Access to the Law
Access to the Law
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It is a fundamental precept of any legal system that the law must be accessible to the public. Ignorance of the law is no excuse because everyone is presumed to know the law. that presumption would be insupportable if the law were not available and accessible to all. the state also has an interest in the law's accessibility. It needs the law to be effective, and it cannot be if the public do not know what it is. lack of publicity also results in there being no check against disregard of the laws by the law enforcers themselves. 2 the law of New Zealand, like the law of England, derives from more than one source. the Common law is law that has been built up by the Judges in the process of deciding cases. New Zealand inherited the English Common law and has developed it in its own way. Many important areas of law, for example, much of the law of contract and tort, remain common law. Non-lawyers who are not trained in reading court judgments must rely substantially on the expositions of text writers, and on the advice of lawyers, to know the common law. legislation, that is to say Acts of Parliament and the various forms of delegated legislation made under the authority of Acts of Parliament, is the other main source of law in New Zealand. It has long since outstripped the common law in importance. It is the modern instrument of law reform. It can do everything the common law can do and much more besides. Parliament regularly passes about one hundred Acts of Parliament in a year. Routinely, three or four volumes of Acts each comprising anywhere between 700 and 800 pages are published for each year. In 2005 the number of pages totalled 2,062, and in 2006 there were a total of 3,308 pages. there are often well over three hundred sets of regulations a year. 3 All of these forms of law common law, Acts of Parliament and delegated legislation - raise questions of accessibility. this issues paper is concerned simply with Acts of Parliament. this limitation is based solely on practical considerations of time rather than strict logic. full study of the accessibility of the common law, delegated legislation and Bills in parliament must await a future time. What Does Accessibility Mean? 4 When we say the law must be accessible, what do we mean? the term has at least three relevant meanings in this context. 5 first, it can refer to availability to the public
. In other words, the government must promulgate Acts
. In the words of American jurist lon fuller, a failure to publicise, or at least make available to the affected party, the rules he or she is expected to observe, is one of several ways in which an attempt to create and maintain a legal system can miscarry.2 As long ago as 1651, Hobbes said:3 to rule by Words, requires that such Words be manifestly made known; for else they are no lawes: for to the nature of lawes belongeth a sufficient, and clear Promulgation, such as may take away the excuse of Ignorance… 6 this obligation requires, in relation to hard copy, that Acts of Parliament be printed and made available for purchase at a reasonable cost, and viewable in places like public libraries
. In the modern environment it also requires that Acts be electronically accessible. We shall call this type of accessibility availability. the second meaning of accessibility involves users being able to find the relevant law without unnecessary difficulty. this includes the ability to know that a relevant piece of legislation exists in the first place, knowing where to look for it, and being sure that one has found all the relevant law on the subject. If the law on a subject is scattered throughout several different Acts, that can impede accessibility. We shall call this second meaning of accessibility navigability. 8 the third sense of accessibility involves the law, once found, being understandable to the user. If the law is expressed in an unnecessarily complicated or obscure way, the reader is unable to know the full extent of his or her rights and obligations. We shall call this meaning clarity. lon fuller regarded "a failure to make rules understandable" as another way in which the attempt to make law might miscarry.4 lord oliver of Aylmerton once said:5 it is … vitally important that legislation should be expressed in language that can clearly be understood and… in a form that makes it readily accessible. Edmund Burke observed that bad laws are the worst form of tyranny
. But, equally, well-intentioned laws that are badly drafted or not readily accessible are also a form of tyranny. 10 Before proceeding to examine how the state in New Zealand satisfies its obligation to make the law accessible in these three senses, there remains a further preliminary question. Accessible to Whom? 11 It seems once to have been supposed that law was the preserve of lawyers and Judges, and that legislation was drafted with them as the primary audience. It is now much better understood that Acts of Parliament (and regulations too) are consulted and used by a large number of people who are not lawyers and have no legal training. Many people refer to legislation in their jobs. People who work in the registries of universities and other educational institutions make constant reference to Education legislation; employers and trade union officials need to be well versed in employment legislation; the staff of many government departments, many of whom are not legally trained, work closely with the legislation that their departments administer; the staff of local authorities need to access the large quantity of local government legislation;6 and company officers need to consult company and financial reporting legislation. At other times ordinary people refer to Acts of Parliament to find the answers to problems that affect them in their personal lives: difficulties with a neighbour may lead to them consulting the fencing Act 1978; domestic difficulties may lead to them consulting our family and relationship legislation. legislation direct maintains a list of much-accessed legislation that it calls its "best-seller” list.7 In addition, the interim website of New Zealand legislation receives an average of over 30,000 unique visitors a month; between them they view over 1.8 million pages of legislation a month. In most countries, like Australia and New Zealand, almost all Bills passing through Parliament are referred to a select committee where members of the public can make submissions. If they are to make those submissions effectively, they need to be able to understand not only the bill with which they are concerned, but also other legislation that it amends or in some way affects.8 It can therefore fairly be said that the audience for legislation extends well beyond a narrow legal audience. this is not to say, of course, that all readers will be instantly able to grasp the intricacies of every piece of legislation. Some Acts are of a technical nature with which they will need legal assistance. our property legislation, for example, is likely to use technical terms like "estate in land” , and “easement” . there may also be other legislation in the light of which the Act in question should be read, the New Zealand Bill of Rights Act 1990 being a prime example. there may also be court decisions interpreting the Act's provisions. often an Act will not provide a lay reader with a clear answer to his or her problems. the reader will then need to seek legal advice. When it is said, therefore, that legislation should be accessible to ordinary people, we mean that on reading it they should be able to gain a general understanding of their rights and obligations, while still acknowledging that they may sometimes need further legal assistance to more fully understand and pursue those rights and obligations.9 Availability 14 there is a statutory obligation to make legislation available. the Acts and Regulations Publication Act 1989 provides that the Chief Parliamentary Counsel, under the control of the Attorney -General, must arrange for the printing and publication of copies of every Act enacted by Parliament.10 there is a prior question. Before an Act of Parliament can be said to be available, the public need to know that it exists. Many Acts do not come into force until some time after their enactment, and some contain provisions specifying that they come into force only upon the making of an order in council. Where an Act contains such a provision, a further search can be required to determine whether, and if so when, the order in council was made. Navigability 19 It is not enough that Acts be available to a user. the user should be able to find the relevant provisions of those Acts with as little difficulty as possible. In New Zealand the law on one topic is sometimes scattered over several Acts. It is all too easy to fail to locate all relevant provisions. Currently New Zealand does not have an official subject index of legislation
. However, each year, the PCo publishes a volume entitled "Tables of New Zealand Acts and Ordinances and Statutory Regulations in Force” . It lists all Acts (and regulations) in force in New Zealand in alphabetical order of titles. It is a table rather than an index, although there is a certain amount of cross-referencing. the table appears on the PCo website as well, where it is updated at least six monthly and often more regularly. one of the commercial publishers, lexisNexis, does publish a subject index. As we shall see, the absence of a comprehensive official subject index can lead to difficulty. 20 the process of amendment can also lead to problems of navigation. Acts of Parliament are amended regularly. Indeed, in most sessions of Parliament, the number of amending Acts greatly exceeds the number of principal Acts
. In 2005, for example, there were 126 Acts passed. of these, if one excludes the Imprest Supply and Appropriation Acts, only 14 were principal Acts. the great majority of amendment in New Zealand is what is known as textual amendment, which makes an alteration to the text of the principal Act. New sections are added, existing sections are altered or replaced (unlike "referential” amendments, where the amendment is a separate Act that does not alter the text of the principal Act).22 Under the system of textual amendment, amending Acts often make little sense when read on their own; the reader needs the principal Act to hand also to see how the amendments take their place in the structure of the whole. It is of critical importance when using an Act of Parliament to ensure that one has located and understood the relevance of all subsequent amendments to it. the private firm Brookers assists in this process by visiting subscribers twice a year and updating each principal Act by a process of striking out amended or repealed provisions with a red pen, and inserting slips of paper to show the amended version. Not all owners of Acts Subscribe to this service. Even some libraries do not. Users of unannotated Acts therefore need to check later Acts to see if there are amendments to the principal Act they are consulting. Even where Acts are annotated, an annotation may be out-of-date by the time it is consulted. the inexperienced can fall into serious difficulty. 21 When an Act has been much amended, it is often reprinted (or compiled) by the Clarity 24 New Zealand has no statutory obligation to make Acts of Parliament understandable. Some overseas jurisdictions do. thus, the Indiana Constitution, Article 4, Section 20 states: Every Act… shall be plainly worded avoiding as far as practicable the use of technical terms. 25 the Queensland legislative Standards Act 199225 requires, in determining whether legislation complies with fundamental legislative principles, an assessment of whether the legislation is unambiguous and drafted in a sufficiently clear and precise way.
Conclusion
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