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.

Introduction

Since legislation incorporates the norms by which society operates, its availability in an up‐to‐date, accessible and coherent form is crucial for the orderly and effective functioning of society and in particular for the rule of law. 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.

Ideally, legislation should be published in a manner that will facilitate its being identified and located by members of the public. Ensuring this outcome should be relatively straightforward. Unfortunately, this is by no means always the case, as I shall try to show in this article.

An initial problem faced by someone searching for the relevant law on a particular topic is that it is not necessarily to be found in one Act. In many cases, the relevant provisions are scattered among a number of statutes and statutory rules ¹ and, quite probably, judicial decisions.

In most common law countries, the practice has been to publish statutes and statutory rules in annual volumes. Normally, each volume will consist of public general Acts arranged in the order of enactment, with any private Acts being included separately at the end of the volume. The volumes are not updated or revised, although in some common law countries it has been the practice to issue annual publications containing annotations setting out amendments to earlier statutes. Statutes that are repealed, become spent, or otherwise lose their force, are not excised. Unless there is a mechanism for revising and republishing amended statutes, ² users of those statutes are faced with considerable difficulty in finding out what legislative provisions are relevant to them. Moreover, having found what may appear to be the provisions that concern them, they cannot rest on their laurels. They still have to check to see whether, and to what extent, those provisions have been affected by subsequent legislation and judicial decisions.

If legislation is not kept up to date, the task of researching it is unnecessarily difficult and mentally demanding, and requires much time, resources and enthusiasm. The problem is alleviated in those jurisdictions where indexes and annotations of statutes are still maintained. And in recent years, the publication in most common law jurisdictions of electronic versions of statutes and statutory rules has also made it easier to access legislation. ³

Some historical and recent developments

The position in the United Kingdom

Some of the statutes in the United Kingdom Statute Book go back as far as the thirteenth century. The fact that many of the older ones are written in an archaic style of English make them hard to understand. Even if consolidators are able to give meaning to those statutes, they are still faced with the difficulty of translating them into modern English. Moreover, United Kingdom statutes are now overlain with large tracts of European Union law, which frequently qualifies what on the face of them might otherwise be seen to be intelligible statutes. ⁴

The state of the English Statute Book attracted criticism as early as 1551. In that year King Edward VI, then only 14 years of age and a very precocious youth, wrote as follows: ⁵

I have shewed my opinion heretofore what statutes I think most necessary to be enacted this session. Nevertheless, I would wish that beside them hereafter, when time shall serve, the superfluous and tedious statutes were brought into one sum together, and made more plain and short, to the intent that men might better understand them; which thing shall much help to advance the profit of the Commonwealth.

In a speech from the throne in 1609, King James I spoke of

divers cross and cuffing statutes, and some so penned that they may be taken in divers, yea, contrary senses … and therefore would I wish both these statutes and reports, as well in the Parliament as common law, to be once maturely reviewed and reconciled; and that not only all contrarieties should be scraped out of our bookes, but even that such penal statutes as were made but for the use of the time (from breach whereof no man can be free) which do not now agree with the condition of this our time, might likewise be left out of our bookes, which under a tyrannous or avaricious king could not be endured.

In 1616, Sir Francis Bacon, then Attorney‐General to King James I, submitted to the King a proposition ‘touching the compiling and amendment of the laws of England’. He proposed that the work to be done should consist of two parts. One would comprise a digest or compilation of the common laws. The other would reform and recompile the statutes. Among the reforms he envisaged was the reduction ‘of statutes heaped one upon another to one clear and uniform law’. ⁶ But despite his efforts, nothing seems to have come of them. After the restoration of the monarchy in 1660, the topic was raised again, but nothing came of it. It was another 130 years before the topic resurfaced. In 1796, two reports, presented by the committees of the House of Commons, drew attention to the unsatisfactory state of the Statute Book. This led to an improvement in the classification of statutes, and to the distinction now recognised by us between public general Acts, local and personal Acts and private Acts. However, in 1800, the UK Parliament passed resolutions that led to the appointment of the First Commission on Public Records. It was under the authority of this Commission that the edition of the statutes known as the Statutes of the Realm was prepared. A further attempt at reform was made in 1833 with the appointment of a royal commission to codify the criminal law and to ascertain how far it might be expedient to consolidate the other branches of the law then existing in England. However, the project was over‐ambitious and so yielded only limited success.

Since then the situation has improved appreciably, in that commercial publishers, such as Butterworths, produce very accurate edited versions of the Statute Book. An official electronic statute law database is now available, which contains the Scottish statutes as well as those of the United Kingdom as a whole. This is accessible by members of the general public and allows them not only to find out what the current law is but also to find out what the law was on a given date. Halsbury’s Statutes of England and Wales, published by Butterworths, contains the primary legislation of England and Wales, with statutes being grouped under an alphabetically arranged title headings. Each statute is annotated with useful cross‐references, relevant cases and subordinate legislation. Halsbury’s Statutory Instruments, another Butterworths publication, is also arranged according to titles listed alphabetically. This publication provides up‐to‐date information about statutory instruments by either printing them in full with annotations, or providing a summary of the relevant instruments. These publications provide the equivalent of a continuously revised Statute Book (though not for Scotland or Northern Ireland). Apart from LexisNexis, there is also Westlaw UK, which unlike Butterworths includes Scottish material. It also includes analytical annotations. There are also other commercial publications for particular specialities. These commercial publications are the only fully updated source of information for members of the general public, but from the point of view of the general public, the disadvantage is that they charge users for access.

An official electronic Statute Law Database is available on the Office of Public Sector Information (OPSI) website. Legislation on this website (which also contains the Scottish statutes as well as those of the United Kingdom as a whole) is available as enacted in its original format and as revised text. Information about legislation published within the preceding two weeks and about Acts awaiting Royal Assent are to be found on the new legislation page of the website. The database is accessible by members of the general public and allows them not only to find out what the current law on a matter is but also to find out what the law was on a given date. The problem with the official Statute Law Database is that it is not up to date. The problem is exemplified by the circumstances surrounding the recent decision in R v Chambers. ⁷ I am sure most of us ⁸ are aware of the maxim ‘ignorance of the law is no excuse’ and that everyone is presumed to know the law that governs their daily activities. But people can only know what that law is if they can readily find it. With the advent of the UK Statute Law Database, one would have expected that in twenty‐first century Britain it would not be too difficult to find out what the law is on a given point. However, as the recent decision in Chambers ⁹ illustrates, the position remains far from satisfactory. This case involved an order confiscating the profits made by Chambers from fraudulent conduct in respect of which he had been previously convicted. However, just before the Court of Appeal was about to hear an appeal against an earlier decision making a confiscation order against the appellant (Chambers), it was discovered that the regulations under which the order was to be made had been revoked as long ago as 2001. ¹⁰ No one involved in the case (including the lawyers, the judge who made the original decision, or the three appeal judges) had previously been aware that the relevant Regulations were no longer valid. At the hearing of the appeal, Lord Justice Toulson, who delivered the judgment of the Court of Appeal, was highly critical of the state of affairs. In giving judgment in the case, he had this to say:

This case also provides an example of a wider problem. It is a maxim that ignorance of the law is no excuse, but it is profoundly unsatisfactory if the law itself is not practically accessible. ¹¹ To a worryingly large extent, statutory law is not practically accessible today, even to the courts whose constitutional duty it is to interpret and enforce it. There are four principal reasons:

First, the majority of legislation is secondary legislation.

Secondly, the volume of legislation has increased very greatly over the last 40 years. The Law Commission’s Report on Post‐Legislative Scrutiny, (2006) Law Com 302, gave some figures in Appendix C. In 2005, there were 2868 pages of new Public General Acts and approximately 13,000 pages of new Statutory Instruments, making a total well in excess of 15,000 pages (which is equivalent to over 300 pages a week) excluding European Directives and European Regulations, which were responsible for over 5,000 additional pages of legislation.

Thirdly, on many subjects the legislation cannot be found in a single place, but in a patchwork of primary and secondary legislation. ¹²

Fourthly, there is no comprehensive statute law database with hyperlinks which would enable an intelligent person, by using a search engine, to find out all the legislation on a particular topic. This means that the courts are in many cases unable to discover what the law is, or was at the date with which the court is concerned, and are entirely dependent on the parties for being able to inform them what were the relevant statutory provisions which the court has to apply. This lamentable state of affairs has been raised by responsible bodies on many occasions, including the House of Lords Committee on the Merits of Secondary Legislation.

As pointed out in the concluding words of Lord Justice Toulson’s judgment, it is indeed a serious state of affairs when the relevant legislation is not accessible, the Government’s own public information website (OPSI) is incomplete and the prosecution unintentionally misleads the court as to the relevant Regulations in force. Although the problem in the Chambers case arose in an excise context, it is symptomatic of a wider problem of significant constitutional importance.

Even though the OPSI website contains free and complete text of all statutes and statutory instruments passed or made, it would, given the amount of referential legislation that is currently on the United Kingdom statute book, be extraordinarily difficult, if not impossible, to construct a usable text of the ‘as‐amended legislation’ from that material.

The position in Australia

Victoria

The need to keep the Statute Book up to date was recognised in Australia early on. Although, the colony of Victoria was established only in 1835, a full consolidation of the colony’s Statute Book was undertaken as early as 1865. Further consolidations of Victorian legislation took place in 1890, 1915, 1928 and 1958. This has meant that the Victorian Statute Book has remained in reasonable shape from the outset. Since 1958, a regular reprinting programme has ensured that individual statutes are kept up to date. For example, the Crimes Act 1958 has been reprinted 21 times since 1958.

New South Wales

Initially, the situation was not so good in New South Wales. The first New South Wales statute was passed in 1824. However, by 1893, the condition of the Statute Book had deteriorated to the extent that there were calls for reform. Between 1824 and 1893, except for two or three topics, no consolidation was attempted. Furthermore, amendments, partial repeals, re‐enactments, implied repeals, repeals of Acts in the formula ‘so much of the said Act as is inconsistent with the present Act is hereby repealed,’ adoptions of Acts with provisions quite inapplicable to New South Wales, and various other methods of legislation, had been piled one upon the other, and had brought the Statute law into a condition of confusion and entanglement. ¹³ This gave endless trouble to the judiciary and was a daily source of irritation and expense to all classes of the community. The position was only alleviated by the occasional publication of collections of New South Wales statutes. ¹⁴

This led to a clearing of the Statute Book of the very large number of Acts that, for various reasons, had ceased to have any effect. By using a carefully drawn saving clause, no fewer than 602 Acts were repealed by the Revision Act of 1898. A further 122 Acts were repealed by similar legislation passed in 1902. Subsequently, a Royal Commissioner was appointed to make proposals for the consolidation of the New South Wales Statute Book. The Commissioner reported to the State legislature in 1902. One of the aims of the consolidation was to bring the language and arrangement of Acts as far as possible into conformity with the clearer and simpler methods of modern drafting. Preambles were to be omitted, long and involved clauses cut into shorter ones, inaccuracies removed, and inconsistencies reconciled. Furthermore, all enactments on a particular branch of the law were to be arranged in as concise, clear and orderly a manner as possible, in one consolidating statute. ¹⁵ However, no amendments ‘which partook of the character of legislation ought to be ventured upon, and that all amendments, however, carefully limited to the bare necessity of the consolidation, should be noted and pointed out for the information of Parliament in the memorandum which was to accompany each Bill.’ ¹⁶ According to the Commissioner, it would have been far easier, would have saved much time and an infinity of trouble, and would have avoided a great deal of risk, to repeat the clauses of the Act practically as they stood with their inaccuracies and inconsistencies. This in fact was the approach adopted in Victoria. However, in New South Wales, it was from the outset thought that a more thorough consolidation, with its great accompanying reduction in the bulk of the Statute Book, was desirable. In the event, this was accomplished.

It should be noted that the New South Wales legal profession considered the consolidation to be an inconvenience! ¹⁷ Members of the profession were apparently content with a confused jumble of Acts with which they had become familiar and which they had carefully noted up with decided cases. However, every consolidation will cause this kind of inconvenience. According to the Commissioner, the preparation of a new edition of the statutes, with all the consolidations and a good index, would go a long way to remove the difficulty, which in a short time would entirely disappear.

Not long afterwards, the New South Wales legislature enacted the Amendments Incorporation Act 1906. That Act specifically (and I would argue significantly) for the first time authorised the reprinting of New South Wales Acts with the textual amendments ¹⁸ that had been made to them by other Acts. This Act remained in force until it was replaced by the Reprints Act 1972. ¹⁹ Since 1906, non‐textual amendments to New South Wales statutes have been extremely rare, being confined to savings and transitional provisions and some referential amendments of a global nature. But now even savings and transitional provisions that are consequent on the enactment of amending Acts are drafted as textual amendments to the relevant principal Act.

A full consolidation of the New South Wales Statute Book was carried out in 1937. ²⁰ In 1957, a further full consolidation was undertaken. ²¹ Although the volumes comprising this consolidation were prepared under the auspices of the Law Book Company, they were published with official approval. Some interest was shown in undertaking a further revision in 1977, but in the event it was decided to enhance the official reprints system rather than having a static set of bound volumes that would soon become out of date.

The reprinting of New South Wales Acts is now governed by Part 6A of the Interpretation Act 1987 (comprising sections 45B to 45E). Section 45C of that Act now requires the New South Wales Parliamentary Counsel to compile and maintain a legislation database, which is to be published on the New South Wales legislation website. Section 45D of that Act also empowers the New South Wales Parliamentary Counsel to publish paper reprints of legislation that has been directly ²² amended. Paper reprints are now only distributed to about 100 subscribers. The New South Wales Parliamentary Counsel Office publishes paper reprints on selected titles ²³ but Acts and statutory rules reprinted in paper form are of course only up to date at the time when the reprinting was completed. Under the now repealed Reprints Act 1972, a number of different kinds of amendments were authorised. However, apart from some very minor matters specified in section 45E of that Act, the paper reprint process is not used to make any changes to the text. All updating of Acts is now carried out by ordinary amending Acts, one of which is the bi‐annual Statute Law Revision (Amendment) Bill.

The paper reprints system, which was formerly provided for under the Reprints Act 1972, has in effect been superseded by the legislation database published on the New South Wales legislation website. ²⁴ This website has official status and covers all Acts and statutory rules. If any Act or statutory rules is amended, an up‐to‐date version of the Act or statutory rules is available on the official website no later than three days after the amendment has taken effect.

Queensland

In Queensland, a continuous interest had been shown in keeping the Queensland Statute Book in a clear and orderly state. Sir Samuel Griffiths ²⁵ apparently did valuable work in the way of codifying and consolidating the Statute Book. In 1908, the Queensland legislature passed the Statute Law Revision Act, which authorised the publication of Acts as amended by any subsequent enactments. That Act made it clear that it was not necessary to reprint the amending Act.

Before 1 June 1992, Queensland Acts were consolidated and individually reprinted. On that date, the Reprints Act 1992 came into force and Queensland legislation became subject to a new reprint regimen. The object of the Act is to facilitate the updating and ready availability of Queensland legislation. The Act includes extensive reprinting powers of an editorial nature, although not all of the powers are exercised in the case of every reprinted Act. The Queensland Office of the Parliamentary Counsel maintains a database of Acts in force; Acts as passed; Bills; subordinate legislation as made; and repealed legislation. This enables member of the Queensland public to have ready access to the current statute law. The database is to be found at http://www.legislation.qld.gov.au/OQPChome.htm.

South Australia

The position in South Australia was that, until the 1920s, that State’s amending legislation consisted of a hotchpotch of textual and non‐textual amendments. ²⁶ A major consolidation of South Australian statutes took place in 1936, by which time the use of the textual amendment method had become the norm. In 1934, the South Australian legislature passed an Acts Republication Act. As one would expect from the title, this authorised the publication of amended Acts. A further full consolidation of the South Australian Statute Book was undertaken in 1976. Since all legislation is now kept on an electronic database, it is now the practice in that State to publish amended Acts to coincide with the commencement of the relevant amendments. The website is to be found at http://www.legislation.sa.gov.au. A visitor to the site is able to download not only the current statutory text but also historical versions of the statutory text. This greatly facilitates research.

Tasmania

In Tasmania, the Amendments Incorporation Act 1906 authorised the publication of amended Acts. However, even before 1906, some Acts were reprinted, but they were a compilation of principal Acts and amending Acts, with no attempt being made to incorporate the amendments. From 1906 to 1997, reprinted Acts incorporating amendments to them were published periodically by the Tasmanian Government Printer. In 1997 a database of Tasmanian Legislation in electronic form was established. The database contains principal and subordinate legislation as passed by Parliament or notified in the Government Gazette and up‐to‐date consolidations of principal and subordinate legislation. The Tasmanian Legislation website gives free public access to up‐to‐date Tasmanian legislation. Hard copy reprints are available from the Tasmanian Government Printer. As is the case with most of the other States, a reprinted Act has evidentiary value but is not conclusive as to the actual state of the law in question.

Western Australia

In Western Australia, the earliest Act authorising the reprinting and publication of amended Acts was the Statutes Compilation Act 1905. ²⁷ However, Acts as amended were being reprinted in a consolidated form even before the passing of the 1905 Act. In moving the second reading of the Bill that led to that Act, the Minister commented that:

In this State, we have adopted a procedure which will be found in the Justices Act, the Criminal Code, the Electoral Act, and a number of more recent statutes. The Government Printer, in printing subsequent copies of any statute that has been amended, is entitled to embody the amendments. ²⁸

Later, in 1923 the Amendments Incorporation Act 1923 was passed. The Minister moving the second reading described the Bill as a measure that ‘will make for the automatic consolidation of statutes’. ²⁹ Section 2(1) of the Act provided that:

When any Act has … been amended … then in every reprint of the Act by the Government Printer the Act shall be printed as so amended, under the supervision of the Clerk of the Parliaments.

The 1923 Act did not repeal the 1905 Act, but instead co‐existed with it. The two Acts appear to provide different means of achieving the same end. However, the Minister who moved the second reading of the 1923 Act saw a distinction, saying ‘but there is also a great difference between the Act he has quoted [Statutes Compilation Act 1905] and the Bill before the House. The latter is merely for reprints, while the former refers to any consolidation.’

The 1923 Act was repealed by the Amendments Incorporation Act 1938, while the Statutes Compilation Act 1905 remained in place until its repeal by the Reprints Act 1984, which is the Western Australian Act that currently authorises the publication of amended statutes. Under that Act, reprints are prepared by the Western Australian Parliamentary Counsel Office and published and sold by the State Law Publisher. In recent years, the demand for reprints has lessened because all Western Australian statutes and statutory rules are now available electronically in an up‐to‐date form on a website maintained by the State Law Publisher. ³⁰ However, the Parliamentary Counsel Office still maintains a comprehensive reprinting programme that has the flow‐on effect of improving the reliability of the electronic database.

The Western Australian Parliamentary Counsel Office recently completed ³¹ the task of capturing all of the year‐by‐year statutes of the State of Western Australia and the colony that preceded it in electronic form. This should prove to be a boon for people wishing to research the Western Australian statute book.

Australian Commonwealth

The Commonwealth of Australia was established on 1 January 1901. One of the earliest amending Acts enacted by the Commonwealth Parliament was the Commonwealth Franchise Act 1902. This was a non‐textual amendment. The following year saw the first use of the textual amendment method. ³² In 1904, The Defence Act 1904 (an amending Act) required that all amendments of the Defence Act 1903 be incorporated in any future reprints of the principal Act. This provision was a precursor to the Amendments Incorporation Act 1905, which applied the same principle to all Acts and also required reprinted Acts to include notes.

In 1913, the Commonwealth published a reprint of all Commonwealth Acts in force on 1 January 1912, except Appropriation and Supply Acts. The publication included an index of all the Acts, and a table showing Acts enacted under the various provisions of the Australian Constitution. The Statute Law Revision Act 1934 was the first general revision of Commonwealth statutes. The Act ‘tidied up’ the Commonwealth Statute Book in preparation for a general reprint of Commonwealth Acts.

In 1936, the Commonwealth published a reprint of all Commonwealth Acts in force ‘as at 1 January 1936’. The reprint was in four volumes, with the fourth volume being an index. The first three volumes contained 2959 pages. Further volumes containing reprints of amended Commonwealth Acts were published in 1952 and 1974. In 1958, the Commonwealth published a reprint of all regulations in force as at 31 December 1956. ³³ Since then, the Commonwealth has adopted the ‘rolling reprint’ approach, which involves reprinting Acts when they are amended and providing loose‐leaf binders in which to store them. ³⁴

In more recent times, the Commonwealth Attorney‐General’s Department has established a fully up‐to‐date information retrieval system called ComLaw. ComLaw is an integral part of the Australian Law Online initiative to bring low or no‐cost access to the law for the Australian public. ComLaw contains:

• Commonwealth primary legislation, as well as other ancillary documents and information, in electronic form, and

• The Federal Register of Legislative Instruments (FRLI), which that was established on 1 January 2005 under the Legislative Instruments Act 2003 as the authoritative source for legislative instruments and compilations of legislative instruments.

As new, up‐to‐date compilations are added to ComLaw and the FRLI, the previous compilations are retained as historical data. If a user wants to see an item of legislation as it was in force on a particular date, this can be found in the historical data. The historical data also includes legislation of the Commonwealth that is no longer in force. The fact that principal Commonwealth statutes and statutory rules are amended only by the textual method facilitates the instant electronic consolidation of those statutes and statutory rules. The upshot is that all members of the Australian public can gain immediate access, free of charge, to the up‐to‐date versions of all Commonwealth statutes and statutory rules in which they are interested.

Northern Territory

Subsequent to its separation from South Australia in 1911, the Northern Territory of Australia became self‐governing and was empowered to enact Ordinances for the governance of that Territory. In 1960, the Territory’s Ordinances (covering the period 1911–1960) were consolidated. The consolidation was carried out under the Amendments Incorporation Ordinance 1938–1961. Since then, while some individual Northern Territory laws have from time to time been reprinted in individual pamphlet reprints, the Territory’s laws have not been further reprinted in a consolidated form. In 1974, the Legislative Council was replaced by a fully‐elected Legislative Assembly, which is empowered to enact Acts rather than Ordinances.

Electronic forms of legislation were introduced as early as the late 1970s. Up‐to‐date versions of Northern Territory legislation are now to be found in theCurrent Northern Territory Database. ³⁵ This database contains all the current consolidated Acts and subordinate legislation of the Northern Territory.

Each consolidated document contains amendments made to the original document that are in force. Amendments that have been made, but are not in force, are not included. The date on which a consolidated document is shown as being in force is the date on which the last amendment of the document came into force.

Historical consolidations of Acts and subordinate legislation of the Northern Territory are available on the Northern Territory Legislation History Database. Bills introduced in the Legislative Assembly, and numbered Acts and subordinate legislation of the Northern Territory, are available on the Register of Legislation Database.

All of the databases are also available on the Hansard & Legislation page of the Northern Territory Government website at 〈http://www.nt.gov.au/lant/hansard/hansard.shtml〉.

Amendments continue to be included in a reprint under the Amendments Incorporation Act and the timeline for this process is no later than two weeks after an amendment commences. To facilitate the production of up‐to‐date versions of principal Acts, amendments are made textually.

Australia as a Whole

In addition to the legislation databases established by the Australian Commonwealth and the various States and Territories of Australia, the Australasian Legal Information Institute (AustLII) provides free internet access to Australasian legal information (including primary and secondary legislation). AustLII’s broad public policy agenda is to improve access to justice through better access to legal information. AustLII has become one of the largest sources of legal texts on the Internet, with over 20 gigabytes of raw text materials and over 4 million searchable documents. ³⁶

The position in New Zealand

New Zealand departed from the English form of statutes at a very early date. ³⁷ One major departure was the inclusion of an ‘Analysis’ (in effect a table of contents). It was many years before this useful practice was adopted in Australia. The textual method of amendment was adopted at an earlier date, although non‐textual ‘stand‐alone’ amending Acts were enacted on rare occasions. ³⁸

In 1908, a full revision of New Zealand statutes was undertaken. Consequently, it is almost unheard of to have to look for a New Zealand statute enacted earlier than that year. The first general reprint of the Public Acts was undertaken in 1931. A further general reprint of Public Acts began in 1957. The reprints were authorised by the Statutes Drafting and Compilation Act 1920 (still in force in 2005). Reprinted versions of statutory regulations have been published under the authority of the Regulations Act 1936.

After 1957, statutes were reprinted individually and published as part of the annual volumes for each year. Reprints of regulations were done only occasionally. ³⁹ This approach to reprinting statutes continued until 1979 when the Reprinted Statutes of New Zealand series commenced. This series ⁴⁰ comprised bound volumes of reprinted statutes published annually. Individual reprinted Acts were also available in pamphlet form. The intention was to reprint progressively all statutes on the New Zealand statute book to the point where every public Act of general application would be available in a form that was not more than 10 years old, but with Acts in common use or those that had been heavily amended being reprinted more regularly. This system continued until 2003 when it ceased and was replaced by the reprinting of individual statutes in pamphlet form only. This has enabled a significantly greater number of reprints to be compiled and published. Reprints are published using the reprint powers in the Acts and Regulations Publication Act 1989, which allows the reprinted statutes to be published in the format and style adopted for New Zealand legislation in 2000 and to reflect current drafting practice. Statutes and statutory rules are reprinted in accordance with a reprints policy and an annual reprints programme that are designed to ensure that reprinting meets demand. Extensive consultation is undertaken each year to determine which statutes and statutory rules are to be reprinted.

The Legislative Enactments of New Zealand (LENZ) enables up‐to‐date versions of statutes and statutory rules to be made available to the public free via the internet. The system (formerly known as the Public Access to Legislation (PAL system)) is an integrated drafting and publishing system that allows legislation to be made available in printed and electronic form from a database owned and maintained by the New Zealand Government. The database is in the process of being ‘officialised’, that is, checked for accuracy and made consistent with current format and drafting practice with a view to the electronic version becoming authoritative in the same way as hard copy. It is also intended to use the system to produce prospective consolidations, that is, versions of how a statute will look with proposed amendments incorporated into it. Bills at all stages of the parliamentary process are also available on‐line.

The position in Ireland

Although no general revision of the Statute Book has yet taken place in Ireland, as mentioned elsewhere, some major statutes have been consolidated in recent years and, since the millennium, it has become the practice to use the textual method for amending statutes. Apart from the Social Welfare (Consolidation) Act 1981, theSocial Welfare (Consolidation) Act 1993, the Taxes Consolidation Act 1997 and the Stamp Duties Consolidation Act 1999, there have very been few consolidations of Irish statute law in recent years. One recent exception has been the Land and Conveyancing Law Reform Act 2009 (Ire), which provides for a comprehensive reform and modernisation of land law and conveyancing law in Ireland and is the result of a joint project undertaken by the Department of Justice, Equality and Law Reform and the Law Reform Commission. The Act repeals in whole or in part in the region of 150 pre‐1922 statutes and their replacement, where appropriate, with statutory provisions more suited to modern conditions.

The Statute Law (Restatement) Act 2002 ostensibly enables the Attorney General to authorise a statute, or portion of a statute, to be made available in printed or electronic form in the form of a single text certified to be a statement of the law contained in the provisions of the statutes to which it relates. To date, no restatements have been made under the Act. The main reason for this is that the Act is only useful for the restatement of Acts and statutory instruments that have been amended only by the textual method. However, most Irish principal Acts have been amended by a hotchpotch of textual and non textual amendments. So the Act can only come into its own when all non‐textually amended Irish Acts and statutory instruments have been consolidated and re‐enacted. Since there are no votes in undertaking such consolidations, there is unlikely to be any improvement in the Irish position in the near future. This is regrettable because, in the absence of regular consolidation, it is extraordinarily difficult to find out exactly what the law is under Irish statutes that have been amended (whether textually or non‐textually).

One recent development in Ireland has been the revision of pre‐1922 ⁴¹ statutes. As a preliminary step to revision, a review of all pre‐1922 statutes was undertaken. The upshot was the enactment of the Statute Law Revision Act 2007. This Act followed the examination of 26,370 pre‐1922 statutes of a public and general nature. Of those Acts, 9219 were already wholly repealed and 12,562 were found not to be applicable to Ireland. This left 4589 statutes in force, of which 3225 were expressly repealed and 1364 were expressly retained by that Act. The effect of not being included in that Act was that those United Kingdom Acts that did not apply to Ireland before 1922 were implicitly repealed and thus formally ceased to be part of the Irish statute book.

In 2009, the Statute Law Revision Bill 2009 (Ire) was published. This Bill followed a review of 3182 pre‐1751 Private Acts (Irish, English and United Kingdom) and 7543 pre‐1851 local and personal United Kingdom Acts. Apart from those Acts already repealed, 8957 were assessed as being not applicable to Ireland. A further 138 Acts were identified as being not suitable for repeal as they were found to contain provisions that could have a continuing relevance. The remaining 1351 Acts have been assessed as suitable for express repeal.

Because the Statute Law Revision Act 2007 (Ire) and the Statute Law Revision Bill 2009 list for the periods involved all the Acts that are not repealed, they will together provide a comprehensive list of all primary legislation still in force for those periods at the time of enactment of the 2007 Act and, when enacted, of the 2009 Bill.

However despite these developments, progress in achieving a coherent, up‐to‐date and accessible Irish statute book can, at best, be said to be only modest.

The position in Jersey, Channel Islands

In 2005, a full‐scale revision of statutes was completed in Jersey. As a result of the revision, it is now relatively easy for the Jersey Statute Book to be kept up to date even when statutes are extensively amended. All Jersey statutes continued to remain in force after the revision but were, for example, made gender neutral and in most cases were renumbered, with spent provisions being omitted.

The position in Canada

As early as the middle of the nineteenth century, what were then Canadian colonies recognised the need to completely update their legislation so that it would be in a form accessible to members of the public. The procedure developed for the purpose was called a ‘statute revision’. In its ordinary sense, the term ‘revision’ means the correction and rewriting of a text that is for any reason found to be unsatisfactory. Revision in this sense is quite different from ‘consolidation’, which is defined and described elsewhere in this article. In the Canadian context, the term ‘statute revision’ has come to mean a combination of consolidation; rewriting whenever necessary; and rearranging the various statutes and their respective contents. In undertaking the revision of a statute, the revisers are usually empowered to modify the existing text, but only so long as they do not alter the substance of the law. Apart from correcting editing, grammatical, and typographical errors, the language of a statute may be altered in order ‘to preserve a uniform mode of expression’ as long as the substance is not changed. Changes to reconcile ‘seemingly inconsistent enactments’ are also allowed. If the different official language versions of a statute are incompatible, changes can be made to reconcile them. More recently, action has been taken to standardise the wording of frequently used provisions and to shortening long sections and subsections by splitting them into shorter and more readable provisions. Efforts have also been made to eradicate archaic expressions (including most Latinisms, such as mutatis mutandis).

At the federal level, several general revisions of the statutes of Canada have been made since Canada was established in 1867. The first was in 1886, less than 20 years after federation. Further revisions of federal statutes were undertaken in 1906, 1927, 1952, 1970 and 1985. In each case, a Statute Revision Commission was appointed under the authority of an Act of Parliament. The Commission’s brief was to examine, consolidate and revise all public general statutes. The revised statutes were then published in a series of volumes under the title Revised Statutes of Canada with the addition of the year of publication. One way in which a statute revision in Canada significantly differs from a reprinted statute published in the various Australian jurisdictions is that the Acts authorising a revision of Canadian statutes provided that, after the revision was completed and the revised statutes had been deposited in the office of the Clerk of the Parliaments, they were to be brought into force by proclamation of the Governor General. The authorising Acts also provided that, on the coming into force of the revised statutes, the pre‐revision versions of the statutes were to be repealed.

After the 1970 revision, a decision was taken to replace the system of appointing an ad hoc commission for each revision by establishing a permanent statute revision commission whose members and staff would be employees of the federal Department of Justice. However, those employees were required to be experienced in drafting and editing legislation. One of the principal reasons for appointing a permanent commission was to make it possible to undertake revisions of statutes on a continuing basis with a view to shortening the intervals between the years in which revised statutes were published. The Minister of Justice has recently appointed three new members of the Commission. ⁴² The Cabinet also brought into force new provisions of the Act (re‐named the Legislation Revision and Consolidation Act) that provide for the revision of regulations (in addition to Acts) and give evidentiary force to the electronic consolidation published by the Minister of Justice. ⁴³

As early as 1970, a computer database of all federal legislation was established and the Act establishing the 1974 Statute Revision Commission provided not only for the continuing revision of both statutes and regulations but also for the possibility for the institution of a loose‐leaf system of continuous consolidation of statutes. However, the loose‐leaf system has now been abandoned since statutes and statutory rules became accessible electronically. The change to a system of continuous revision meant that it was no longer possible to repeal and replace the whole Statute Book at once. ⁴⁴ The current practice is for the federal Minister for Justice to lay drafts of revised statutes before the appropriate parliamentary committee for examination and approval. After the committee has approved the revised statutes, the Minister then introduces a Bill to bring them into force.

In the early years of the Canadian federation, the Canadian provinces were rather more assiduous than federal Canada in keeping their statutes up to date. The system for revision adopted at the provincial level is similar to that used at the federal level. Thus, Ontario has undertaken a number of general revisions entitled Revised Statutes of Ontario, the first one being in 1877. In Quebec, the first revision was undertaken in 1888 and others have been undertaken at regular intervals since then. Similarly, the provinces of Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, and Saskatchewan have all undertaken revisions of their statutes at regular intervals since the establishment of the Canadian federation.

British Columbia carried out a major revision in 1996. The 1992 Statute Revision Act ⁴⁵ that authorised the 1996 general revision of British Columbia statutes separately authorised general revisions of all Public Acts and limited revisions of individual Acts or parts of Acts to allow for a different citation method between these. The 1992 Act also provided specific authority for considerable plain language redrafting that was used, given resources, for a number of key statutes. As is the case with other Canadian jurisdictions, British Columbia has never used its authority to carry out limited statute revisions, other than for Private Acts. ⁴⁶ However, it is believed that the Office of Legislative Counsel in British Columbia does plan to use its limited revision powers to update major Acts, focusing on those that have been subject to significant amendment. Implementation of these plans is dependent on the availability of legislative drafting resources that are not immediately needed for the preparation of legislation that is on the Government’s legislative programme. However, limited revisions will only be possible if the Government provides the funding for the resources needed to produce them. Past experience suggests that providing funds for this kind of activity has not been high on the Government’s political agenda.

British Columbia has had a loose‐leaf consolidation since the Revised Statutes of British Columbia 1979. This is prepared by the British Columbia Office of Legislative Counsel in conjunction with the Queen’s Printer.

The province’s electronic consolidation is prepared by the Queen’s Printer, based on information from the on‐going Table of Legislative Changes maintained by the Office of Legislative Counsel. However, the electronic consolidation is not official, which is probably just as well as it is not uncommon to find amendment errors that arose during the consolidation process. ⁴⁷

In recent years, the loose‐leaf consolidation has fallen many months behind the electronic consolidation. This is partly because it requires much more work to ensure accuracy of the paper version and to do the publishing formatting.

Saskatchewan is currently in the process of carrying out a revision. Other Canadian provinces have ceased carrying out revisions at regular intervals. For example, Ontario has not undertaken a revision since 1990. ⁴⁸ In all Canadian jurisdictions, continuing electronic consolidation has now largely supplanted paper ⁴⁹ revision.

Why the Statute Book may not be up to date, accessible and coherent

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. Often some of these provisions will deal with matters other than the one with which the user is concerned.

As anyone who is familiar with the Statute Book of any common law jurisdiction will be aware, the bulk of legislation amends existing legislation and it seems to me that a major source of the problem lies in the method by which statutes and statutory rules are amended. In essence, two methods are available for amending legislation. One method is the non‐textual or indirect method. The other is the textual or direct method. ⁵⁰

A non‐textual amendment does not alter the text of the old law but consists of a discursive statement or narrative of the effect of the amendment on the old law. Because the text of the law that is to be amended remains unaltered, the amendment operates indirectly. With this technique, the amending law does not merge with the Act being amended. Nor does it lose its separate identity in the Statute Book. As Thornton ⁵¹ points out, use of the method involves legislating referentially. The ultimate effect is a cumulative one as statute is piled on statute, with the result that comprehension becomes more and more difficult.

An example of a non‐textual amendment is to be found in section 1 (4) of the Infanticide Act 1949 (Ire), which states as follows:

Section 60 of the Offences Against the Person Act 1861 shall have effect as if the reference therein to the murder of any child included a reference to infanticide.

Another example is to be found in section 37 of the Town and County Planning Act 1968 (UK), which non‐textually amends section 149 of the Town and County Planning Act 1962, section 37(3) provides as follows:

For a person to be treated under section 149 (1) or (3) of the principal Act (definitions for the purposes of blight notices provisions) as owner‐occupier or resident owner‐occupier of a hereditament, his occupation thereof at a relevant time or during a relevant period, if not occupation of the whole of the hereditament, must be, or, as the case may be, have been occupation of a substantial part of it.

The perceived advantage of a non‐textual amendment is that it should make sense when standing alone, although that is clearly not the case with the example taken from the Infanticide Act 1949. The user should be able to ascertain the effect of the amendment, a matter of convenience that is claimed to be important from a legislator’s perspective. One advantage that non‐textual amendments can have is that of effecting, in one measure, the blanket amendment of a number of different provisions.

Non‐textual amendments are often used to make global changes. For example, on a change of currency, it is necessary to convert all statutory references from the old currency to the new currency. When Ireland changed to decimal currency in 1970, this was achieved by section 9(1) of the Decimal Currency Act 1970 (Ire) which provided a general formula for amending existing references to outmoded shillings and pence. Likewise, the Euro Changeover (Amounts) Act 2001 (Ire) achieved the same purpose, when the euro replaced the Irish pound. ⁵²

An over‐reliance on the use of non‐textual amendments is that a set of cross‐references, interpretations and qualifications develops. This adds to the complexity and lack of coherence of the Statute Book. As a result, it becomes exceedingly difficult (if not impossible) to collect the text of legislation on a particular topic in a single instrument. Even if an attempt is made to produce such an instrument, the result will be virtually unusable, since it will be impossible to create a unified, coherent text. For these reasons, the current view is that textual amendments are to be preferred for their relative simplicity. ⁵³ For instance, section 1(4) of the Infanticide Act 1949 (Ire) would have been as effective had it directly amended the text of section 60 of the Offences Against the Person Act 1961. A textual amendment in that case could have said: ‘Section 60 of the Offences Against the Person Act 1861 is amended by inserting “or infanticide” after “murder of any child”.’

This would have been a tidier method of amendment and would have facilitated the subsequent consolidation of the 1861 Act. As it now stands, section 60 has to be read as if the words ‘or infanticide’ are to be implied in the section but they do not form part of its text. Thus, the Statute Books of those jurisdictions where non‐textual amendments are used are a curious mixture of textual and non textual amendments. Thornton’s observations on this are apposite:

The traditional … style, therefore, produced a pottage comprising direct amendments, indirect amendments and provisions incorporating both techniques. The effect, at least to one not nurtured from his early years on English statutes, is confusing, particularly so as it rests on a stream of consistently invidious and inevitably inconsistent decisions as to which amendments should properly be effected by one method, which by the other, and which of both. ⁵⁴

On the other hand, a textual amendment is one that amends an existing enactment or statutory rule by repealing words or provisions; by substituting new words or provisions for existing ones; or by inserting into the enactment or rule additional words or provisions. When this method is used, the problem faced by the legislator or user is that the change made to the law is not immediately intelligible. In order to understand the amendment and what it does, it is necessary for the legislator or user to read the text of the amended enactment or rule with the amendment incorporated into it. In some jurisdictions, parliamentary counsel include in their amending Bills a note showing what a provision will look like when the amendment is incorporated. ⁵⁵

However, in most jurisdictions a comprehensive explanatory note is provided so that the legislator or user can immediately see what the existing law is; what the amendment does to that law; and what effect the amendment has on the existing law. In some cases, in order to provide a complete explanation of the amendment, the explanation has to be longer than the amendment. In most legislative drafting offices, these notes are prepared by the parliamentary counsel responsible for drafting the relevant Bill. ⁵⁶ But even in cases where explanatory notes are prepared by government officials, the final responsibility for their contents should ⁵⁷ remain with parliamentary counsel who drafted the Bill.

In my view, the advantages of the textual amendment method greatly outweigh the non‐textual method. Thornton has listed a number of them. ⁵⁸ These are as follows:

• The [textual] method produces law that is simpler and easier to understand, provided that the reprints, revisions or consolidations are produced frequently.

• The [textual] method reduces the proliferation of statutes.

• To some extent, [the textual method] makes consolidation a running exercise thus facilitating the production of consolidated reprints or revisions without the need for specific legislation.

• By encouraging the integration of new and modified provisions with the old, [the textual method] encourages a view of the law on a particular subject as a whole rather than as a series of interwoven but separate parts.

• By directly integrating the new provisions with the old, [the textual method] reduces the potential for repeal by implication.

• [The textual method] facilitates annotation.

• Not least, [textual] amendments are easier to draft.

I would add two further advantages. Because textual amendments are relatively easy to incorporate into the relevant principal enactment or statutory rule, the resources involved in keeping the law up to date are much reduced. This is because the incorporations can be made by skilled clerical staff, whereas the services of experienced, specialist lawyers are required in order to prepare consolidations of laws that are a mixture of non‐textual and textual amendments. Moreover, if a principal statute or statutory rule is amended only by textual amendments, it becomes unnecessary to include provisions such as the following: ⁵⁹

This Act and the National Treasury Management Agency Act 1990 shall be construed together as one and may be cited as the National Treasury Management Agency Acts 1990 and 2000.

Tidying up the Statute Book

So how should the responsible authorities keep their Statute Books accessible and coherent? A number of approaches can be adopted. One is to enact statute law revision legislation that clears the Statute Book of deadwood. Such legislation repeals those statutes that have become obsolete and have no practical value. The usual practice is expressly to provide that the revision does not affect any existing rules or principles. But statute law revision is only a partial solution as old statutes that are still in operation are left untouched. Moreover, the physical state of the Statute Book remains intact. The old statutes that have been repealed, and therefore no longer form part of the law, remain in the official volumes of statutes. The user still has to check whether a particular provision is in force or not.

Another approach is the periodic re‐publication of statutes in their revised form, incorporating the amended text and purged of repealed and spent provisions. As already mentioned, this kind of approach is adopted in the Australian Commonwealth and its States and Territories. Each of those jurisdictions has special legislation that facilitates the periodic reprinting of statutes and statutory rules. ⁶⁰ The process involves publishing a statute in a single updated text that takes account of all amendments that have been made to it since it was first enacted.

A reprinted Act is thus simply a means of providing an up‐to‐date, accessible and coherent version of existing legislation. Although the process is an administrative one, the publisher ⁶¹ is usually allowed to make certain style changes, such as changing numbers or dates from words to figures or changing long‐form cross‐references to short‐form ones. This method not only ensures that accessible and coherent statutes and statutory rules are available to users, but it also obviates the need to take up the time of the legislature, which is at best a scarce resource. Although a reprinted statute or statutory rule does not of itself normally have the force of law, it is prima facie evidence of the law contained in the provision to which it relates.

In Australia, ⁶² New Zealand and Hong Kong, electronic versions of statutes are now normally publicly available within days if not hours after the amendments have taken effect. Also in Australia, pamphlet copies of updated versions of statutes and statutory rules are also published on a periodic basis. The Hong Kong Department of Justice, which produces consolidated versions of Hong Kong statutes and statutory rules in a loose‐leaf system, publishes replacement pages for legislation shortly after it has been amended. In Canada, the Department of Justice publishes electronic versions of updated versions of federal statutes and regulations. ⁶³ Up‐to‐date electronic versions of statutes and statutory rules of Canadian provinces are similarly available. ⁶⁴

However, the effectiveness of the reprint or compilation system as used in Australia and other Commonwealth countries is closely tied to the use of the textual method of amendment. If the public is to have access to up‐to‐date, accessible and coherent revised versions of amended statutes and statutory rules, it is essential that the amendments should be effected only by the textual method. As the Renton Report makes clear, ⁶⁵ to the extent that there is a conflict between the needs of the legislator and the statute user, the needs of the user should prevail. The report goes on to say:

Many statutes are already difficult enough to understand in themselves without making their sense even more abstruse by amending them in a manner which further perplexes the user. There is no doubt that the non‐textual amendment of existing legislation often adds to the burdens of the user, particularly when the consolidation of heavily amended legislation is held up for one reason or another.

I could not agree more!

So why has use of the non‐textual method been so prevalent in past amending statutes? The following extract from Sir Courtenay Ilbert’s work The Mechanics of Law Making seems to provide the answer: ⁶⁶

In the first place, it [i.e. an Act that textually amends another Act] is absolutely unintelligible without the text of the enactments which it is proposed to amend, and even if these objections can be removed by means of an explanatory memorandum, a bill thus drawn is, as anyone who has watched attempts to frame parliamentary amendments will readily understand, extremely difficult to amend, and thus presents unreasonable obstacles to legitimate discussion in committee. For these reasons, this technical method of amendment is hardly ever adopted in England except in the case of non‐contentious measures. In these circumstances, the ordinary mode of amending an Act is to state in the amending bill the effect of the amendment proposed to be made. This is the commonest mode, and for English parliamentary purposes is the most convenient, because under it every Member of Parliament who knows anything of the subject learns at once the nature of the amendment proposed. And in some cases, where the amendment virtually overrides a large portion of the existing enactment, it is practically the only possible method.

Regrettably, this view subordinates the needs of statute users and the long‐term coherence of the Statute Book to the short‐term needs of parliamentarians. And, as Ilbert conceded, there are other ways of communicating the effect of proposed amendments to parliamentarians. He also expresses with approval the approach adopted in the Indian legislature. Having stated that ideally amendments should be made by repealing and replacing the whole of the section or part affected, he went on to say:

[T]he next most convenient course, from the point of view of administration, is to express the amendments in a technical form, like notices of amendments to bills in Parliament, or like errata or addenda in books; that is to say, in the form of directions to strike out particular words or sentences from an enactment, and to add others. This it is the form frequently adopted by the Indian legislatures. It enables a clerk to note up, almost mechanically, the alterations in the statute law, by simple striking out or writing in the necessary words.

Thanks to this method of amendment, the Legislative Department of the Government of India is able to issue periodically revised editions of the most important Indian Acts, which embody the amendments up to date, and thus, for many purposes, take the place of repealing and consolidating Acts. But for purposes of practical administration such reprints are of great convenience.

One cannot help wondering why a system that was good enough (and thought to be even desirable) for India was not considered appropriate for the United Kingdom! In my view, the approach adopted in India (probably as a result of the influence of the British jurist, Sir James Stephen) was the right one. ⁶⁷ The adoption of a similar approach in Australia, Canada and New Zealand has certainly helped to ensure that each jurisdiction in those countries has a Statute Book that is up to date, accessible and coherent. ⁶⁸

Although the Renton Report favours the textual method of amendment, it nevertheless concludes that its adoption will never eliminate the need for consolidation, if only because there can be no rigid rule that amendment must always be effected textually and so there is bound to continue to be some flow of legislation having non‐textual effects on earlier legislation on the same matter. However, I have to disagree with this conclusion. Even on the rare occasion when non‐textual amendments are necessary, ⁶⁹ this should only be regarded as a stopgap measure. I believe it should always be possible ⁷⁰ to convert those amendments to textual ones shortly after the enactment containing them.

A third method for alleviating the problem is to enact consolidating legislation. ⁷¹ A consolidating Act is one that re‐enacts all the relevant provisions on a particular subject in one statute, making, at most, only minor amendments to the existing law. ⁷² Many Parliaments in common law countries have special parliamentary procedures to expedite the enactment of such legislation. For example, in Ireland, several Acts have been passed using such procedure. ⁷³ The Taxes Consolidation Act 1997 (Ire) exemplifies the benefits associated with consolidation. It consolidated the law on income tax, capital gains tax and corporation tax and, in the process, reduced its bulk. Provisions that were formerly contained in 40 separate statutes are now found in a single Act, with over 2000 different sections being reduced to 1104 sections and 50 schedules being condensed to 32. ⁷⁴ The consolidated Act was drafted and structured with users (principally taxation officers, taxpayers, tax practitioners and accountants) in mind. There is no doubt that the Act’s more coherent format eases the task of finding the relevant Irish law on taxation. However, despite the Act having been quite extensively amended since 1997 and those amendments having been made textually, no up‐to‐date version of the Act is currently available.

A fourth method is to carry out statute revisions as is the practice in all Canadian jurisdictions. A revision will normally go further than a consolidation. In the Canadian parlance, ‘statute revision’ has come to mean a combination of consolidation, rewriting where necessary and rearranging the order in which provisions appear. As is the case with a pure consolidation or a reprint, the only modifications that are permitted are ones that do not change the substance of the statute or regulation under revision.

A fifth method is a codifying statute, which enacts in one statute all the relevant provisions on a topic, often making major changes to the existing law. ⁷⁵ Common law jurisdictions have tended to be hostile to codification. But there are exceptions. Queensland, Tasmania and the Northern Territory of Australia have all codified their respective criminal laws, as has New Zealand. And in Ireland, the Succession Act 1965 can be cited as an example of a codifying measure. These measures help to reduce the bulk and cumbersome nature of the Statute Book, but they are of limited assistance. Due to the time and effort involved in their drafting and preparation and competing demands on the parliamentary agenda such legislation tends to be infrequent.

If a country’s Statute Book is not systematically kept up to date on an ongoing basis, the task of revising it and making it accessible and coherent will be a monumental one. If the country’s laws have not been consistently amended by the textual method, it will mean that the reprint method will not work and they will have to be consolidated as part of a comprehensive programme. Such a programme will involve a commitment of financial and human resources (through, for instance, the recruitment of additional legislative drafting staff) which historically Governments have been notoriously reluctant to approve. Moreover, it would require the allocation of time on the legislative agenda, at times when the Government might consider other proposals more desirable or politically important.

As part of the process, the manner in which legislation is published needs to be addressed. Legislative reform and statute law revision in itself does not reduce the actual physical bulk of the volumes of statutes that retain amended and repealed legislation. Statute users want (and need) to be provided with the up‐to‐date text of legislation, not to be presented with the opportunity to engage in a fascinating intellectual challenge of navigating backwards and forwards through volume after volume of statutes. The publication of legislation in its current, as well as its historical, form is crucial and to this end the production on regular basis of a revised Statute Book is desirable. The publication on a commercial basis of the loose‐leaf consolidated statutes and statutory rules ⁷⁶ would certainly help. And, with the advent of modern computer technology, it is now feasible (as indeed has been frequently demonstrated in Australia and Canada) to produce electronic versions of updated statutes and statutory rules within days of their being amended. And of course, electronic versions of legislation are much, much easier to search than hard copies are.

Reforming an out‐of‐date Statute Book: what needs to be done

On the assumption that a Statute Book has become out of date, inaccessible and jumbled, here are the measures that I believe need to taken to rectify the situation so that an up‐to‐date, accessible and coherent Statute Book is available to both the organs of government and the citizens who are expected to comply with the law.

If the Statute Book of a country is not currently in an accessible and coherent form, it is necessary to institute a systematic programme of consolidation. ⁷⁷ If the existing Statute Book consists of legislation that is a hotchpotch of principal Acts, stand‐alone amending Acts and non‐textual amendments, it will be necessary to recruit a team of people experienced in drafting and editing legislation to systematically prepare consolidated versions of the existing statutes. As far as possible, this should be undertaken on the basis of one statute per topic. For example, there should be one statute dealing with companies; one statute dealing with road traffic; one statute dealing with animal welfare; one statute dealing with criminal law; and so on.

A single authority should be designated to oversee the programme of consolidation. Its function should be to set targets and priorities and to check the appropriateness of draft consolidations. It should be empowered to ordain that particular legislation should be included in the programme, irrespective of the wishes of government departments, some of which are notoriously reluctant to promote consolidations of legislation for which they have administrative responsibility. In most Australian jurisdictions, the relevant Parliamentary Counsel Office has assumed or been accorded responsibility for this kind of function and this has proved successful. Because few people are likely to understand legislation better than those who write it, arguably parliamentary counsel are the people best placed to fulfil this role.

As is the case with revisions in Canadian jurisdictions and reprints in most Australian jurisdictions, the consolidation team should be authorised to make changes such as:

• removing obvious inconsistencies between different provisions;

• standardising the wording of frequently used provisions;

• shortening long sections and subsections by splitting them into shorter and more readable provisions;

• ensuring the consistent use of gender‐neutral language; and

• eradicating archaic expressions (including Latinisms).

In conjunction with the consolidation programme, a firm decision needs to be taken to ensure that all future amendments to statutes and statutory rules are made only by the textual method. This should even extend to savings and transitional provisions contained in amending legislation. In the rare occasions where non‐textual global referential amendments are required, they should be converted to textual amendments at the earliest opportunity.

Once the consolidation programme is completed, the Statute Book will then be in a form that will allow statutes and statutory rules to be made available to the public in an updated, accessible and coherent form immediately after they are amended. I envisage that special legislation authorising a designated authority to publish updated statutes and statutory rules as and when appropriate. This legislation could be on the lines of Part 6A of the Interpretation Act 1987 (NSW), but it could equally be on the lines of Canadian legislation authorising the revision of statutes. ⁷⁸ Although the preparation of reprinted statutes and statutory rules would become a largely mechanical exercise that could be undertaken by competent clerical staff, I maintain that the most competent people for overseeing the reprints programme would be the local Parliamentary Counsel Office. This is because no one knows their way around statutes and statutory rules better than those who are responsible for drafting them. If the reprint method is adopted, both paper and electronic versions should be produced. To facilitate speedy updating, the paper version should be prepared and maintained in loose‐leaf form. Both paper and electronic versions should include:

• historical notes containing a table of amending statutes or statutory rules; and

• a list showing the provisions that were amended and the dates on which the amendments took effect.

Last but not least, a reprints or revision programme along the lines suggested has to be properly funded if it is to be successfully implemented. Unfortunately, there are few votes in undertaking a reform of the Statute Book. This is compounded by the difficulty in getting consolidation legislation through the legislature, even when there are special rules to ease its way over the legislative hurdles.

Nevertheless, 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. Moreover, no longer will the government official, lawyer or ordinary citizen have to hunt for the law scattered among umpteen different statutes and statutory rules that are often inconsistent with one another. The money will surely be money well spent!

Notes on contributor

Duncan Berry is a consultant Parliamentary Counsel at the Irish Office of the Parliamentary Counsel to the Government. He holds an LLM, MPP, GDSM, and SJD. He is also the Secretary of the Commonwealth Association of Legislative Counsel and the editor of the Association’s Journal ‘TheLoophole’.

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.