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Geoff Lawn*
I
begin with a couple of quotations, expressed many years apart, that took my fancy as I was doing the research for this paper. The first is from Jeremy Bentham: “As if from a rubbish cart a continually increasing and ever shapeless mass of law is from time to time shot down upon the heads of the people, and out of this rubbish, and at his peril, is each man left to pick out what belongs to him.”[1]
The second is from a former Chief Justice of New Zealand, Sir Michael
Myers, in the foreword to the 1931 Reprint of the Statutes of New Zealand:
In a young country like New Zealand, where conditions differ so much from those of older lands, a great deal of novel and experimental legislation has been inevitable. It was and is equally inevitable that in the process of time many and frequent amendments (and amendments of amendments) should
become necessary. It is not surprising, therefore, that it should now be found at times difficult to discover the right path through what one of the Judges in
a recent case described as “this thick growth of legislative jungle”.[2]
Hugh Turnbull, who was Assistant Compiler of Statutes in the
Parliamentary Counsel Office (PCO) for 47 years and retired early in
2003, in a televised interview described the process of producing reprints of legislation as like tidying up a room that had been left messy.
I certainly don’t intend to imply that the New Zealand Parliament regards its electorate as a group of unfortunates who scavenge for titbits from the mounds of refuse that accumulate from the lawmaking process. The lawmaking process has a bad press, that some, like Jeremy Waldron,3 are trying to dispel. George Tanner QC, the New Zealand Chief Parliamentary Counsel, has also written about the process.[4]
However, the process of lawmaking, particularly the amendment of existing law, is messy, and we have as much chance of bringing order into that process as I have of convincing my children to keep their bedrooms tidy. The process is complex too. There is the statement attributed to the German statesman Otto von Bismarck that the making of laws is like the making of sausages—the less you know about the process the more you respect the result. Having been involved in a project to improve public access to legislation for over five years, I might say the same about that sort of project.
I think that people generally underestimate the complexity of try- ing to achieve improvements in access to legislation. To achieve real improvements, it is not just a case of building a website and putting the material up in HTML. In New Zealand, we have taken a holistic view of the process of improving public access to legislation, and part of the project involves improving access to the legislative process as well, not just its output. The front end of the system (the website) is probably the simplest part. The back end—designing and building a system that will provide improvements in access to legislation and that is robust, reliable, and can be put into operation with absolute confidence—is the tricky part. And the difficulties are in large part a reflection of the complexity of the legislative process. In New Zealand, that process is particularly complex. The primary focus of this paper is the New Zealand Public Access to Legislation Project, affectionately know as the PAL Project, despite the perhaps unfortunate association with a brand of dog food. Perhaps Bismark was really referring to dog roll rather than sausages! This paper attempts to identify some of the practical issues that we have faced in undertaking
the project. It has not been plain sailing at all.
For two reasons, this paper does not seek to examine in any detail the technical underpinning of the project. First, I am a lawyer and a drafter. It
is far safer for me to leave the arcane world of XML, stylesheets, HTML, PDF, and other tasty ingredients of the PAL sausage to those better qualified in such matters.
Second, at the time of writing, the project is paused while a technical review is undertaken. There are some technical and commercial issues for the New Zealand Government and Unisys, the PCO’s implementation partner for the project, to work through. Some matters are commercially sensitive, and I cannot comment on them at all. PAL is also still work in progress. That limits to some extent what I can say about certain matters. And whatever I say is entirely without prejudice to any further discussions between the New Zealand Government and Unisys.
Before discussing the PAL project in detail, this paper examines
• the history of improving access to legislation in New Zealand, with particular reference to consolidations and reprints
• some early initiatives to establish electronic databases of New Zealand legislation, including the role of private sector legal publishers
• the nature of the New Zealand legislative process
• the objectives of the PAL project, and the technical solution, in outline.
Instead I will focus on some of the issues that are relevant to, or have arisen in the course of, the project. These are:
• the basis on which the project was approved
• the sale of the Government Printing Office (GPO)
• the complexity of the New Zealand legislative process, and the particular challenges that this poses for the design and implementation of an integrated drafting, publishing, and reprinting system
• the requirement to produce paper output. I will then explore briefly some matters that go hand in hand with access to legislation, for a drafting office or from a drafter’s perspective.
History of Improving Access to New Zealand Legislation New Zealand has a long history of access to legislation projects. I won’t call them “public” access to legislation projects, because the idea that legislation should be readily accessible to the general public is a recent notion. As this history shows, the task of improving access to legislation gives rise to issues and problems that are neither novel nor of recent origin. Previous generations have had to deal with the issue of the parliamentary
“rubbish cart” or the “legislative thicket”. And they dealt with the issue
in different ways at different times in history.
The first “access project” was completed in 1908, when New Zealand undertook a true consolidation of New Zealand law. The New Zealand Parliament re-enacted almost every public act, after an enormous effort on the part of a group of commissioners appointed under the Reprint of Statutes Act 1895. As a result, 806 Acts were repealed and replaced with 208, effectively providing a new baseline for New Zealand statutory law.
A complete consolidation of New Zealand law has never been attempted again. In 1931, and again in 1957, reprints rather than consolidations were undertaken. A reprint is a version of a principal enactment with its amendments incorporated. It has official status as a correct statement of the law, but is not re-enacted by Parliament.
The 1931 Reprint was an antipodean equivalent of Halsbury’s Complete Statutes of England. It was arranged according to subject matter, contained quite a large amount of editorial material, and included a voluminous index of statute law.
It is also interesting to note that the 1931 Reprint was undertaken by Butterworths as a joint venture with the New Zealand Government. The services of Butterworths’ lawyers,who had just completed the preparation of the Halsbury’s Complete Statutes of England, would be made available, and the New Zealand Government Printer would print and bind the publication. The proceeds of sale were to be shared between the New Zealand Government and the publishers. In some ways, which I will
elaborate on later, it can be said that the New Zealand Government and legal publishers are also participating in a joint venture in the PAL project.
I also note the last paragraph of Chief Justice Myers’ foreword to the
1931 Reprint, referring to the purpose of the reprint. He says as follows:
I hope and believe that these volumes will be a great convenience to the
Courts, to practitioners, and to Government Departments, and that they
will greatly expedite and simplify the work of all those whose business is to construe and advise upon the statute law.
To Chief Justice Myers, access to the law was for the experts. A similar point of view is expressed in the foreword to the 1957 Reprint. Today, we have a wider perspective!
All subsequent reprints have been produced in the Compilation Department of the PCO. The 1957 Reprint of the Statutes of New Zealand was a reprint of all the New Zealand public acts of general application in force at the end of 1957, and was in sixteen volumes. Between 1957 and 1979, reprints of New Zealand statutes were included as part of the annual bound volumes of statutes.
In 1979, the Reprinted Statutes of New Zealand series was begun. It also heralded the introduction of computer typesetting for reprints (and general legislation). Volumes were published annually “with the intention of reprinting steadily and progressively all public Acts of general application on our statute book”.5 The 1957 Reprint would supersede, and the aim was to make every act of general application available in a form that was not more than ten years old. Some acts in common use that were heavily amended would be reprinted more frequently.
This objective was never achieved. The reasons lie in the enormous amount of legislative change since the early 1980s, a lack of resources in the Compilation Department of the PCO, and archaic work practices that relied on essentially manual “cut and paste” editorial processes and eschewed the use of computer technology. It is these deficiencies that the PAL project is intended to rectify.
I note that, by contrast with acts, very few reprints of statutory reg- ulations have been undertaken. New Zealand statutory regulations began to be published in a separate Statutory Regulations series in 1936, and in the sixty-six year period between then and 2002, only 220 reprints of Statutory Regulations have been compiled. This contrasts with the huge volume of reprints of acts produced during a similar period.
As indicated earlier, the 1908 consolidation consisted of 208 Acts. The
1931 Reprint contained 816 principal acts, and the 1957 Reprint 423 acts. Between the 1957 Reprint and the beginning of the Reprinted Statutes of New Zealand series in 1979, 165 reprints of acts were published as part of the annual volumes of acts. The Reprinted Statutes of New Zealand series,
which consisted of forty-two volumes, contained 805 acts (some reprinted several times), including Imperial enactments in force in New Zealand and
a small number of provincial ordinances of continuing application.
It is of course easier to revoke and replace a set of regulations when they get too messy than it is to do so with an act. I think drafters and the government department that administers a set of regulations are more willing to entertain a rewrite of subordinate legislation than of statutes. There are some notable exceptions. The PAL project will at least mean that regulations in an up-to-date form are as accessible as acts. However, PAL may also encourage a further development, that I will mention later.
Early Initiatives to Establish Electronic Legislation
Databases
The PAL project is not the first public access to legislation project in New
Zealand.
PUBLIC SECTOR INITIATIVES
In the early 1980s, a Computerised Legal Information Retrieval Systems
(CLIRS) committee was established to investigate the setting up of an electronic database of New Zealand legal material. The committee included representatives from the State Services Commission, Government Computing Services, Office of the Clerk, Department of Justice, Crown Law Office, and PCO. John Miller from Victoria University of Wellington Law School was also undertaking his own project at this time.6 The committee existed for several years, but disbanded in the face of computer technology that was considered too immature to handle the complexity of legislation.
An attempt to establish an official electronic database of New Zealand legislation was made towards the end of the 1980s. In early 1988, at the instigation of the GPO, a Consultative Committee on Legislation Databases was established, consisting of representatives from the New Zealand Law Commission, GPO, Office of the Clerk, Parliamentary Service Commission, and PCO.7 The impetus was the provision of funding for three years for the GPO to develop and operate, on behalf of the Parliamentary Service Commission, a number of electronic databases, including a database of statutes, regulations and bills.
The Consultative Committee established a Technical Subcommittee consisting of David Elliott (Law Drafting Officer, Law Commission), Dr Frank March (Consultant to the Parliamentary Service), and Geoff Lawn
(Parliamentary Counsel, PCO). The terms of reference of the subcommittee were:
1. To study the requirements for a legislation database in terms of:
a) Indexing needs—what information should be specifically indexed for each document on the database
b) What types of cross-referencing across the database are necessary and for what types of information
c) What type of cross-referencing is required specifically to handle amendments to documents (e.g. sections) effected by other documents.
2. To study the types of document amendment and cross-referencing that can arise and any specific requirements for dealing with:
a) Repeal of one or more documents by a document
b) Replacement of one or more documents by a document
c) Amendment (i.e. replacement of one or more words) within one or more documents by a document
d) Equivalence relationships between documents e) Transitional provisions.
3. To determine how the above requirements can be met by:
a) Database design, structure and content
b) Wording, content and structure of statutes, explanatory notes, etc. c) Capturing the appropriate information.
4. To study how the need for regular revision of statutes can be met by the existence of a legislative database.
5. To report to the Consultative Committee on Legislation Databases.
The Technical Subcommittee undertook some useful preliminary work. Some of the issues it considered included whether a legislation database could be used to undertake a complete consolidation of New Zealand legislation, how the database might enable a user to see a “snapshot” of the law at an arbitrary point in time, and how the ongoing maintenance of the database might require changes to the way in which legislation is drafted.
A very preliminary study was undertaken of the different ways in which amendments to legislation are described, with a view to standardisation in order to make automatic updating of the database feasible.
However, changes in personnel, the sale of the GPO, lack of resources in the Compilation Department of the PCO, and pressures on the PCO as a result of a very heavy legislative program meant that the committee went into abeyance. PCO personnel also became involved in a separate project to use computer technology in the drafting of legislation so that
it could be typeset without rekeying. This project ultimately led to the introduction into the PCO of the present typesetting system, which relies on the use of WordPerfect that is then translated into SGML by a program set up at Legislation Direct, the PCO’s contracted printer.
Although the initiative of the Consultative Committee on Legislation Databases did not bear fruit, the GPO did produce a number of databases for use in the Parliamentary complex, including databases of acts, bills, Hansard, parliamentary questions, petitions, and standing orders. These
databases were subsequently made more widely available through an arrangement with the Knowledge Basket research archive. Some material was made available to the public free of charge. Other information was available only on subscription. To produce the database of acts, the GPO undertook a back-capture exercise to compile an electronic database of New Zealand acts in force as at 1988. However, except where an official reprint had been produced by the PCO, the database contained principal enactments and their amendments in an uncompiled form.
PRIVATE SECTOR INITIATIVES
Although these official initiatives were ultimately unsuccessful, the private sector moved to fill the gap. In addition to the Knowledge Basket initiative, Status Publishing (now a part of LexisNexis) and Brookers (part of the Thomson Corporation) both invested in the back-capture of New Zealand acts and statutory regulations and produced their own commercially available databases of legislation. The main difference between the Knowledge Basket material and the databases produced by the other legal publishers is that the latter provided consolidated versions of each principal enactment with its amendments incorporated. Some material was made available free of charge to the general public by these publishers.
I note that Status Publishing has recently announced the availability of a thirty volume looseleaf service that provides access to New Zealand statutes in a consolidated form. The cost is $2,500 per annum. I am sure that this will be a valuable addition to the range of commercially produced legislative products. But regardless of how good the publication is, I doubt that the ordinary citizen who wants only occasional access to the law would be willing to subscribe to it.
Summary
To sum up at this point, projects to improve access to legislation have a long history in New Zealand. And what has determined their shape (for example, consolidation versus reprint), and the length of time taken to complete them, has for the most part been resourcing. Technology has not been an issue. It is not apparent that the consolidation of 1908, nor subsequent reprints, tested the boundaries of printing technology.
These projects have also tended to be essentially “backroom” exercises, designed to benefit a very limited group of people, mostly lawyers. For that reason, I doubt that any of the projects had a high public profile at the time it was undertaken.
For those of us who undertake high profile government information technology projects today, the climate is rather different.
The New Zealand Legislative Process
Before discussing the more recent experience in improving public access to legislation in New Zealand, it is important to identify some features of the
New Zealand constitutional and political landscape that have influenced that experience. Some of them are unique. They make it difficult or invidious to compare the New Zealand experience, and particularly the rate of progress, with other jurisdictions.
These features are well described in a paper presented by George Tanner QC, Chief Parliamentary Counsel, to the New Zealand Legal Method Seminar in May 2003,8 and I only summarise them here. They are as follows:
• New Zealand has a unicameral parliament, with no upper House. All our legislating occurs within one House of Representatives, and when
a legislative proposal gets a roll on, it can progress through the House and become law very quickly.
• In New Zealand, politicians, their advisers, and the legislative process in general are readily accessible to interest groups and the public. Perhaps
it is a reflection of the small size of the country.
• New Zealand is a legislatively active country. We legislate often and on a wide range of topics. New Zealand has had many reformist governments. And this may also be a reflection of our relative youthfulness as a nation. We are still working out and developing our jurisprudence in a number of areas, particularly with respect to certain constitutional matters such as the place of the Treaty of Waitangi.
• New Zealand’s legislators are “hands on”, and take an active part in the legislative process.
• Almost every bill introduced into the New Zealand Parliament is referred to a select committee for consideration.
• Legislative proposals in the form of bills very rarely pass in the form in which they were introduced. They are often changed significantly during their passage. Bills can also be divided up at certain stages, and progress as separate measures. In some cases, part of a bill will be left behind for further consideration while another part or parts progress further. In some respects, the introduction of a bill into the New Zealand Parliament
is similar to what happens in other jurisdictions when the Government publishes an exposure draft of a bill. It is a request for comment on a legislative proposal, rather than a statement of intention to legislate in the terms set out in the bill.
• Since the introduction of a mixed member proportional representative electoral system in 1996, New Zealand has been governed by coalition or minority governments. It is often necessary for a government to compromise and horse-trade to gain sufficient support to pass its legislation. This means that the final shape of a bill can change right up until the last moment, and changes in the form of amendments have to be drafted and published very quickly.
• Legislative proposals can have a very long lifespan, and remain before
the New Zealand Parliament for a long time. It is rare for bills not to be carried over from one Parliament to another. Sometimes this is as a result of pressure of business. Sometimes, too, the level of support for
a bill among the parliamentary parties declines, and the Government simply lets it languish on the Order Paper rather than kill it off. Some bills in this category are revived at a later date when the policy again has majority support, or when the bill is seen as a convenient vehicle for progressing a more contemporary policy initiative.
The legislative process is complex, can involve significant changes to a legislative proposal at several different stages, and can involve significant pressure to produce successive versions of a bill quickly. The pace of legislative change can also be very quick, and there are many and frequent changes to the law.
To adapt the Bismarck analogy, the legislative process does not produce regularly shaped products made to a predetermined and unchanging recipe and to a defined timetable. It is not an assembly-line process. Although bills, in terms of structure, tend to consist of predictable components (which is what makes the application of structured text technology for drafting and storage so apposite), they come in all shapes and sizes. And the process of lawmaking is itself unpredictable in terms of timetable and recipe.
Nor does the legislative process necessarily follow a linear progression. Bills can go backwards in the process (for example, a bill can be referred back to a select committee by the House at second reading stage, or even at the third reading stage after having progressed through its Committee stages). What begins life as one bill can finish up as several or many as the original is split up. Often this is by design, as with bills that amend several principal enactments and are best enacted as separate amending enactments. However, sometimes part of what was originally designed to be enacted as one bill can become problematic or controversial, and is left
behind for further consideration, often at the select committee stage.
The recipe for each bill can also change several times during its passage, as a result of several opportunities to introduce significant changes. The whole recipe can be replaced. The Children and Young Persons bill 1988 was completely rewritten in the select committee. Consisting of 250 clauses when first introduced in 1988, it emerged in early 1989 with 469 clauses. Clauses 2 to 250 were simply deleted by the select committee and replaced with quite different provisions based on a rather different philosophy relating to the care and protection of children and young persons, and youth offenders.
Outline of the PAL Project: Objectives and Solution
The background and details of the PAL project, are extensively explained in material freely available on the PCO website.9 For those unfamiliar with these details, the project can be simply summarised:
The objectives are—
• to make legislation available electronically and in printed form from a database owned and maintained by the Crown
• to provide access to acts and regulations in electronic and printed form as soon as possible after they are enacted or made
• to provide access to legislation with amendments incorporated as soon as possible after they become law
• to provide electronic access to bills at key stages during their progress through the House
• to provide free electronic access to bills, acts, and regulations via the
Internet
• to make it possible (in selected cases) to see the effects of proposed amendments on existing legislation
• to make it easier to see the effect of amendments to proposed legislation during its passage through the House.
The project involves the PCO in acquiring a copy of an electronic database of New Zealand legislation, and a set of legislative Document Type Definitions (DTDs) from a private sector publisher. The database and DTDs developed by Brookers have been selected for this purpose.
The technical solution is based on an XML platform. The current components of the solution are as follows:
• legislative documents (bills, acts, regulations, and reprints) will be produced by drafters and other staff in a structured authoring environ- ment, using ArborText Epic Editor, which validates XML documents as they are created
• drafting work in progress and published legislation will be stored internally in a Documentum content management system, which will manage access to sensitive documents, provide version control, and enable the chunking of documents so that a team of drafters can work on the same document simultaneously
• legislation will be rendered into print format using a print rendering engine
• legislation will be made available as static HTML on the website by exporting XML out of Documentum using XSLT stylesheets. PDF versions of legislation will also be provided, so that users can view and print documents that are formatted the same as officially printed documents
• a search capability on the website will be provided by dtSearch
• a facility will be available to enable legal publishers to obtain a daily update of new or substitute documents posted to the website, and to download the relevant XML and PDF files (and associated graphics files).
The PAL project therefore provides a comprehensive and fully- integrated drafting, printing, publishing, and reprinting system. It is a
“big bang” approach.
THE RELEVANCE OF OVERSEAS EXPERIENCE
It is always helpful when contemplating a new initiative to study and learn from the experience of others. We in New Zealand have closely and carefully followed developments in public access to legislation in various Australian jurisdictions over the last decade. This has been greatly facilitated by an Information Technology Forum (IT Forum) for Australasian drafting offices, established in 1995 by the Australasian Parliamentary Counsel’s Committee. This body consists of the heads of the federal and state drafting offices in Australia and New Zealand.
The IT Forum, which is attended by IT, publishing, and drafting staff from each office, had its inaugural meeting in Sydney in October 1995, and has met at least once, sometimes twice, a year ever since. It is interesting that one of the first papers considered by the forum recommended an Australian national approach to the electronic storage and distribution of legislation, based on SGML. The paper was probably ahead of its time, but its underlying premise now forms the basis of many public access to legislation projects that have been completed or are underway in Australasia.
The IT Forum has facilitated a great deal of co-operation and exchange of information, and in some cases the provision of software and consulting advice, among Australian and New Zealand drafting offices, and has undoubtedly had a profound effect on the direction of many of those offices with respect to information technology. The New South Wales Parliamentary Counsel’s Office maintains, on its website, a record of the proceedings of each forum, including minutes of meetings and copies of papers presented. This IT is accessible only to staff of the respective drafting offices, but provides enormously valuable resource material.
However, different jurisdictions have taken different approaches to improving public access to legislation. For example, the Tasmanian EnAct system is a very sophisticated solution that automatically produces reprints as a by-product of the drafting process.10 Although it was implemented in the Tasmanian Office of Parliamentary Counsel in 1997, and studied by many other drafting offices since then, it has not been adopted in any other Australian jurisdiction to date.[11]
New South Wales has taken quite a different approach from Tasmania, choosing to follow a staged approach, implementing one component (such as a new drafting tool or a new website) at a time. Victoria is different again with its LDMS system.
The solution in each jurisdiction is related to local conditions and processes, the time at which the work was undertaken, and of course budgetary considerations. No one system or approach is superior. The New Zealand solution is also unique for these reasons, and involves a range of system components that has not been configured or integrated in the
same way anywhere else to my knowledge. This is also a reflection of the state of technology at the time that the New Zealand system components were selected, and the desire to ensure that the New Zealand system is adequately future-proofed.
I now want to explore in more detail some of the issues that have been relevant to, or have arisen in the course of, the PAL project. These are:
• the basis on which the project was approved
• the sale of the Government Printing Office
• the complexity of the New Zealand legislative process and the particular challenges this poses for the design and implementation of an integrated drafting, publishing, and reprinting system
• the requirement to produce paper output.
I will then explore very briefly some matters that go hand in hand with access to legislation for a drafting office or from a drafter’s perspective.
Justifying the Project
The PAL project is sponsored and funded solely by the New Zealand Government. As with any other publicly funded government project, it was necessary to present a case to the New Zealand Government to gain approval and funding.
The political landscape that existed at the time the project was first conceived would not have appeared particularly conducive to the idea of the state entering the “marketplace” with respect to the provision of legislative materials. The GPO, a state agency that had existed since
1864,12 had been privatised in the late 1980s. And the private sector had made a considerable investment in the production of legislative materials, including comprehensive electronic databases of New Zealand legislation, for the local market. One commentator, in a paper presented to the Law via the Internet conference in 1999,13 remarked that “New Zealand has probably crossed the threshold of the ‘free market’ too completely now for an artificial subsidised service to be reintroduced.”
There are two points to be made here. First, public access to legislation
is not a matter that can or should be left to the private sector.14 Second, the matter is not primarily an economic one.
As to the first point, up-to-date legislation that is easily accessible and comprehensible to the public may be regarded as part of the basic infrastructure of society, as essential as roads or a reliable telecommunications
system, and without which the everyday functioning of society is more difficult. Does relying on the private sector make legislation as widely available in electronic form as it should be? It may suit the needs of the legal profession, which can generally afford to pay, but does it meet the needs of the general public for access to “their law”? Does it simply entrench the position of the legal profession as a sort of “priestly caste”, the interpreters of the law for those unable to access it for themselves?
Further, can the state afford to run the risk that private sector providers might some day decide to pull out of the market, leaving the state, and therefore the public, without any central electronic database of legislation? And is it satisfactory for the only official version of legislation to remain in printed form, and for legislation in electronic form to remain unofficial, unable to be relied on as authoritative?
In one sense, the PAL project is simply the state taking advantage of advances in technology to make its laws available to its citizens in the most efficient and effective way possible. It is using the appropriate medium to make legislation available, as it always has.
The second point really flows from the first. To what extent, if any, does
a project to improve public access to legislation have to satisfy economic measures to justify the investment of public money?
That it is necessary to enable the government to fulfill a basic duty might be regarded as sufficient. But government agencies are used to weighing the merits or desirability of government initiatives on the strength of robust cost benefit analyses. In most cases, such analyses are probably necessary and appropriate. It is possible to identify financial benefits and cost savings through the introduction of new technology to the drafting, publishing, and reprinting processes. There would be cost savings in current subscription costs that government departments and agencies pay to private sector electronic publishers. There are also cost savings to the government and parliament through reductions in the costs of printing and publishing.
Further, there are undoubted, although unquantifiable, community benefits, including:
• efficiencies arising from improved access by the public, librarians, the courts, the legal profession, members of Parliament, and others involved in the legislative process, to accurate and up-to-date official versions of legislation
• improvements in the efficiency of the drafting process, and the quality of draft legislation
• improvements in the legislative process, for example, from the ability to produce versions of bills that show the effect of proposed amendments.
There are also benefits to the legal publishing community. The availability of an official source of electronic data should result in efficiencies in the processes used by legal publishers to produce their commercial products, and incentives to provide better value-added products and services.
It might be possible to establish that the quantifiable benefits from the project would exceed the costs in the long term. However, these benefits, savings, and efficiencies do not really do justice to the fundamental imperatives that justify the project. In the end, the project is not about savings or efficiencies. The basis of the project is fulfilling the State’s obligation to make its laws available to its citizens. This is primarily a public interest issue, rather than an economic one.
The business case for the PAL project 15 was not argued on the basis of
a cost benefit analysis, but it took some lengthy discussions with the more fiscally minded parties to the process to establish the merits of the public interest argument. In the end, the PAL project was not approved on the basis of a detailed discounted cash flow analysis nor of a financial rate of return to the Crown. It was accepted as a true “public interest” project. Very few public sector projects are approved on this basis. I hasten to add that this does not imply the absence of economic or financial discipline or constraints on the project!
PROVIDING LEGISLATIVE DATA TO LEGAL PUBLISHERS AND OTHERS
The public interest nature of the PAL project subsequently became relevant to another issue—the basis on which data from the new PAL systems should be made available to legal publishers and others, including AustLII. The New Zealand Government has established a framework of principles for determining whether or not government agencies should charge for government-held information.16 Those principles require agencies to consider such issues as whether or not the dissemination of the information
is desirable for a public policy purpose, the feasibility of recovering a charge, and the purpose for which the information will be used.
After taking into account those principles, the fact that the rationale for the PAL project is based on the public good rather than on any quantified rate of return to the Crown, and that the project has not been approved or funded on the basis of any expected revenue opportunities, the PCO determined not to charge legal publishers or other recipients of legislative data any royalty or other fee for the data, or for the use of the PAL solution to download the data.
In a sense, the PAL project is therefore like the 1931 Reprint project—a joint venture between the Government and legal publishers. The PAL project builds on the work undertaken by the private legal publishers such as the Knowledge Basket, Brookers, and LexisNexis in establishing the viability of electronic legislative products in the New Zealand marketplace. Key inputs into the project are the electronic database of New Zealand legislation that the PCO is acquiring from Brookers, along with Brookers’
legislative DTDs. And the proceeds of the project, an authoritative source of New Zealand legislation, will be freely shared with anyone, including legal publishers.
Sale of the Government Printing Office
Before exploring the impact of the complexity of the New Zealand legislative process on the PAL project, I mention another environmental factor that I consider relevant. It is the arrangements for the printing of New Zealand legislation.
The GPO was sold in 1989. I make no comment on the wisdom or otherwise of the sale. It was a political decision. From then on, New Zealand has relied on a private contractor, Legislation Direct, to provide prepublication and printing services for legislation. That contractor has provided those services exceptionally well and I certainly intend no criticism of it.
However, the sale had two relevant consequences.
New Zealand started down the path of improving public access to legislation without the state owning a comprehensive database of legislation—unlike Australian jurisdictions, which owned and had access to all legislative data that was correct, comprehensive, and properly formatted. New Zealand has had to buy a database of its own legislation from a private publisher. The database has not been produced by the PCO, and has not undergone the checking processes employed in the production of the official version. This is not to say that the data that the PCO is acquiring
is not of a high standard. But it was produced by a non-official agency for
a different purpose (a commercial product). Official versions of legislation must be formatted to strict specifications and the content must be as accurate as is reasonably possible. These factors introduce complexities when it comes to reformatting the data for use in drafting and publishing legislation, and require extensive quality assurance processes before the data can be made available as an official version.
The second consequence of the sale of the GPO was the introduction of a distinct organisational separation between drafting legislation and the technology employed in prepublication and printing of legislation. I think drafters in the PCO had a much greater appreciation of the technology employed in prepress and printing work in the days of hot metal than when computer typesetting was introduced. Although the PCO and Legislation Direct did subsequently collaborate on a system that enabled drafters to produce drafts on a word processor, and to send these electronically to Legislation Direct for typesetting, the system at the PCO end employed
a reasonably simple user interface using WordPerfect customised with
a limited number of macros. The Legislation Direct end was very much
a “black box”, and it was a system that was developed for a commercial purpose and considered to have a commercial value.
This meant that the PCO did not begin the process of improving public access to legislation with an intimate, or even a passing, organisational knowledge of the technologies involved in printing and publishing legislation. Drafting offices in Australia had this knowledge in house. They knew their own data and their own processes. This has meant a steep learning curve for the PCO and Unisys. Further, this situation introduces some rather complex dynamics when it comes to gaining access to that technology, and the knowledge of the prepublication and printing processes that surround it. Both are the intellectual property of a commercial organisation, and arise in the context of a project that will eventually make the prepublication component of that organisation obsolete.
The Nature of the New Zealand Political Process and its Impact on PAL
I identified features of the New Zealand legislative and political processes that are part of the landscape against which PAL has had to be implemented. In this section of the paper, I want to show why and how they are relevant and the difficulties they present in implementing new technology.
PROPOSING AND PRESENTING AMENDMENTS TO BILLS.
New Zealand bills are subject to a lot of changes as they progress through the Parliamentary process. Two issues arise in this context. How proposed changes are presented to select committees and the House for consideration, and how changes that have been adopted are presented. They are also relevant to the issue of making the legislative process more
“user friendly” and transparent, and facilitating public understanding and involvement.
I deal with the second issue, the presentation of adopted amendments, first. For many years, it has been the convention to produce successive versions of bills that show, by various typographical devices, the changes that have been made at each stage. And past practice has been to show every change at each stage cumulatively, so that the history of the changes to a bill can be tracked right from its introduction to the time it emerges from the committee of the whole House stage ready for third reading and assent. In some rare cases, this has meant that a bill has had to show changes made to it at each of four stages, distinguishing between each set of amendments. This makes for a rather complex method of representation.
Because amendments can occur at various different stages, which may vary in sequence between different bills, particular typographical conventions cannot invariably be associated with particular stages. The first level of changes cannot necessarily be associated with the select committee stage, and the second level with the committee of the whole House stage. Sometimes these sequences are reversed, for example if a bill
is amended for the first time only when it reaches the committee of the
whole House stage, and is then referred back to a select committee where
it is amended again. And it is perfectly possible for a bill to be amended by a select committee, reported back, re-referred to a select committee, and amended again. In that case, both sets of amendments are made at the same legislative stage.
The second issue, presenting proposed changes, also has a long history. Until recently, proposed amendments were presented in the form of a separate document that described the proposed change in much the same way as an amending enactment. At the select committee stage, the document was called a “slip of amendments”, and was usually prepared by the PCO drafter responsible for the bill. At the committee of the whole House stage, the document is called a “Supplementary Order Paper” or
“SOP”. In Australia, they are generally known as “Amendments in
Committee” or the like. At the committee of the whole House stage, there
is also the opportunity for members to propose amendments by way of
“table amendments”, which are not set out in an SOP and of which no prior notice need be given.
Neither slips nor SOPs are particularly user friendly documents. They are complex to draft, particularly if the amendments proposed affect many individual words or phrases, rather than replacing whole provisions such as sections, sub-sections, or paragraphs. They are even more complex for departmental officials and members of Parliament to follow. To understand the effect of each individual amendment, and the cumulative effect of amendments, one has to piece together the slip and the bill to get an idea of what the bill would look like if the amendment is adopted. The task
is even more difficult in the case of slip amendments to a bill that itself amends another enactment, because the user has to piece together the slip, the amending bill, and the enactment amended.
REVISION TRACKING
These difficulties were raised by the Justice and Electoral Select Committee in its consideration of the PCO’s Estimates for 2000/01. The select committee urged the PCO to implement changes that would make PCO drafts of proposed amendments more accessible to members of select committees. As a result, the PCO worked with Legislation Direct and the Office of the Clerk to implement a new system, called “revision tracking”, for presenting proposed amendments. Using a convention similar to the
“track changes” feature in Microsoft Word, drafters make changes directly into a copy of the bill as introduced, with deleted text being shown as struck out, and inserted text shown as underlined.
Quality assurance procedures, including a facility to strip the amendments from a revision-tracked version and compare it against the version of the bill as introduced, were also put in place to ensure that drafters did not inadvertently make changes (known affectionately as
“rogue amendments”) that were not highlighted in the revision-tracked
version. That is because, unlike track changes in Microsoft Word, which operates automatically as the author edits the document, the revision tracking procedure requires the drafter or his or her secretary to apply a style to each individual amendment that then highlights the change. It is therefore possible to make a change without it being highlighted.
Most amendments being considered by select committees are now reviewed on revision-tracked versions, and the initiative has been very well received by members of select committees. A consequence has been that officials in the instructing department and in other agencies consulted on proposed changes to a bill before a select committee can also see more clearly the effect of the proposed changes.
While revision-tracked versions are currently produced for consideration by select committees, bills as reported back revert to the pre-existing conventions for showing amendments.
REVISION TRACKING AND PAL
The combination of revision tracking at the select committee stage and quite different typographical conventions for showing amendments in printed public copies of bills at all stages presented some interesting challenges, but also some real opportunities, when it came to deciding how changes to bills during their progress through the House would be handled in the PAL solution.
The revision-tracking initiative was a clear success with select com- mittees, but the benefits of the initiative were restricted to members of the select committee and officials. The existing typographical conventions for marking up amendments were also acknowledged as being rather user unfriendly, particularly where several layers of amendments were presented, and there was a desire to see if this complexity could be reduced. However,
it was also acknowledged that the presentation of the whole history of a bill in this way was of value.
Added to the mix were some technological limitations arising from the requirement for the new PAL systems to be able to produce material that could be presented both in printed form and on a website. The typographical conventions could not easily be represented in HTML on a website, particularly where different layers of amendments were present. To add further complexity, changes to Standing Orders as a result of a review undertaken by the Standing Orders Committee in 1995 introduced the ability for select committees to report back bills with majority as well as unanimous amendments.17 Before that change, select committees could not reflect minority opposition to proposed amendments in the changes themselves, although the narrative report could indicate that members
held differing views.[18]
The change was a consequence of the introduction of mixed member
proportional representation into the New Zealand Parliament. The Standing Orders Committee considered that there could be a greater desire in an MMP Parliament for dissenting views to be known. It became necessary to introduce changes to the typographical conventions used to show select committee amendments, in order to distinguish between unanimous and majority amendments.
There were therefore various competing factors to take into account in deciding what to do in the new PAL system. After a very detailed investigation of the options, and some inspired lateral thinking, by the Office of the Clerk in collaboration with Legislation Direct, a compromise was reached:
• The revision-tracking convention of showing inserted text by way of underlining, and deleted text by way of strikeout, would be adopted for all amendments at every stage of a bill’s progress through the House.
• In all but the most exceptional cases, only the most recent changes would be shown in each successive version. This means that when a new version of a bill that already has changes made at a previous stage is produced, the previous changes are “accepted” (not shown separately) and the most recent changes are entered into the “clean” copy. For example, if
a bill that has been amended by a select committee is amended again in the committee of the whole House, the select committee amendments are not identified as amendments. Only the amendments made in the committee of the whole House are identified.
• In exceptional cases, two levels of change would be shown. This would occur, for example, where a bill is referred back to a select committee for reconsideration after it has had its committee stages (where it has been amended), and it is desirable for members to be able to see both the committee of the whole House amendments and any subsequent select committee amendments, so as to assist their deliberations.
• Plain roman text would be used for unanimous select committee amendments, and bold text for majority amendments.
The decision to adopt one level of markup as the default position, with two levels in exceptional cases, was based on the technical difficulties in producing underlined and struck-out text beyond two levels (double underlining and double strike through), and the difficulty in reading text that is underlined or struck through with three lines or more.
These changes introduce continuity of styles for marking up amendments through the entire legislative process, including when select committees deliberate on proposed amendments.
Although the previous advantage of being able to track the entire legislative history of a bill from the most recent version is lost, this is not usually a matter of great importance to debate in the House. The acceptance of amendments from a previous stage so that they are not highlighted, before amendments from the latest stage are input and highlighted, is also consistent with the effect of each stage in the House.
Amendments are actually “accepted” by the House when each reading is concluded, and form part of the bill from that point on.
IMPLEMENTING REVISION TRACKING IN PAL
The adoption of the revision-tracking style of showing amendments, and the complication of unanimous and majority amendments recommended by a select committee, had implications for the PAL solution and the appearance of documents produced from it.
As with the current revision-tracking system, the new PAL systems have had to incorporate several features to support the procedures of the House, and provide quality assurance.
The revision-tracked version produced for deliberation by a select committee shows all amendments in the same style. The distinction between unanimous and majority amendments does not arise until the select committee votes on the amendments. Once it has done so, a further version has to be produced that shows unanimous and majority amendments. These can occur quite randomly throughout the bill, as they depend entirely on how the voting has gone. PCO staff are required to work through the bill, identifying the places where the distinction needs to be made, and changing the markup. With a large bill, the work required
is obviously quite significant.
A set of special tools was developed. A user can choose to accept amendments by selecting from the options of “accept unanimous”, “accept majority”, or “accept manually”. If all of the amendments are unanimous or by majority, the user selects from the first two options, and the tool runs across the bill and changes all amendments to the required category.
If not, the user chooses the manual option, and the tool then runs across the bill and takes the operator to each place where there is an amendment. The operator is then able to choose whether to mark the amendment as unanimous or majority.
Again as with the current revision-tracking system, in the new PAL systems the highlighting of inserted or deleted text depends on the application of specific markup. There is therefore the danger that text can be inserted or deleted but not marked. If these “unauthorised” changes are not picked up before the bill progresses to its next stage, then amendments not voted on or endorsed by the House are introduced. To enable drafters and Office of the Clerk staff to check for these rogue amendments, a special tool was developed to strip out all marked up amendments from a copy of the most recent version. That stripped version is then compared with a copy of the previous version agreed to by the House, and any differences are highlighted.
A further complication can arise at second reading. At the conclusion of the debate, majority amendments are put to the House as a separate question, and can be voted down. If this happens, and the bill is read a second time, it has to be reprinted as if the majority amendments had
not been proposed. This means the system had to be designed so that amendments could be reversed after the second reading.
The need to be able to distinguish between unanimous and majority amendments at the select committee stage posed an interesting problem.
Unanimous amendments are to be represented by normal weight
(roman) underlining and strike through, and majority amendments by bold underlining and strike through. The authoring tool did not have a native capability to represent the weight of the underline or strike through independently of the weight of the font used for the text (e.g. it could not put roman underlining on text that was in bold). A set of additional fonts had to be created to provide this capability.
The need to be able to show two levels of amendment in exceptional cases also introduced problems. The technology in the new PAL systems can handle one level relatively straightforwardly. The single level markup of underlining and strikethrough can be reproduced in printed documents, and in the HTML and PDF versions that will be made available on the new PAL website. However, it was not possible to reproduce two levels in the HTML versions on the website, nor to distinguish in the HTML between unanimous and majority amendments through the use of roman and bold mark up. All amendments in an HTML version look the same regardless of whether they are unanimous or majority, or at what stage they were made. The PDF version of the bill on the website does not have the same limitations.
A special explanatory “key” to the mark up had to be developed to point out to users of the HTML version that it is not possible to distinguish between different types of amendments in this format, and tell users of the HTML version to view the PDF version if they wish to see different types of amendment (if any).
REVISION TRACKING AT THE COMMITTEE OF THE WHOLE HOUSE STAGE
I mentioned the current practice of presenting proposed amendments for consideration at the committee of the whole House stage by way of
a Supplementary Order Paper or SOP. These describe the amendment proposed, by reference to the page and line number where the current text appears.
The difficulties trying to work out the effect of an SOP are the same as those that led to the demise of slips of amendments at the select committee stage and the introduction of revision tracking. However, it is even more difficult to work things out at the committee of the whole House stage. At the select committee stage, there was usually only one slip, prepared by parliamentary counsel at the committee’s instruction. At the committee of the whole House stage, there can often be several or many SOPs. As well as a Government SOP, there can be SOPs from different Opposition parties taking different policy approaches. If the bill is a conscience issue,
which means that members have a free vote unconstrained by party lines, then there can be a plethora of SOPs from individual members.
We did give consideration at an early stage in the PAL project to a modified form of revision tracking for the committee of the whole House stage. Several options were considered:
• When an SOP was tabled, the PCO would then produce a version of the bill in a revision-tracked form, showing the amendments proposed in the SOP. The revision-tracked version could then be made available online for members and the general public to view and consider.
• Instead of drafting the SOP first, and then incorporating the proposed amendments in a revision-tracked version, the proposed amendments would be drafted in revision-tracked format directly into the latest version of the bill. This version would then be available for members and the public to view and consider. The system would be set up so that
it would automatically produce an SOP from the markup, in much the same way as the Tasmanian EnAct drafting system.
It was assumed that the House would still require proposed amendments to be formally moved by way of SOP. The revision-tracked version would be available simply to assist members and others to understand the effect and implications of the proposed amendments. It would of course be open for the House to accept proposed amendments set out on a copy of the bill in revision-tracked format.
Obvious complications would arise from these options where there was more than one SOP. While it might be possible to include multiple sets of proposed amendments in one revision-tracked version, perhaps by using different colours for different members, the complexity is obvious, especially where the amendments conflict. But if different sets of proposed amendments were set out in different revision-tracked versions, it would be very difficult to work out their interrelationship.
Printing costs are also an issue. If printed revision-tracked versions were produced instead of SOPs, there could be substantial costs in the case of a large bill. The use of colour printing would also substantially increase costs.
In the end, it was agreed not to try to introduce a revision-tracking system at the committee of the whole House stage. It was felt that it would introduce unnecessary technical complications for the project, and present administrative issues that could really be considered only in the context of
a more general examination of House processes. Further, it would be wise to defer any such initiative so as to take advantage of any lessons learned from the introduction of revision tracking at the select committee stage. However, it is possible to use the PAL revision-tracking system in the
case of amendments proposed in some SOPs. As yet another illustration of the complexity of the New Zealand legislative system, it is possible for an SOP to be prepared and referred to a select committee for consideration in conjunction with the bill to which the SOP relates. This tends to happen
when the Government wishes to introduce policy changes to a bill, and wants to obtain public input into the consideration of those changes. A bill that has already been to a select committee may be referred back so that the committee can consider the SOP with the bill.[19]
So that the select committee can better understand the effect of the
SOP, it will be possible in appropriate cases for the PCO to prepare an
“advance” revision-tracked version of the bill showing the amendments in the SOP. A similar thing has been done from time to time in the past, where a proof “as reported from the select committee” version of the bill has been prepared with the SOP amendments taken in. My recollection
is that this was done in the case of the Matrimonial Property Amendment bill 1998, when an SOP of 82 pages, making substantial changes to the principal act, was referred to the select committee. The PCO prepared a version of the act in a reprint format, showing how it would look if the amendments in the bill and the SOP were adopted.
SUMMARY
I have gone into the issue of revision tracking because it illustrates that the complexity of the legislative process has raised quite difficult issues, technically and practically, in the PAL context; and that the PAL project has been a useful vehicle to introduce changes that, hopefully, will make the process more accessible and easier to understand.
A further feature of the new PAL website should make the legislative process easier to follow. It has been designed so people can more easily track the progress of bills, and how they change along the way. Each bill will have a “home page” listing every version as it progresses through the parliamentary process, and its status. Any SOPs proposing amendments will be listed on the home page. A link to the Office of the Clerk website will let the user check whether public submissions on the bill can still be made.
When the bill is finally enacted, the resulting act will be shown. If the bill has been split up and passed as more than one act, each will be shown.
All this information will remain permanently on the website. Those wishing to trace the development of a legislative proposal will be able to do so very easily.
These features are a further advance on the introduction of legislative history material on bills and acts as part of the changes to the format of
legislation introduced in 2000.20 Each bill now shows the stages through which it has passed, and the respective dates.
The new website will also have a simple “point-in-time” capability. A new version of each enactment will be created each time it is updated, and all previous versions retained on the website. This will enable users to view the enactment as it was during a particular period. It is not as sophisticated as the point in time features on the Tasmanian website, but we hope that this feature will be helpful to those who want to trace the development of a piece of legislation over time.
THE IMPORTANCE OF PAPER
It is very easy, in the context of discussions on improving public access, to focus on the huge benefits that electronic delivery of legislative data brings. That there are huge benefits is undeniable. However, it is easy to overlook the continuing importance of printed legislative materials, both to the public and in the context of the legislative processes.
In New Zealand, the Parliamentary processes relating to legislation are entirely paper based. On the introduction of a bill, the member in charge must provide printed copies to the Clerk of the House for circulation. A bill must be reprinted after being amended or divided, by a select committee or at the committee of the whole House stage (except bills passed under urgency or as approved by the Speaker in respect of any minor textual amendment). If a bill is reprinted, the member in charge must provide printed copies to the Clerk. It is not available for debate until copies are circu- lated to members.21 Although these rules have been expressed in this form only recently, they reflect long-standing practice and general expectations. Amendments to a bill during its passage through the House relate to
the bill in its printed form. Line numbers are printed on bills to facilitate reference to specific provisions, and proposed amendments in SOPs are drafted by reference to page and line numbers.
A bill is passed into law by virtue of the Royal assent given on the printed assent copy. The two assent copies signed by the Governor-General, the Administrator, or sometimes by the Sovereign herself, are the ultimate and original source document for the act of Parliament. The “statute book” is both conceptual and tangible given that currently only printed copies of acts, in both pamphlet and bound volume form, have any official status in New Zealand as correct statements of the law.
These things are highly relevant in the context of a project to improve access to legislation. The ability to produce printed copies in a timely way, and the quality of the printed output, are important measures of its success.
TIMELINESS
Timeliness in the delivery of printed legislation is critical. The New Zealand Parliament has a very long sitting season. Sittings typically begin in early February, and last until early to mid-December. There are breaks of one or two weeks throughout the year, but select committees often continue to meet when the House is not sitting. This puts sustained and unrelenting pressure on the PCO, the Office of the Clerk, and the Inland Revenue Department drafters, and the systems supporting their operations.
The pressure that arises from the lack of respite for personnel and systems is compounded by the demands from a legislative process that provides many opportunities for change to bills as they progress. They cannot be pre-baked and left to cool until Parliament is ready to rubberstamp them. The ingredients are being mixed, and some still added or removed, up until the last minute.
And the short order cooks have to work fast. Politicians have no patience when it comes to the production of printed copies of bills. A Minister intent on getting his or her legislative measure through the House will not accept any delay on account of printing difficulties. The preparation and printing of legislation is a demand-driven process, and the demands, when they are made, are very great.
This means that systems need to avoid unnecessary or inefficient processes, and that automatic processes are to be preferred over manual interventions where possible. The necessity to tweak and nudge, if this introduces delay, is not desirable. A single preparation process that produces all the different outputs, both printed and electronic, is also desirable if expectations of timely access to print and electronic versions of legislation are to be met. This is why the new PAL systems are built on an XML-based structured mark-up system. An XML-based system has the capability to render content automatically into several output formats—in the case of the PCO systems this is PDF for print, and HTML and PDF for website delivery. Any necessity for manual tweaks and changes undermines
a fundamental benefit of using XML-based technology.
Since several versions of a bill are often produced during its passage through the House, it is of course important to ensure that the right version
is printed at each stage. For this reason, the new PCO systems incorporate
a strict version control component. The new systems also facilitate the production of the right version at each different stage by incorporating a life cycle component that mirrors the logical sequence of steps that bills usually follow. The promotion of a bill to the next step in the life cycle invokes the style sheet associated with that stage to produce the correct format required at that stage.
However, apparently logical steps in the public progress of a bill often belie the complexities of the practical steps taken behind the scenes to ensure that it reaches its destination on time. These complexities have to be factored into the design of the system.
The production of advance proofs is a good example. If there is pressure to get a bill passed, and therefore have an assent copy ready for signature by the Governor-General, the Office of the Clerk may require the production of a proof assent before a bill has even passed its committee stages. A proof will have to be prepared that assumes that the amendments in any Government SOPs currently proposed for consideration at the committee of the whole House will be adopted. The document management system, as well as providing a tight system to ensure that the right version gets printed, also needs to allow for production of a version that is, strictly speaking, out of sequence. Maintaining a tidy system of version control
is also complicated by the need to accommodate the splitting up of bills at various stages.
QUALITY
Just as important as timeliness is quality, because of the constitutional importance of legislative documents, the purpose of legislation in conveying meaning, and the nature and requirements of the legislative process.
Acts of Parliament encapsulate the legislative expression of the highest lawmaking body in the land. The legislation cannot claim quite the same parentage, but in many ways its impact is more direct since it prescribes the detailed rules foreshadowed in the broad policy of the acts that authorise it. Laws also remain important for a very long time. Even repealed enactments remain relevant to matters that occurred in the period during which they applied.
The format in which legislative documents is produced, and the typesetting and similar standards achieved in their production, should reflect their status as “the law of the land” and their potential longevity. Quality in format and layout are also important for bills, acts, and other legislative documents. Legislation conveys meaning, and it is important
that meaning is conveyed accurately and unambiguously.
Section 5 of the Interpretation Act 1999 provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose, and that the matters that may be considered in ascertaining the meaning of an enactment include the indications provided in the enactment. Examples of those indications are preambles, the analysis, a table of contents, headings to parts and sections, marginal notes, diagrams, graphics, examples and explanatory material, and the organisation and format of the enactment. Errors in format and layout can therefore affect the interpretation of an enactment, and can be costly if litigation is required to settle the meaning of an enactment, and if Parliamentary time and resources are required to correct the error.
Accuracy in format and layout are also important during a bill’s progress through the Parliamentary process. Clarity in meaning is essential so that members, officials, and the public can understand the effect of the legislation and any proposed changes to existing legislation. For the same
reason, changes that occur during a bill’s progress also need to be captured and presented clearly and accurately. Proposed changes set out in SOPs also need to be clear and unambiguous, so that members know what they are voting on. Further, changes to a bill during its passage may be relevant in the subsequent interpretation of the Act, since the courts may consider Parliamentary history in ascertaining meaning.
A further factor relevant to the legislative process is time. Parliamentary time is valuable, especially to the Government when it is seeking to implement its legislative program. Errors and ambiguities can give rise to argument and lengthy debates. An opposition seeking to delay a measure can legitimately seize on any matter that provides an opportunity to question the integrity of the measure under consideration or to raise procedural issues. Ministers, quite legitimately, do not look kindly on delays caused by such matters.
SUMMARY
The principal objective of the PAL project is improving public access to legislation. The project is not about business process re-engineering or improvement, nor about introducing new technology for its own sake. However, the success of the project will not only be measured by the benefits that it provides to the public in terms of better access to legislation and the legislative process. It will also be judged by how well the backroom systems and processes work for those who have to use them. This is equally true for the drafting process. The front end requirements cannot be based on a drafting system so difficult to use that productivity (meeting the Government’s and Parliament’s demands for legislation) is sacrificed for improvements in public access.
The current processes used by Legislation Direct for prepublication and printing are based on mature systems and technology developed over many years. Legislation Direct staff are very familiar with New Zealand legislation and their own technology. The high service and quality standards achieved set the benchmark against which the PAL systems, with their new technology, will be judged.
There have been some format and layout problems in the course of the PAL project. We are still working through these with Unisys. It is essential that the systems used can be relied on to produce accurate, high quality, and timely print renditions of legislation in draft and final form. The ability to do so is crucial to the PAL project’s success. The new PAL systems can be deployed only when there is absolute confidence that they will be able to deliver.
The Utility of PAL
Those of us involved in improving public access to legislation have no doubts about the need to make legislative materials more readily accessible. However, some find it hard to believe that the public really is interested
in getting access to this material. It is therefore quite interesting to look at what has happened since the PCO launched an interim website on 9
September 2002, through an arrangement with Brookers and Unisys. Statistics provided by Brookers indicate that overall activity almost tripled over the period 9 September 2002 to 30 September 2003. The total number of hits on the website per month increased from around 816,000 in September 2002 to over two million in September 2003. Hits peaked at 4.2 million in July 2003. The total number of page requests per month increased from 183,000 to 227,000 over that period, peaking at 723,000 in July 2003. The total number of visitors to the website per month increased from nearly 36,000 to over 109,000.
The number of visitors to the interim website is therefore still increasing, although page requests and home page requests are now starting to level out. This could be attributed to the fact that the website is now receiving a number of repeat visitors looking for the same or changed information.
These statistics provide valuable information on likely demands on the new PAL website. They also reflect extensive domestic and international interest in New Zealand legislation from a wide range of users.
Further Issues
Comprehensive analysis of the whole host of issues that arise out of the process of improving public availability of legislation in an electronic form
is not possible in this context. But I do want to examine briefly a few issues that are particularly relevant to drafting and a drafting office:
• The legal status of electronic versions. Different approaches have been adopted in Australia. For example, the Tasmanian Legislation Publication Act 1996 provides that the authorised versions of Tasmanian legislation are the versions that appear on the electronic database of legislation maintained in the Tasmanian Office of Parliamentary Counsel. The Chief Parliamentary Counsel may approve the production of copies of enactments from the database in electronic or printed form. In the A.C.T., until recently, authorised versions were those viewed electronically on the A.C.T. Legislation Register website or printed by the Government Printer. Recent changes now mean that users can download and print authorised versions of legislation directly from the A.C.T. Legislation Register website. New Zealand intends to make its electronic versions official after the database acquired from Brookers has been put through the PCO’s own quality assurance processes. We have yet to decide on an appropriate approach.
• Access to historical material. The new PAL database will contain only acts and regulations that are in force at the date on which the new systems go live. Historical material will be built up after that date, since nothing will ever be removed from the database. There are already indications that people would like access to material not in force at the
go-live date. This includes material that, although technically repealed or revoked, may still apply in some circumstances under a transitional arrangement. Coverage for accidents occurring under a series of now repealed acts relating to accident compensation is a good example. We may have to provide access to some of this historical material on a selective basis over time.
• The boundaries between basic public access to legislation, and value- added features. The PAL systems will provide only “plain vanilla” access, leaving the commercial legal publishers to provide value-added features such as links to cases, commentary, and the like. I am sure that the boundary between the two will blur over time, as the public demands more features in the officially provided version.
• Impact on private sector publishing. It is also possible that the availability of an official source of New Zealand legislation will affect the way the private sector publishes its legislation-related materials. There is scope for at least the electronic products to simply link to the official legislative materials, rather than incorporate them, which might make maintaining currency easier.
• The problem of access to tertiary legislative materials. The PCO decided very early on that the PAL project would cover only the legislative material that the PCO publishes—bills, acts, and statutory regulations. There is of course a plethora of tertiary level subordinate legislation produced by other Government agencies and independent bodies. Access to this is haphazard, but much of it is significant to the public. The Regulations Review Committee has made recommendations about improving the quality of, and access to, this material.22 The PAL project will, I am sure, provide an impetus for further work in this area. Some of the technology developed as part of the PAL project (such as the authoring tool, the DTDs, and the website) could be utilised by other agencies in their own processes to improve access to tertiary legislation.
• Impact on the drafting process. The presentation of legislation in electronic versions will also need to be considered in the drafting process. There are some devices that do not translate well into the electronic medium, or make it more difficult to use. The use of graphics
is an example. They often have to be represented as nontextual items and, unless significant data is entered by way of Alt Text, they are not picked up in searches. Drafters can no longer limit their consideration of presentation issues to how things look on paper.
• Interactive forms. A significant amount of subordinate legislation prescribes forms, such as applications for passports, court forms, etc. Initiatives in e-Government to facilitate interaction between citizens and government agencies may require consideration to be given to making these forms interactive, so that they can be filled in and submitted directly to the appropriate agency. This would influence the way these forms are drafted, and the way in which they are made available electronically in the new PAL systems.
INCREASING PUBLIC INTEREST IN LEGISLATIVE MATTERS
The provision of free public access to legislation provides the opportunity to increase public knowledge about legislation, the Parliamentary process, and drafting. Drafting offices are traditionally backroom operations, about which the public has, until recently, known very little. The only time we tend to hit the headlines is when there is supposedly a drafting error, or when difficulties are encountered in trying to implement measures to improve access to legislation.
One impact of the PAL project has been to raise public interest in legislation, the Parliamentary process, and drafting. The PCO has suddenly developed a much more immediate and direct relationship with users of legislation. We have had to respond to a large number of public inquiries relating to the interim website, and other legislationrelated matters. We have therefore employed a communications adviser, to ensure that adequate systems are in place to respond to these inquiries.
We have also included on the new PAL website a glossary and a series of frequently asked questions to explain some of the more basic legal and legislative terms, and provide a simple guide to how laws are made. I am sure that this is something that we will need to build on and develop in the future.
REPRINT POWERS
It is likely that improved public access to legislation will have significant consequences for the powers conferred on the PCO under the Acts and Regulations Publication Act 1989 to make changes to enactments in the course of producing reprints. At present, these powers are rather modest, essentially limited to changes in style and format so that enactments can be reprinted in a style and format that are consistent with current drafting practice. These powers are in addition to the provisions of the Interpretation Act 1999, which provides for such things as updating references to repealed enactments with references to the enactments that replace them.
Of course making legislation more readily available doesn’t make it more intelligible. And the more that it is exposed to the public, the more likely it is that there will be pressure to make it easier to understand. For existing legislation, the only way to do so at present is by way of statutory amendment. It is unlikely that precious Parliamentary time could be found for amendments whose only justification is to improve readability. Some
Australian jurisdictions have much wider reprint powers than New Zealand, for example, allowing changes to archaic or sexist language.23 It may be that wider reprint powers need to be considered in New Zealand.
There are also some drafting devices that are not particularly user friendly. One of my pet hates is commencement provisions that require the reader to calculate the date of commencement. For example, a provision
is expressed to come into force on the twenty eighth day after the date of notification in the Gazette, or three months after the date of assent. Certain calculations rely on knowledge that a reference to a month means
a calendar month. There are practical reasons for drafting this way, because of uncertainty over when an enactment will be passed and assented to, or submitted to the Governor-General for signature. Once the enactment
is passed or made, it is of course easy for reprinting staff to calculate the relevant dates. One option here would be to confer a reprinting power so that indirectly defined commencement dates can be replaced with actual dates.
FORMAT OF REPRINTS
The format of reprints is another matter affected by improving public access to legislation. In the past, the principle was to provide a significant amount of editorial material and textual clues to legislative history. This included references to cases, the common law, and English law, and the use of square brackets around new or substituted material. I think the rationale behind this approach was that users were most likely to be lawyers undertaking legal research.
New Zealand has recently changed its approach in this area. We now aim simply to present a current statement of the law, rather than provide any editorial comment. We no longer use square brackets to show where amendments have been made, and we rely on the presence of history notes to alert users to the origin of amendments. The approach of producing
“clean” versions of the principal enactment, as if it had been enacted in that form, is intended to facilitate access by a wider range of users. This approach, combined with recent changes to the format of legislation, should help to make reprints much easier to read.
CLEANING UP THE “REGULATION BOOK”
I referred earlier in this paper to the very few reprints of regulations produced since 1936, by contrast with the large number of reprinted acts. Acts tend to attract a higher priority for revision and reform than subsidiary legislation. There can often be a fair amount of old material lying around to trip people up. Increased public access to legislation increases the danger that those without a good understanding of the statute book will be misled by their ignorance of some of its more arcane areas.
It can be argued that improving public access to legislation imposes
a duty on the state to ensure that there is an adequate process to clear away the dead wood, so that the public can read and understand the law confident that they will not be caught in the “legislative thicket” by old and outdated legislation, especially regulations. There have been periodic attempts to clean up the “regulation book”. A good example is a report by the Regulations Review Committee on all regulations in force at 14
November 1988.[24]
Some countries have adopted a more brutal device to try to ensure that this happens, through the automatic expiry (or staged repeal) of regulations after a certain period. New South Wales has such a system under the Subordinate Legislation Act 1989. Improved public access to legislation may lead to calls for the introduction of such a device in New Zealand.
IMPROVING THE INTELLIGIBILITY OF AMENDING LEGISLATION
I referred to the initiatives which aim to make it easier to understand the effect of amendments to bills. The presentation of bills that amend other legislation is a related area in which improvements might be considered. At present, the way in which amendments are presented means the amending bill is unintelligible by itself. To understand the effect of the amendments, users need to consult the principal enactment.
Some consideration has been given to this problem in other jurisdictions. An article in a recent Statute Law Review,25 notes that in Belgium, a bill amending existing acts is published with a co-ordinated version of the text it amends, showing how the amended legislation would look if the amending bill is passed. And if a bill is considerably amended by a committee of the House, a new co-ordinated version is produced. The article refers to a similar practice in the Netherlands. There, however, the circumstances in which versions are produced are more limited, and they are made available only to members.
The production of versions of acts showing the effect of amendments proposed in bills would be a huge undertaking if current manual methods of compilation were used. However, the use of a drafting system such as the EnAct system in Tasmania would automatically produce “advance reprints” of this kind.26 Printing such versions would impose considerable costs in the case of amendments to large enactments, but making the versions available in electronic form only via a website would probably be feasible and low cost. The New Zealand PCO currently has no plans in this area, but it is worthy of future consideration.
ASSOCIATED MATERIAL
If legislation is more widely available to the public, there is some associated material that I think should also be made available to guide users in understanding and interpreting legislation. I have in mind material that explains some of the conventions underlying the drafting process and how this affects the way legislation is produced. This would include the PCO’s drafting manual and style guide. Some drafting offices already make this kind of material available on their websites. New Zealand is considering how this could best be done.
Of course other Parliamentary information is also relevant, such as Hansard. While the publication of this material is not the PCO’s responsibility, there is a need to ensure collaboration among the relevant agencies to make links available between materials produced by the different agencies. Initiatives already underway in New Zealand that might well lead to development of a “Parliamentary portal” providing a one stop shop for such material.
Conclusion
The recent New Zealand experience of improving public access to legislation
is that it is a complex and difficult process influenced by many factors. Technical issues are only part of the equation. Perhaps far more important and complex are the historical, environmental, and political factors that provide the backdrop, and constrain or influence the way forward.
Before we began we did look at what had been done in other jurisdictions, especially in Australia, to provide us with a steer. Some common issues face all jurisdictions. The extent to which new XML-based systems require drafters to become typesetters is an obvious one, and a significant change management issue to be addressed when implementing new systems into
a drafting office. However, the common issues are probably less relevant than the significant differences between jurisdictions in terms of local conditions and processes, the time at which the project is undertaken
(which significantly influences technology choices), and budgetary considerations.
Access to legislation has two components: accessibility in the physical
sense, and equally important, the accessibility of the content and meaning. Language, format, and structure also need to be understandable. Accessibility of legislation needs to be linked with changes in drafting style and legislative format, and possibly enhanced reprinting powers and a regular clean out of dead wood, so that legislation and the overall statute book are truly accessible.
The public-facing parts of a project to improve public access to legislation are also only part of the story. Equally important measures of the PAL project’s success include the provision of backroom processes that enable timely and high quality output to be produced. It should
also be judged by the opportunities it presents for further initiatives and developments, since the expectations of the public and other stakeholders will not remain static.
The following quotation from a history of the New Zealand Government
Printing Office is rather interesting:
William Colenso, New Zealand’s first printer, busily working overtime at
the Church Missionary Society’s press at Paihia on the night of 29 January
1840, had a rush job to do for the Lieutenant-Governor: two proclamations,
100 copies of each, and a circular calling on the Maori chiefs to assemble at
Waitangi were to be ready for the morning.[27]
Expectations have changed very little in 163 years! I am not sure that meeting expectations has got any easier either.
* Deputy Chief Parliamentary Counsel and PCO Project Director, Public Access to
Legislation Project, Parliamentary Counsel Office, Wellington. The views expressed in this paper are those of the author, and do not necessarily reflect the views of the New Zealand Parliamentary Counsel Office.
[1] Quoted in JF Burrows, Statute Law in New Zealand, (3rd edn, 2003) 98, LexisNexis, New
Zealand.
[2] Butterworths and Co (Aus) Ltd, Public Acts of New Zealand (Reprint) 1908-1931 Volume 1
(1932) viii.
[3] Jeremy Waldron, The Dignity of Legislation (1999).
[4] George Tanner, “Confronting the Process of Statute Making” unpublished paper
presented to the New Zealand Legal Method Seminar—The Statute: Making and Meaning, held at Auckland, 16 May 2003.
5 JK McLay, Attorney-General, Foreword to Volume 1 of Reprinted Statutes of New Zealand.
6 J Miller “A New Zealand CLIRS” (1983) NZLJ 279.
[7] Law Commission, Annual Report of the Law Commission for the Year Ended 31 March 1988,
(1988) 6.
8 Tanner, above, n 4.
[9] <www.pco.parliament.govt.nz>.
[10] <www.thelaw.tas.gov.au/background.html>.
[11] The EnAct system has, however, been implemented in Papua New Guinea.
[12] See WA Glue, History of the Government Printing Office, RE Owen, Government Printer, Wellington, 1966.
[13] J Treadwell, “Free Access to the Law: The Strange Case of New Zealand”, paper presented to Law via the Internet ’99, the 2nd AustLII Conference on Computerisation of Law via the Internet, Sydney, July 1999.
[14] G Lawn, “What Makes Parliament Tick? Access to Legislation” paper presented to the What Makes Parliament Tick? Conference, Parliament Buildings, Wellington, August 1999. The paper is available on the PCO website at <www.pco.parliament.govt.nz/corporatefile/ access.html>. For a condensed version of the paper see G Lawn, “Format of Legislation and Access to Law” (1999) NZLJ 418–22.
15 <www.pco.parliament.govt.nz/pal/ipal/sumbuscase.pdf>.
[16] <www.ssc.govt.nz/display/document.asp?DocID=2933>.
17 Report of the Standing Orders Committee on the Review of Standing Orders 1995 44, I.18A.
[18] D McGee, Parliamentary Practice in New Zealand (2nd ed, 1994) 239.
19 For example, the Matrimonial Property Amendment Bill 1998, which (as introduced)
proposed to extend the Matrimonial Property Act 1976 to provide for the division of matrimonial property on the death of a spouse. The bill was considered by the Government Administration Select Committee, and reported back (with amendments) in September
[1999]. In June 2000, when the bill had reached its committee stage, it was referred back to the Justice and Electoral Select Committee. This was so that the select committee could consider SOP No 25, which proposed to extend the coverage of the principal act further to apply to de facto partners (including same sex partners). The bill was finally passed as the Property (Relationships) Amendment Act 2001, and changed the name of the principal act to
the Property (Relationships) Act 1976.
20 For a more detailed explanation of the format changes, see Lawn, above n 15.
[21] Sessional Order adopted by the House on 17 December 2002. The background to this change is set out in the interim report of the Standing Orders Committees Review of Standing Orders: The Publication of Legislation and Parliamentary Information 2002 (I. 18A), available online at <www.clerk.parliament.govt.nz//content/1400/i18a.pdf>.
22 Inquiry into Instruments Deemed to be Regulations—An Examination of Delegated Legislation
1999 (I. 16R); Government Response to the Report of the Regulations Review Committee on its
Inquiry into Instruments Deemed to be Regulations – An Examination of Delegated Legislation
1999 (A5), and Further Government Response to the Report of the Regulations Review Committee on its Inquiry into Instruments Deemed to be Regulations—An Examination of Delegated Legislation
2000 (A5)
23 See, for example, the Queensland Reprints Act 1992, ss 24, 29, 34
24 Report of the Regulations Review Committee: Inquiry into all Regulations in Force as at
14 November 1988, (1988) I. 16B.
[25] Koen J Muylle, “Improving the Effectiveness of Parliamentary Legislative Procedures”
(2003) Statute Law Review 24(3) 169, 186.
[26] I understand that the Tasmanian Office of Parliamentary Counsel can, and often does, supply instructing departments with a version of the enactment to be amended showing the proposed amendments marked up (using underlining and strike through). It can also supply
a version that shows what the enactment will look like if the amendments are passed. These versions are not currently made available to ministers or members of parliament.
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