Collaboration between the state and the LII community

in improving access to legislation in a national
jurisdiction: a New Zealand example
DAVID NOBLE*
Abstract
After a brief and necessarily truncated review of some of the historical examples of state
provision of access to, and promulgation of, legislation (with a particular focus on the
Magna Carta given its 800 anniversary in the year of the conference) this paper
examines the approach taken in New Zealand since January 2008. From that date, when
the government’s legislation drafting and publishing system (LENZ) went live, the
New Zealand state institution with responsibility for the publication of legislation, the
Parliamentary Counsel Office (PCO) began making legislation freely available via the
web as well as via the traditional, and charged-for, printed paper version.
th

The relationship between the government-provided free access website
<http://www.legislation.govt.nz> and that provided by the New Zealand Legal
Information Institute <http://www.nzlii.org> is examined as an example of the type of
collaboration between the state and the LII community which can provide improved
access to legislation by the public in one national jurisdiction (and internationally).
The paper considers the scope for state institutions such as the PCO in New Zealand to
further improve access to, and the accessibility of, historic legislation of all kinds
through such collaboration with local and regional Legal Information Institutes such as
NZLII, AustLII and PacLII.
1

Introduction

Thomas Hobbes’ much quoted conclusion on the need for the promulgation
as well as the passing of legislation: ‘For to the nature of Lawes belongeth a
sufficient and clear Promulgation, such as may take away the excuse of
Ignorance’ remains as apposite now as it was in 16 century England. In the
20 Century in New Zealand the then Chief Justice, Sir Richard Wild said
much the same thing in a case concerning the future of the governmentowned print service:
1

th

th

*

1

Chief Parliamentary Counsel and Chief Executive of the Parliamentary Counsel
Office, New Zealand. October 2007 May 2016. This article is professional, non-peerreviewed expert commentary.
Thomas Hobbes, Leviathan (Scholar P, 1969).

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People must be told what Parliament is doing and must be able to
read the letter of the law.
2

In a seminal 1989 report, the New Zealand Law Commission emphasised
their view of the constitutional significance of the promulgation of law
within the jurisdiction:
Our purpose here is to stress again the central constitutional function
of the Government in making the law… known to the public.
3

2

A Selected History of Promulgation of Legislation

It seems axiomatic that those who produce laws, and in particular legislation
(as distinct from the growth of judge-made law through the development of
the common law or civil law processes) bear an equivalent burden or duty to
make those laws known to the subjects or citizens of that jurisdiction.
Looking briefly at ancient history in this respect there is evidence of early
promulgation in the form of the Code of King Hammurabi from the ancient
kingdom of Babylonia (18 Century BCE). Partial copies of the code exist,
carved into a 2.25 metre tall diorite stele column from Sippar and baked into
clay tablets (which can be viewed in the Louvre Museum, Paris, France). The
Code consists of 282 laws, with scaled punishments, adjusting ‘an eye for an
eye, a tooth for a tooth’ depending on social status. Interestingly however,
nearly one-half of the Code deals with matters of contract law, establishing,
for example, the wages to be paid to a driver of oxen, or a surgeon. Other
provisions specify the necessary terms of a transaction and establish the
liability of a builder for a house that collapses.
th

4

The Louvre records that over 30 copies, or partial copies of the Code have
been found on separate clay tablets (or stela) at Susa and in the wider
Mesopotamian region, indicating a clear understanding of the need for the
State to disseminate the content of laws to the subjects of those laws.
Interestingly for those charged now with promulgating legislation on behalf
of parliaments and other legislators, differences in the texts between those
stela shows that there were various versions of the Code.

2

VUWSA v Government Printer [1973] 2 NZLR 21.

3

Law Commission, Legislation and its Interpretation (NZLC R11, 1989).

4

Louvre Museum, The Code of Hammurabi (2016) Louvre
<http://musee.louvre.fr/oal/code/indexEN.html>.

Collaboration between the state and the LII community in improving access to legislation

73

By the 13 Century CE in England, dissemination of laws had moved on from
stone pillars and clay tablets to something more portable – high quality
calfskin made into vellum. This has more immediately obvious similarities to
the printed paper legislation of more recent times, although clearly still from
the pre-printing press era of mass production. It was this medium that was
used for the original and the subsequently transcribed copies of the Magna
Carta (1215). The Australian government is fortunate to hold, in the
Parliament House in Canberra, a good example of the 1297 reissue by King
Edward I, of the infamous bad King John’s Charter from 800 years ago.
th

5

It is worth noting, in passing, that depictions of the King signing the charter
(and its accompanying Charter of the Forests) are faulty as shown by the
copy in the Australian parliament: the Royal Assent was evidenced by the
attachment of the Great Seal rather than by a handwritten signature.
Promulgation (and drafting probably) depended a great deal on the Church
since, to an extent, King John had no interest in ensuring that the rights of
Barons and Freemen and the restrictions on his Royal Sheriffs, to which he
had agreed, were widely known. For this reason it seems likely that the so-

6

7

5

Research Section, Department of the Senate, Magna Carta (Great Charter), 1297,
Parliament House Canberra <http://www.magnacarta.senate.gov.au/>.

6

John appears seated on a throne, holding a sword in his right hand and a sceptre in
his left, and with the legend ‘+ IOHANNES DEI GRACIA REX ANGLIE DOMINVS
HIBERNIE’ (John, by the grace of God King of England and Lord of Ireland). On the
reverse is an equestrian portrait of John, riding with his visor open. The legend on
this side gives the king’s other titles, ‘+ IOHANNES DUX NORMANNIE ET
AQVITANNIE COMES ANDEGAVIE’ (John, Duke of Normandy and Aquitaine,
Count of Anjou).

7

Only four copies of Magna Carta dating from 1215 have survived the ravages of time
and Salisbury Cathedral is home to the best-preserved original manuscript. Elias of
Dereham, priest and steward of the archbishop of Canterbury is thought to have
brought Salisbury’s copy to Old Sarum in the days following the events at
Runnymede and it has remained in the Cathedral’s care ever since. A second copy of
the 1215 Magna Carta owned by Lincoln Cathedral is displayed at Lincoln Castle. Its
particular quality lies in the fact that it is written in an ‘official’ hand since Hugh of
Wells, then Bishop of Lincoln, was present at the sealing of the original charter at
Runnymede. This, together with the role of Stephen Langton, the Archbishop of
Canterbury at the time, and a significant mediator in the dispute between King John
and his Barons, who had been educated in Lincoln (a seat of radical thinking and
learning in the 12th and 13th Centuries) ensured that Lincoln was one of the
Cathedral cities to receive a copy of the charter. Interestingly the Lincoln copy,
received only four days after its sealing, contains numerous errors indicating the
haste with which the ‘official’ scribes were working. The other two surviving copies
of the 1215 version of Magna Carta are housed in the British Library. See Salisbury
Cathedral, Magna Carta Exhibition <http://www.salisburycathedral.org.uk/visit-whatsee/magna-carta-exhibition>;
Lincoln
Castle,
Magna
Carta

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called ‘Cathedral copies’ were transcribed by church scribes and despatched
to the various dioceses of England so that the contents of the charter could be
read out or at the very least made known more widely.
Finally, in this very brief and selective review, moving hemispheres and a
further 600 years to New Zealand during the period of early European
settlement (before the establishment of full self-governing assemblies or
Parliaments in 1854) great reliance was still being placed initially on the
Church and (later) the private sector to print, publish and promulgate laws.
William Colenso, originally from Penzance in Cornwall, by 1833 was
working in the London firm of Richard Watts, printers to the Church
Missionary Society (CMS). The CMS was seeking someone to set up and run
a printing press in the mission settlement at Paihia in the Bay of Islands.
Colenso was recruited and left England bound for Australia on the Prince
Regent in June 1834. He finally arrived at Paihia on board the schooner
Blackbird from Sydney on the 30 December 1834. Despite defective
equipment supplied by the CMS Colenso was highly productive as a printer.
Te Ara - The Encyclopedia of New Zealand records that, in addition to
printing the first pamphlet printed in New Zealand (a 16 page translation
into Maori of the Epistles of Paul to the Philippians and to the Ephesians on
17 February 1835) and the production of 5,000 copies of William Williams's
356 page Maori New Testament books, Colenso was also employed
producing government publications:
In October 1835 the first tract produced in English was printed by
order of the British Resident, James Busby, warning settlers about the
imperialist ambitions of the French Baron Charles de Thierry. Over
the following nine years other official notices and publications
appeared, including the first New Zealand government Gazette on
30 December 1840. Colenso’s most memorable work of this sort was
the printing of the Maori text of the Treaty of Waitangi on 17
February 1840. At the signing his cautious representations to
Lieutenant Governor William Hobson that many Maori were
unaware of the meaning of the treaty were brusquely set aside. His
observations recorded at the time were published as ‘The authentic

<https://www.lincolncastle.com/content/magna-carta>; British Library, Magna Carta,
<http://www.bl.uk/magna-carta>.

Collaboration between the state and the LII community in improving access to legislation

75

and genuine history of the signing of the Treaty of Waitangi (1890)’,
the most reliable contemporary European account of the signing.
8

The official Government Printing Office was not formally established until
1864, its purpose being to ensure the publication of legislation and Hansard
(10 years after the parliament first met in Auckland). During the 19 and 20
Century Parliament and government did not stand still in terms of
legislating for, and considering their role and duties in relation to, the
provision of access to the legislation that they were rapidly introducing and
passing. Similarly, considerable effort was put into producing compiled and
consolidated versions of legislation, particularly in the early 20 Century.
However, the resources and commitment to keep the statute book (let alone
the subordinate legislation ‘book’) up-to-date were never sufficient in a
printed paper-based environment. So, increasingly the late 20 and early 21
Century reports and legislation look more to developing technologies, the
internet and electronic/digital sources to solve that problem.
th

th

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3

st

State Provision of Free Access to Legislation in New Zealand
2007 Onwards

The Parliamentary Counsel Office in 2007 was however, still supplying huge
amounts of printed hard copy to the House of Representatives, holding a
significant appropriation from Parliament each year for printing copies of
primary and subordinate legislation and then making it available through
designated bookshops across the country. Given the size of some of these
individual statutes (at Royal Assent, the Income Tax Act 2007 was 2855
pages long) change was long overdue.
But there was a slight ‘local difficulty’ in this move from paper to web-based
publishing and promulgation. The government no longer owned the
intellectual property in the marked-up database of old and existing
legislation having (inadvertently) sold it with the deregulation of
government printing and the associated sale of the Government Printing
Office (GPO).
9

8

David Makay, Colenson, William (30 October 2012) Dictionary of New Zealand
Biography;
TEARA
Encyclopaedia
of
New
Zealand,
<http://www.teara.govt.nz/en/biographies/1c23/colenso-william>.

9

To misquote former UK Prime Minister Harold Macmillan ‘… and so I thought the
best thing to do was to settle up these little local difficulties, and then turn to the
wider vision of the Commonwealth.’ See Harold Macmillan, ‘Mr Macmillan sets out’,
The Times (UK) 8 January 1958, 8

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In 1987 the GPO had revenues of just under $100 million with pre-tax profits
of $14.5 million and, as one commentator noted: ‘Its parliamentary
publications kept citizens informed in great and sometimes crushing detail
of their government's activities; its legislative publications guided citizens
(or at least their lawyers) on their rights and duties.’ The consequences of
the sale were noted at the time by some commentators, for example an article
by Warren Berryman in the leading business newspaper in New Zealand
was titled ‘Sovereignty for sale: the law to be privatised in Printing Office
move.’
10

11

12

Consequently, the move to web-based publishing and access to legislation
was both lengthy and costly for New Zealand. In total it has taken 10 years
and $30 million (against early predictions/estimates given in the early 2000s
of 2 years and $5 million) to achieve the digital legislative drafting and webpublishing systems and environments that are currently provided in New
Zealand. Since 2008 the government (through the medium of PCO’s
legislation website) has been making available in-force legislation (primary
and secondary) and Bills in both internet and hard copy formats. And in
2014 the PCO finally completed the long process of checking and correcting
the database that had been purchased from the commercial publishers and
was able to declare the PDF output an official source of legislation.
13

14

This is critical for a properly functioning democracy; to have a reliable,
authoritative and official source of the laws which apply to its citizens and
others. To have that body of legislation available free to all is also a
significant improvement over the previous charged-for paper, based product

10

Report of the Government Administration Committee on the Inquiry into the Sale of the
Government Printing Office (1992) House of Representatives, New Zealand.

11

James Bruce Ringer, Book and Print in New Zealand: A Guide to Print Culture in Aotearoa
(Victoria University Press, 1997).

12

Warren Berryman, ‘Sovereignty for sale: the law to be privatised in Printing Office
Move’, National Business Review (New Zealand) 8 December 1988.

13

New
Zealand
Legislation
(2016)
<http://www.legislation.govt.nz>.

14

Christopher Finlayson, ‘Official legislation online today’ (Press Release, 6 January
2014) <https://www.beehive.govt.nz/release/official-legislation-online-today>. See
also ‘Legislation (Official Electronic Versions) Notice 2014’ (2014) 1 New Zealand
Gazette 32. From 5 January 2016 HTML content of the website was declared also to be
an official source of legislation. See ‘Legislation (Official Electronic Versions) Notice
2015’ (2015) 141 New Zealand Gazette 7126.

Parliamentary

Counsel

Office

Collaboration between the state and the LII community in improving access to legislation

77

which inevitably was always out-of-date given the ability to produce
compiled copies of legislation sufficiently quickly.
15

The declaration of ‘official’ status is also essential for the operation of
‘judicial notice’ in court proceedings under the law of evidence in New
Zealand.
16

And, it discharges Hobbes’ requirement for there to be a ‘sufficient and clear
promulgation’ of the legislation passed by Parliament or made by the
Executive.
Finally, in relation to the digital database output and its official status it
should be noted that printed copies of assented-to legislation are required by
the Standing Orders of the House of Representatives to be kept by the Clerk
of the House and the Registrar of the High Court at Wellington. So, there
will always be authoritative hard copies to refer to and reprint if necessary
and the PCO itself continues to maintain a stock of hard copy printed
legislation for reasons of security and longevity. However, the reality in
terms of public access to legislation (including access by legal professionals
and librarians) is that the official website output is fast replacing the official
printed paper version as Figures 1 and 2 below indicate.

15

For more discussion see ‘Law News gets the heads up on official electronic
legislation’, ADSLI LAWNEWS (13 December 2013), <http://www.adls.org.nz/forthe-profession/news-and-opinion/2013/12/13/law-news-gets-the-heads-up-onofficial-electronic-legislation/>.

16

Legislation Act 2012 (NZ) s 16.

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Figure 14 Source: Parliamentary Counsel Office, Wellington, New Zealand

Figure 15 Source: Parliamentary Counsel Office, Wellington, New Zealand

4

Collaboration between Free Access to Law Movement
members in New Zealand and the wider Pacific region

The PCO (as the State provider of free access to legislation) began its
collaboration with the New Zealand Legal Information Institute (NZLII) for
primarily practical reasons. First, NZLII already had a substantial body of
both legislation and case law freely accessible via its website and the

Collaboration between the state and the LII community in improving access to legislation

79

government website was designed in such a way to allow anyone to
download content by ATOM feed so collaboration between two free-access
providers made sense in a small jurisdiction where there are already three or
four main commercial retailers of legislation and add-on services. Second,
and rather more pragmatically, applicable government web standards
required the PCO to publish documents in both PDF and HTML formats
which the official legislation website conforms to. However, the PCO
holding of older databases was only available in PDF or indeed hard copy
formats which required OCR scanning prior to PDF production. The costs
and time involved in converting these historic (but valuable) research
collections into HTML format and then incorporating them into the NZL
website databases did not represent value for money for the PCO given its
appropriation and other priority functions.
However, the PCO was tasked with, and wanted to, improve access to
legislation for New Zealanders, so again, collaboration with NZLII made
sense in terms of publishing the PDF historic legislation content.
Consequently the PCO, working with its free access partner (NZLII), is now
making significant historical legislative documents freely available online.
The latest results of this collaboration, Bills from 1949 to 2008, are now on the
NZLII website in PDF format. The volumes will be added to over time and
will extend back to 1854 when complete. The collection includes Bills that
became Acts as well as those that failed to make it to the statute book.
17

The Historical Bills Collection sits alongside the New Zealand Acts 1841–
2007 As-Enacted Collection of historical Acts and the recently completed
Statutory Regulations 1936–2007 as-made collection.
18

As an example of cost-effective collaboration, the additions to the existing
NZLII databases of the Regulations as-made and the Acts as-enacted
collections together with the current project to produce a comprehensive
collection of historic Bills will have cost the PCO less than $200,000 in

17

New Zealand Parliamentary Counsel Office, New Zealand Historical Bills (11 March
2016)
New
Zealand
Legal
Information
Institute
<http://ww.nzlii.org/nz/legis/hist_bill/>. The collection has been put together
from scans of bound volumes provided by the PCO and the Office of the Clerk to the
House of Representatives, and the documents hosted by NZLII. While most volumes
were taken apart to enable scanning, some of the earliest (not yet available online)
were too rare to treat in this way. Instead they were scanned by the Australasian
Legal Information Institute (AustLII in Sydney) using a non-destructive scanner that
produces high-quality images from books open to only 30°.

18

New Zealand Parliamentary Counsel Office, New Zealand Regulations As Made (3 May
2016)
New
Zealand
Legal
Information
Institute
<http://www.nzlii.org/nz/legis/num_reg/>.

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Journal of Law, Information and Science

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scanning and processing costs. This is a fraction of the charges it had
previously paid to commercial providers of the interim website offerings
before the official legislation website went live.
In terms of the wider Pacific region the PCO has, since 2009, been providing
a legislative drafting, training and mentoring function for Pacific Island
nations with financial support from the New Zealand ministry of Foreign
Affairs and Trade (starting with those of the NZ Realm States, Cook Islands,
Niue and Tokelau but since expanded to include work for Fiji’s reestablishment of Parliamentary democracy).
19

Access to legislation in the Pacific island states is often difficult, particularly
in hard copy form which makes the regional LII – (The Pacific Islands Legal
Information Institute (PacLII) a facility of the University of the South Pacific
School of Law) all the more important for the New Zealand legislative
counsel when drafting amending legislation on instructions from
jurisdictions in the Pacific.
20

In Australasia state legislation publishing institutions in the Australian
jurisdictions have different and varied relationships with local free-access
providers – but in New Zealand the PCO has committed to developing a
collaborative relationship with NZLII (its free-access partner) and indeed
encouraging other free-access providers, combiners and developers of the
official output.

19

For more information see the latest evaluation report available from MFAT at: New
Zealand Foreign Affairs and Trade, Evaluation Reports 2015 (August 2015) New
Zealand
Foreign
Affairs
and
Trade/Manatu
Aorere
<https://www.mfat.govt.nz/en/aid-and-development/our-approach-toaid/evaluation-and-research/evaluation-reports-2015/>.

20

Pacific Islands Legal Information Institute (July 2016) PacLII <http://www.paclii.org/>.