Keeping the statute book up to date: a personal view

Abstract

From the perspective of both the state and its citizens, it is vital that up‐to‐date versions of legislation relevant to an issue that concerns them are capable of being identified and accessed. If legislation is not readily and immediately accessible, finding it will prove to be a task that is beyond not only lay people but also competent and experienced lawyers. A principal cause of the difficulty encountered by users of statutes and statutory rules in finding the law on a particular topic that concerns them is that often the relevant provisions are to be found not in one self‐contained statute, but in a number of provisions scattered among a number of separate annual volumes. This article provides an overview of some historical and recent developments in the UK, Australia, New Zealand, Ireland, Jersey, and Canada, before proceeding to consider approaches by which responsible authorities keep their Statute Books accessible and coherent. It examines in detail the relative merits and demerits of the textual (or direct) method and the non‐textual (or indirect) methods of amendment. The article concludes that the benefits of having an up‐to‐date, accessible and coherent Statute Book must surely be obvious. Apart from the removal of the frustration, the cost savings to both the state and the private citizen in both time and effort are surely immense.

Acknowledgements

The views expressed in this article are entirely the author’s own, but he would like to acknowledge the contributions made by Peter Quiggin, Don Colagiuri, Gemma Varley, Geoff Hackett‐Jones, Greg Calcutt, Mike McCluskie and Dawn Ray (all Australia); George Tanner (New Zealand); John Mark Keyes and Janet Erasmus (Canada); Daniel Greenberg (UK); Clive Borrowman (Jersey, Channel Islands); and Kieran Mooney (Ireland).

Notes

¹Statutory rules usually take the form of regulations, rules, bylaws or ministerial orders. In the United Kingdom and Ireland, they are called statutory instruments. Other terms used to describe this form of legislation are ‘subordinate legislation’, ‘subsidiary legislation’ and ‘delegated legislation’.

²Along the lines of the British Statutes Revised or Statutes in Force.

³By means of word and phrase searches of the text.

⁴A similar situation exists in Ireland.

⁵Discourse on the Reformation of Abuses.

⁶Which is symptomatic of non‐textual amendments.

¹¹Emphasis added.

¹²Not to mention the relevant case law, if any.

⁷All England Official Transcripts (1997–2008).

⁸Or at least those of us who are lawyers!

⁹See n 7 above.

¹⁰The Regulations in question were the Excise Goods Regulations 1992. In 2001, these Regulations were revoked and replaced by the Tobacco Product Regulations 2001, which are materially different from the 1992 Regulations.

¹³A sure sign that the non‐textual method had been used to amend statutes.

¹⁴See the report of the Royal Commissioner, Charles Heydon, on Statute Law Consolidation, which was published by the New South Wales Legislative Assembly on 22 July 1902. Some official volumes of Statutes of Practical Utility were prepared during the period between 1900 and 1914. In all, some 14 volumes were published concurrently with the annual volumes of ‘Acts as passed’.

¹⁵Which all sounds very modern!

¹⁶Ibid: see note 14.

¹⁷Also see comments of Sir Courtenay Ilbert, Mechanics of Law Making (Clarendon Press, Oxford 1901), at 40 regarding the resistance to change of Government officials.

¹⁸Textual and non‐textual amendments are considered in more detail below.

¹⁹This was originally called the Acts Reprinting Act 1972. This Act has now been repealed. It has been replaced by Part 6A of the Interpretation Act 1987 (NSW).

²⁰These were known colloquially as ‘the Green Statutes’.

²¹And these were known colloquially as ‘the Red Statutes’.

²²Ie textually amended by inserting, omitting, varying or substituting matter.

²³About 10,000 pages of legislation a year are reprinted in paper form.

²⁴〈http://www.legislation.nsw.gov.au〉.

²⁵Who was to become the first Chief Justice of Australia after Australia became a federation on 1 January 1901.

²⁶For a discussion of the relative merits of the textual and non‐textual methods of amendment, see below.

²⁸Western Australia Parliamentary Debates, 1905, 146.

²⁷Section 2 of that Act provided:

From and after the passing of this Act, whenever both Houses of the Parliament shall, by resolution, direct the compilation, with its amendments, of any Act in force in the State, it shall be the duty of the Attorney General … to prepare a compilation embodying all the provisions of such Act and the amendments thereof, omitting all those portions of the text of such Act which have been repealed or altered by subsequent Acts, and inserting in the proper places all words or sections substituted for or added to the text of the original Act by such subsequent Acts…

Section 3 required a compilation to be tabled before both Houses of Parliament.

²⁹Western Australia Parliamentary Debates, 1923, 627.

³⁰〈http://www.slp.wa.gov.au〉.

³¹This task was done entirely in‐house.

³²The Electoral Divisions Act 1903 textually amended section 19 of the Commonwealth Electoral Act 1902. For a discussion of the relative merits of the textual and non‐textual methods of amendment, see below.

³³There had not been a reprint of Regulations for almost 30 years.

³⁴This is similar to the approach previously adopted in Victoria and subsequently in most other Australian States and Territories.

³⁵For the Northern Territory legislative database, see: 〈http://www.dcm.nt.gov.au/strong_service_delivery/supporting_government/current_northern_territory_legislation_database〉.

³⁶Similar databases are to be found in other jurisdictions. For example, in Hong Kong, the Hong Kong Legal Information Institute (HKLII), a project of Law & Technology Centre (a centre jointly established by Department of Computer Science and Faculty of Law of the University of Hong Kong), provides the public with legal information relating to Hong Kong. Similarly, the British and Irish Legal Information Institute (BAILII) operates a publicly accessible data base containing British and Irish case law and legislation, European Union case law, Law Commission reports, and other law‐related British and Irish materals.’

³⁷See Walter Iles, ‘Legislative Drafting Practices in New Zealand’ (1992) Statute Law Review 16–30.

³⁸Eg The Fisheries Amendment Act 1963.

³⁹Eg Electoral Regulations prior to a general election

⁴⁰Referred to by some as the ‘Brown Volumes’.

⁴¹1922 was the year in which Ireland gained its independence from the United Kingdom.

⁴²The members are John Mark Keyes (Chairperson), François LaFontaine and Ingrid Ludchen.

⁴³See 〈http://laws.justice.gc.ca/en/〉.

⁴⁴In fact, there was never a full revision that replaced the whole Canadian federal statute book. Revisions always omitted private Acts and Acts of narrow or temporary application. All revisions (including the 1985 revision) have included all other laws. To date there has never been a selective revision of only a few Acts. Until June 2009, the computer database of Canadian federal statutes was unofficial. However, it is understood that the Department of Justice is now planning to undertake selective revisions of a group of Acts at a time.

⁴⁵The Act is now RSBC 1996, c 440.

⁴⁶The Law Clerk of the BC Legislative Assembly will request a revision when there are amendments to a substantial Private Act.

⁴⁷However, the Office of Legislative Counsel monitors the electronic consolidation and thus ensures that any errors that are found are promptly corrected.

⁴⁸Ontario used to carry out statute revisions every 10 years.

⁴⁹Ie ‘hard copy’.

⁵⁰In this article, I use the term non‐textual method and textual method rather than indirect method and direct method, but they more or less amount to the same thing. For a discussion of the relative merits of the textual and non‐textual methods of amendment, see below.

⁵¹GC Thornton, Legislative Drafting (4th edn LexisNexis, London 1996) at 405.

⁵²Arguably, the same result could have been achieved by legislation that was drafted in the form of textual amendments.

⁵³Thornton, Legislative Drafting (n 50) 407; DR Miers and AC Page, Legislation (2nd edn Sweet and Maxwell, London 1990) 195–196.

⁵⁴Thornton, Legislative Drafting (n 50) 406–407.

⁵⁵In the United Kingdom, this device has been adopted on some occasions by means of what are known as Keeling Schedules. A Keeling Schedule shows, in a Schedule to the relevant Bill, how the law will look once it is amended. It is also makes it clear in the text of the Bill itself how the law is being amended. See paragraphs 13.21 and 13.22 of the Renton Report: The Preparation of Legislation, Report of a committee appointed by the Lord President of the Council and chaired by (then) Sir David Renton (1977).

⁵⁶However, in the United Kingdom and Ireland, explanatory notes are usually prepared by government officials.

⁵⁷And in fact it usually does.

⁵⁸Thornton, Legislative Drafting (n 50) 407.

⁵⁹I have found that it is not unusual for these collective citations not to be kept up to date or for one in a series to be missed.

⁶⁰The Amendments Incorporation Act 1905 requires the Australian Government Printer to publish reprinted updated versions of amended statutes and statutory rules. However, this work is now undertaken in the Office of Legislative Drafting and Publications in Canberra. In New South Wales, the Reprints Act 1972 authorises the Parliamentary Counsel to issue updated versions of statutes and statutory rules. Similar legislation operates in Queensland (the Reprints Act 1992); in South Australia (the Legislation Revision and Publication Act 2002); in Tasmania (the Legislation Publication Act 1996); in Victoria (section 21A of the Interpretation of Legislation Act 1984); and in Western Australia (the Reprints Act 1984). In New Zealand, compilations of amended statutes are prepared under the Statutes Drafting and Compilation Act 1920. In Hong Kong, section 99 of the Interpretation and General Clauses Ordinance authorises the Government Printer to print copies of Ordinances with all amendments made by amending Ordinances. Such copies are treated as authentic versions of the amended Ordinances.

⁶¹The official designated to be the publisher will normally be the Government (or Queen’s) Printer, the Attorney General or the Parliamentary Counsel.

⁶²Both at the federal and state levels. For example, for compilations of Australian Commonwealth Acts, see 〈http://www.comlaw.gov.au/ComLaw/legislation〉 and for consolidated versions of New South Wales statutes and statutory rules, see 〈http://www.legislation.nsw.gov.au〉.

⁶³Eg see 〈http://laws.justice.gc.ca/〉.

⁶⁴Eg see 〈http://www.e-laws.gov.on.ca/DBLaws/Statutes/〉 for the legislation of Ontario and 〈http://www.qp.gov.bc.ca/statreg/default.htm〉 for the legislation of British Columbia.

⁶⁵See n 54. See para 13.17 of the report.

⁶⁶Ilbert (n 17) 129.

⁶⁷Stephen served (1869–72) as the legal member of the Viceroy’s Council in India, preparing a draft codification (later adopted) of the law relating to contracts, crime, and evidence. He later drafted a codification of English criminal law, but the United Kingdom Parliament never enacted it.

⁶⁸Likewise in Hong Kong, where the Law Drafting Division of the Department of Justice maintains up‐to‐date sets of loose‐leaf reprinted statutes and statutory rules.

⁶⁹Such as was the case with the Reunification Ordinance enacted by the Hong Kong Provisional Legislative Council during the early hours of the morning of 1 July 1997 in consequence of the resumption of the sovereignty of Hong Kong by the People’s Republic of China. However, the various non‐textual referential amendments were later converted to textual ones by means of a systematic programme of amending legislation.

⁷⁰Eg by means of a Statute Law (Miscellaneous Provisions) Bill.

⁷¹See Lord Simon of Glaisdale and JVD Webb, ‘Consolidation and Statute Law Revision’ (1975) PL 285.

⁷²Ilbert (n 17) 36 and 37, described consolidation in the following terms:

By consolidation I mean the combination into a single statute of several statutes or parts of statutes dealing with the same subject. … Consolidation deals with statute law alone as interpreted and explained by judicial decisions. … In consolidating statute law, you have to consider and reproduce, unless you determine to alter, the effect of judicial decisions. You also have to consider the reciprocal bearing of the statute law and of the rules of common law on which it is based, which it presupposes and which it may or may not vary.

⁷³Eg see the Fisheries (Consolidation) Act 1959, the Income Tax Act 1967, the Social Welfare (Consolidation) Act 1981, the Social Welfare (Consolidation) Act 1993, the Taxes Consolidation Act 1997 and the Stamp Duties Consolidation Act 1999.

⁷⁴L Hennessy and P Moore, Taxes Consolidation Act 1997: the Busy Practitioner’s Guide (Institute of Taxation in Ireland, Dublin 1997) 3.

⁷⁵Ilbert (n 17) 36 and 37 has described codification in the following terms:

By codification I mean the reduction into a systematic form of the whole of the law, statute law or common law. … Codification deals both with common law and with statute law. … In codifying common law, you have to incorporate rules which have already been reduced to statutory form.

⁷⁶Eg like the reprinted laws of Hong Kong.

⁷⁷I use the term ‘consolidation’ in the way used by Sir Courtenay Ilbert (n 17).

⁷⁸Eg the Statute Revision Act [Revised Statutes of British Columbia 1996] Chapter 440.