Statute Law in New Zealand
Reviewed by George Tanner QC*
The fact that Statute Law in New Zealand, first published in 1992, is now in its fourth edition and is about twice the size of the original reflects that fact that law-making and the interpretation of legislation are in a state of constant change.
The New Zealand Bill of Rights Act 1990 had only recently been enacted when the first edition appeared. This act has had and continues to have a major impact on the development and interpretation of legislation as do MMP and the Interpretation Act 1999. There is always something going on.
Although there was initial reluctance to publish a book on legislation at all, such is the extent of the contribution the book has made to understanding of the subject in a relatively short time that it is now inconceivable that New Zealand will ever be without an indigenous publication of this kind.
Indeed, it is hard to believe we managed without one for so long.
The book covers a lot of territory. It is a tribute to the authors that they have been able to provide readers with succinct but comprehensive treatment of topics that are the subjects of complete textbooks. The fourth edition is co-authored with Ross Carter, an experienced Parliamentary Counsel, who brings a new perspective to the subject: one might say from the engine room of law making.
The book is in five parts.
Part 1 deals with the nature of legislation and the recent debate about the concept of parliamentary sovereignty. Traditionalists will be comforted to know that the authors believe it is still the general principle of our constitutional framework.
Part 2 discusses the preparation of legislation, drafting, and access to legislation and it is here that Ross Carter’s contribution is particularly evident.
Parts 3 and 4, which cover statutory interpretation, will have special relevance for practitioners. The chapters have been significantly updated with references to many recent New Zealand, Australian and UK cases.
Modern statutory interpretation involves, as the authors plainly demonstrate, the confluence of purpose, text, context, values, and a desire by courts for workable answers.
Readers will find much in chapter 8 that is helpful in understanding the purposive approach that legislation should work as Parliament intended. Statutory interpretation is no longer a mechanical exercise involving the application of canons and rules to yield an answer and reflects a movement in judicial approach from restrictive interpretations designed to protect private interests to acceptance that legislation is intended to further public purposes. At the same time, the limitations of purposive interpretation are also addressed.
The discussion in chapter 9 of the different components of context is particularly helpful: the fact that it requires a chapter comprising 58 pages and copious footnotes might indicate why the word “context” was left out of section 5(1) of the Interpretation Act.
There is an interesting discussion in chapter 10, in light of the decision of the House of Lords in Inco Europe, of issues around filling in legislative gaps and error correction: where is the boundary between interpreting and legislating?
The section in chapter 11 on the New Zealand Bill of Rights Act, while stopping short of dealing with the substantive content of the individual rights and freedoms, provides an excellent overview of what must rate as one of the most difficult interpretation issues on the New Zealand statute book, namely the relationship between sections 4, 5, and 6 of the act.
Chapter 12 deals with the effect of the passage of time on the interpretation of statutes: how should an old act operate in a new setting or in a different era? Since this is a recurring problem, the guidance provided on the subject can only be useful. There is also a welcome but brief discussion of prospective overruling.
Chapter 15 discusses the new approach of including in statutes explicit provisions referring to the Treaty of Waitangi to protect Maori interests as distinct from the sometimes uncertain and unhelpful general reference to the principles of the Treaty.
Part 5 deals with a wide range of issues relating to commencement, retrospectivity, repeal, and amendment that, while essentially technical, can give rise to real practical problems.
Statute Law in New Zealand combines the theoretical with the practical in a way few textbooks come close to achieving.
It has direct relevance for lawyers in the private and public sectors and to the judiciary. Although it is a legal textbook, there is much in the book that will be of value to others beyond the judicial and professional audience interested in the legislative process and the relationship between the legislative and judicial branches of government. It is, as one might expect, erudite, perceptive, concise, and scholarly. It is also extremely accessible and at times entertaining. There will be many more editions of this outstanding work.
Statute Law in New Zealand, Fourth Edition by J F Burrows and R I Carter, LexisNexis 2009. ISBN 9780408719230. $95 excluding GST, and freight and handling.
*George Tanner QC is a Law Commissioner, having joined the Law Commission in 2007. Earlier that year, he retired as Chief Parliamentary Counsel, having held the position since 1996.
LawTalk 749, 3 May 2010