Access to the Law

It is a fundamental precept of any legal system that the law must be accessible
to the public. Ignorance of the law is no excuse because everyone is presumed
to know the law. that presumption would be insupportable if the law were not
available and accessible to all. the state also has an interest in the law’s
accessibility. It needs the law to be effective, and it cannot be if the public do not
know what it is. lack of publicity also results in there being no check against
disregard of the laws by the law enforcers themselves.
2 the law of New Zealand, like the law of England, derives from more than one
source. the Common law is law that has been built up by the Judges in the process
of deciding cases. New Zealand inherited the English Common law and has
developed it in its own way. Many important areas of law, for example, much of
the law of contract and tort, remain common law. Non-lawyers who are not
trained in reading court judgments must rely substantially on the expositions of
text writers, and on the advice of lawyers, to know the common law. legislation,
that is to say Acts of Parliament and the various forms of delegated legislation
made under the authority of Acts of Parliament, is the other main source of law
in New Zealand. It has long since outstripped the common law in importance.
It is the modern instrument of law reform. It can do everything the common law
can do and much more besides. Parliament regularly passes about one hundred
Acts of Parliament in a year. Routinely, three or four volumes of Acts each comprising anywhere between 700 and 800 pages are published for each year.
In 2005 the number of pages totalled 2,062, and in 2006 there were a total of 3,308
pages. there are often well over three hundred sets of regulations a year.
3 All of these forms of law common law, Acts of Parliament and delegated legislation
– raise questions of accessibility. this issues paper is concerned simply with Acts
of Parliament. this limitation is based solely on practical considerations of time
rather than strict logic. full study of the accessibility of the common law, delegated
legislation and Bills in parliament must await a future time.
What Does Accessibility Mean?
4 When we say the law must be accessible, what do we mean? the term has at
least three relevant meanings in this context.
5 first, it can refer to availability to the public. In other words, the government
must promulgate Acts. In the words of American jurist lon fuller, a failure to
publicise, or at least make available to the affected party, the rules he or she is
expected to observe, is one of several ways in which an attempt to create and
maintain a legal system can miscarry.2
As long ago as 1651, Hobbes said:3
to rule by Words, requires that such Words be manifestly made known; for else they
are no lawes: for to the nature of lawes belongeth a sufficient, and clear Promulgation,
such as may take away the excuse of Ignorance…
6 this obligation requires, in relation to hard copy, that Acts of Parliament be
printed and made available for purchase at a reasonable cost, and viewable in
places like public libraries. In the modern environment it also requires that Acts
be electronically accessible. We shall call this type of accessibility availability.

the second meaning of accessibility involves users being able to find the relevant
law without unnecessary difficulty. this includes the ability to know that a
relevant piece of legislation exists in the first place, knowing where to look for
it, and being sure that one has found all the relevant law on the subject. If the
law on a subject is scattered throughout several different Acts, that can impede
accessibility. We shall call this second meaning of accessibility navigability.
8 the third sense of accessibility involves the law, once found, being
understandable to the user. If the law is expressed in an unnecessarily
complicated or obscure way, the reader is unable to know the full extent of his
or her rights and obligations. We shall call this meaning clarity. lon fuller
regarded “a failure to make rules understandable” as another way in which the
attempt to make law might miscarry.4

lord oliver of Aylmerton once said:5
it is … vitally important that legislation should be expressed in language that can
clearly be understood and… 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 are also a form of tyranny.
10 Before proceeding to examine how the state in New Zealand satisfies its obligation
to make the law accessible in these three senses, there remains a further
preliminary question.
Accessible to Whom?
11 It seems once to have been supposed that law was the preserve of lawyers and
Judges, and that legislation was drafted with them as the primary audience. It
is now much better understood that Acts of Parliament (and regulations too)
are consulted and used by a large number of people who are not lawyers and
have no legal training. Many people refer to legislation in their jobs. People who
work in the registries of universities and other educational institutions make
constant reference to Education legislation; employers and trade union officials
need to be well versed in employment legislation; the staff of many government
departments, many of whom are not legally trained, work closely with the
legislation that their departments administer; the staff of local authorities need
to access the large quantity of local government legislation;6
and company
officers need to consult company and financial reporting legislation. At other
times ordinary people refer to Acts of Parliament to find the answers to problems
that affect them in their personal lives: difficulties with a neighbour may lead
to them consulting the fencing Act 1978; domestic difficulties may lead to them
consulting our family and relationship legislation. legislation direct maintains
a list of much-accessed legislation that it calls its “best-seller” list.7
In addition,
the interim website of New Zealand legislation receives an average of over
30,000 unique visitors a month; between them they view over 1.8 million pages
of legislation a month.

In most countries, like Australia and New Zealand, almost all
Bills passing through Parliament are referred to a select committee where
members of the public can make submissions. If they are to make those
submissions effectively, they need to be able to understand not only the bill
with which they are concerned, but also other legislation that it amends or in
some way affects.8

It can therefore fairly be said that the audience for legislation extends well beyond
a narrow legal audience. this is not to say, of course, that all readers will be
instantly able to grasp the intricacies of every piece of legislation. Some Acts are
of a technical nature with which they will need legal assistance. our property
legislation, for example, is likely to use technical terms like “estate in land” , and
“easement” . there may also be other legislation in the light of which the Act in
question should be read, the New Zealand Bill of Rights Act 1990 being a prime
example. there may also be court decisions interpreting the Act’s provisions.
often an Act will not provide a lay reader with a clear answer to his or her
problems. the reader will then need to seek legal advice. When it is said, therefore,
that legislation should be accessible to ordinary people, we mean that on reading
it they should be able to gain a general understanding of their rights and obligations,
while still acknowledging that they may sometimes need further legal assistance
to more fully understand and pursue those rights and obligations.9
Availability
14 there is a statutory obligation to make legislation available. the Acts and
Regulations Publication Act 1989 provides that the Chief Parliamentary Counsel,
under the control of the Attorney -General, must arrange for the printing and
publication of copies of every Act enacted by Parliament.10

there is a prior question. Before an Act of Parliament can be said to be available,
the public need to know that it exists. Many Acts do not
come into force until some time after their enactment, and some contain provisions specifying that they come into force only upon the making of an order in council.
Where an Act contains such a provision, a further search can be required
to determine whether, and if so when, the order in council was made.

Navigability
19 It is not enough that Acts be available to a user. the user should be able to
find the relevant provisions of those Acts with as little difficulty as possible. In
New Zealand the law on one topic is sometimes scattered over several Acts. It is all too easy to fail to locate all relevant provisions. Currently New Zealand does
not have an official subject index of legislation. However, each year, the PCo
publishes a volume entitled “Tables of New Zealand Acts and Ordinances and
Statutory Regulations in Force” . It lists all Acts (and regulations) in force in New
Zealand in alphabetical order of titles. It is a table rather than an index, although
there is a certain amount of cross-referencing. the table appears on the PCo website
as well, where it is updated at least six monthly and often more regularly. one of
the commercial publishers, lexisNexis, does publish a subject index. As we shall
see, the absence of a comprehensive official subject index can lead to difficulty.
20 the process of amendment can also lead to problems of navigation. Acts of Parliament
are amended regularly. Indeed, in most sessions of Parliament, the number of
amending Acts greatly exceeds the number of principal Acts. In 2005, for example,
there were 126 Acts passed. of these, if one excludes the Imprest Supply and
Appropriation Acts, only 14 were principal Acts. the great majority of amendment
in New Zealand is what is known as textual amendment, which makes an alteration
to the text of the principal Act. New sections are added, existing sections are altered
or replaced (unlike “referential” amendments, where the amendment is a separate
Act that does not alter the text of the principal Act).22 Under the system of textual
amendment, amending Acts often make little sense when read on their own; the
reader needs the principal Act to hand also to see how the amendments take their
place in the structure of the whole. It is of critical importance when using an Act of
Parliament to ensure that one has located and understood the relevance of all
subsequent amendments to it. the private firm Brookers assists in this process by
visiting subscribers twice a year and updating each principal Act by a process of
striking out amended or repealed provisions with a red pen, and inserting slips
of paper to show the amended version. Not all owners of Acts Subscribe to this
service. Even some libraries do not. Users of unannotated Acts therefore need to
check later Acts to see if there are amendments to the principal Act they are
consulting. Even where Acts are annotated, an annotation may be out-of-date by
the time it is consulted. the inexperienced can fall into serious difficulty.
21 When an Act has been much amended, it is often reprinted (or compiled) by the

Clarity
24 New Zealand has no statutory obligation to make Acts of Parliament
understandable. Some overseas jurisdictions do. thus, the Indiana Constitution,
Article 4, Section 20 states:
Every Act… shall be plainly worded avoiding as far as practicable the use of
technical terms.
25 the Queensland legislative Standards Act 199225 requires, in determining whether
legislation complies with fundamental legislative principles, an assessment of whether
the legislation is unambiguous and drafted in a sufficiently clear and precise way.

Conclusion

Notes

See Also

References and Further Reading

About the Author/s and Reviewer/s

Author: international

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