precedent value?

I believe that the hallmark of a good report is the ability to discern the ratio decidendi. But it goes much, much further than that and moves into another important area of law, obiter dicta. I would like, in the short period of time remaining, to speak about the important concept of obiter dicta. This is the stuff from which lawyers weave their fairy tales. This is the stuff that keeps them awake at night. It is the pillow talk that is the commonplace of judicial company. I would like for a moment to dwell on obiter dicta. So often in reporting these days we see significant confusion between ratio decidendi, which I have briefly explained, and obiter dicta, which I now want to talk about for just a moment.

I am not completely sure how obiter dicta is best translated these days, but the concept is simple enough. We have the guiding principles of law captured in the phrase ratio decidendi, but these other comments—the comments on the side and the outside comments—make up the concept of obiter dicta. That is the test the Minister has grappled with so determinedly in his decision to bless the New Zealand Council of Law Reporting with this important task of reporting Supreme Court decisions. It is for the reporters to sift carefully through the material to determine what is ratio decidendi and what is obiter dicta. So we will see, in a well-constructed headnote, that differentiation so importantly drawn between those hugely significant concepts.

Mark Blumsky gave a speech in Parliament the other day that I think is worthy of recollection and recall. He made the point—guided by his famous wife, who is a prominent lawyer in the city of Wellington—that one of the problems with law reporting is that the law reports lag significantly behind the publication of the actual decisions of the judges. There is no doubt that this Government, with its laudable outcome of accessibility to justice, on which it fails so lamentably and so often, should clearly pursue a plan that provides accessibility to law reports. Concepts of accessibility are incredibly important, but in this context we are talking about the accessibility of judges’ opinions. We all know that, in looking at issues of access to law, access to statute law is important and well provided for, but access to case law is significantly less so.

I pick up the comments of Mr Blumsky’s wife that it is important we have a timeliness of law reporting. That is why it is important to note the deficiencies in the specialist reports that the Hon Rick Barker has spoken about. They may have an immediacy but they do not necessarily have an accuracy on those two critical benchmarks of identified ratio decidendi and obiter dicta. A much sharper focus should be made in those important areas.

I could have ventured at some length upon the history of law reporting in New Zealand. I have refrained from doing that and instead have decided to give just a very short summary of where we have gone in the context of law reporting in New Zealand. Some would say this is not a bowel-gripping topic. I am led, I suppose, to that conclusion in a provisional way myself. But there is no doubt that the history of law reporting in New Zealand has been a solid one, and it has been a record marked by scholarship and intellect.

I see that the previous Attorney-General, David Parker, who had specific responsibilities for law reporting, is in the House, and I venture to hope he might comment on this legislation. I certainly hope he will do so, because in the course of his career as a lawyer he contributed substantially to decisions in the courts that had a significant commercial consequence.

With time running against me, I will not retrace the complete history of law reporting in New Zealand. I simply say that the current New Zealand Law Reports, as members may know, started in 1881, but complete sets are deemed to have started in 1861, with a number of prior series. In the period from 1861 until about 1872—subject to correction from Mr Parker—we had the Macassey Reports, a publication called the , and later reports.

Dr WAYNE MAPP (National—North Shore) Link to this

I must confess that I am tempted to yield my 10 minutes to the previous speaker. I think it is worth noting on the record that Dr Richard Worth, member of Parliament, was also the winner of the Sweet and Maxwell prize at Auckland University for being the most prominent graduate of his year, and that he was a member of the New Zealand Council of Law Reporting for many, many years.

I think we saw that depth of expertise being reflected tonight, as he explored the principles of, firstly, how to write a law report and, secondly—for the benefit of members on the other side—how to read and understand law reports. After all, unless law reports are accurate, and unless they sum up in the ratio of the case the little headnotes that the previous speaker was talking about, it would be impossible, I suggest, to understand the development and structure of the law.

I know that lawyers are sometimes criticised for going on about the common law and its development over many, many centuries. But the fact that we can stand here, on the summit of centuries and centuries of legal decisions, is of enormous benefit to our country. The principles that we are all so accustomed to in this country: the rule of law, the protection from the powers of the State, and the fact that people can be detained by the police only after they have been arrested, as opposed to simply being hauled off the street and summarily dragged off to jail, which would happen for instance under Saddam Hussein’s regime—something that no doubt the Greens would applaud—are due to the development of the law by our judges.

Let us imagine that we did not have decent law reports. How would we know what had been decided not just last week, last year, or a decade ago, but literally centuries ago? It is absolutely crucial to our system of law that we have good law reports, and that they are accessible. Indeed, people like the Clerk of the House, David McGee, who has written a superb book on the procedures of the House, have provided that enormous depth of precedents that we all value and rely on when we read the law and understand its practical application. How often have I heard a member of the Green Party, for instance, talk about the importance of being protected against the State, talk about civil rights, or talk about the importance of the individual? I know that I have heard members speak on those topics many, many times. None of the precedents would exist without the work of judges, and those precedents would not be available to us unless they had been written—unless, in short, they had been reported.

I also want to put one other point on record, because I am not sure that Mr Chris Finlayson will have the opportunity to speak tonight, although he has spoken previously. He was shabbily treated by the current Attorney-General, I might add, and members on the other side of the House ought to reflect in shame at the political interference that occurred, which meant that proper recognition of his skills of advocacy was not able to be made last year. So I want to put that on record, because it was a shabby little thing done by the Attorney-General—a lack of understanding, really, of the importance of advocacy. It would do well for members on the other side to understand that it is not uncommon, in fact, in other jurisdictions for people to be elevated to the level of Senior Counsel—as the title is now—while in Parliament.

The point I am really making here is that amongst Mr Finlayson’s many achievements he was also a member of the New Zealand Council of Law Reporting for many, many years, and that needs to be put on record. We actually have, in this House today, two members of Parliament who do not just have a general knowledge of the law, who did not just practice the law, who are not just learned and esteemed in their profession, but who have had a direct and material connection to the development of the Law Reports.

I turn now specifically to the bill, which primarily allows the reporting of Supreme Court reports. It is an interesting little oversight, is it not? Because Government members rushed through the decision on the Supreme Court, and because they did not bother to ask the public of New Zealand what they thought, this bill is actually a correction of an oversight—

MARK BLUMSKY (National) Link to this

Yet again I follow some very learned legal colleagues from the National Party. I suggest to members, however, that my background in footwear retailing and my current ownership of 10 years of my lingerie business has also given me a background similar to that of Dr Worth. In fact, I can share with members many Italian words also—words such as Amalfi, Botticelli, and Elle MacPherson—

CHRISTOPHER FINLAYSON (National) Link to this

I had not intended to take a call, but I thought a number of points could usefully be made about the New Zealand Council of Law Reporting Amendment Bill, which, as my colleagues have said, the National Party supports. It is very short, technical legislation that essentially amends section 12 of the New Zealand Council of Law Reporting Act to enable decisions of the Supreme Court to be reported in the New Zealand Law Reports—which, as Dr Worth said, are the official series of law reports.

As my friend the MP for North Shore said, the bill is a bit of a late development. In fact, this should have been done a couple of years ago. It is another example of what I call sloppy or inadequate drafting by this Government’s team. The point is—and this needs to emphasised—that the New Zealand Law Reports have already been publishing decisions of the Supreme Court. For example, those in the Zaoui case took up almost an entire part of the . So it is a case—to get into the Latin mood—of ex post facto. It is being done now, it should have been done earlier, and it was not done earlier because this Government has difficulties with attention to detail, and that is disappointing. Essentially, that is what the bill amends.

In the Committee stage I made a brief comment about new section 12(6), inserted by clause 3, which provides that the Chief Justice may, on occasion, authorise an individual, a firm, or a company to publish reports of the Supreme Court. I ventured to suggest that I thought that was a bad idea. I do not know where that provision came from; its background was certainly not explained in the Committee stage. I would have thought that the Council of Law Reporting should have the sole responsibility for publishing reports of Supreme Court cases, unless the job is not being done in a speedy and effective manner, in which case the council of the New Zealand Law Society can authorise another company or firm to publish law reports.

Occasionally, in the history of the Council of Law Reporting, the New Zealand Law Reports have got behind, and the council of the New Zealand Law Society has been required to authorise competitors to publish reports. For example, I know that when the were getting a bit behind the action, the council of the New Zealand Law Society authorised Brooker’s, a distinguished legal publishing firm in New Zealand, to start publishing the . This has also happened in the past with the and the .

To most people law reporting is a rather boring occupation and does not seem to be of any great moment. But Dr Worth made a number of important points that are worth reiterating. I begin by going back to what I said in my speech during the third reading of the Judicature Amendment Bill (No 3). I talked, with reference to what Sir Geoffrey Palmer said last week, about the importance of accessibility to statute law in New Zealand. It is fair to say that this country’s Parliament is one of the fastest and most prodigious lawmakers in the West, and complaints are often made that New Zealand’s statute law is not as accessible as it should be.

The other great source of law in New Zealand is, as Dr Worth said, the common law. For many years the common law has been reported in the New Zealand Law Reports, and before that in the . In the early years of this country, private individuals and firms reported New Zealand law reports. It is incredibly important that, in terms of the development of the common law, judges, lawyers, law students, and public officials have access to up-to-date reports of New Zealand cases, because the common law changes through the decisions made by judges in the various courts. A major problem has occurred over the years when, from time to time, reports of the cases that have been decided by judges have not been readily available. That is why we have a Council of Law Reporting, that is why we have the , and that is why we have other types of law reports. So it is incredibly important that the decisions of the courts are properly recorded and are readily available in a high-quality series of law reports for lawyers and judges.

When I was making that statement I heard the member for Dunedin South groan, and I was not quite sure what he said. If he would care to repeat himself, I would be quite happy to answer him. He has fallen silent again.