Worth Richard: New Zealand Council of Law Reporting Amendment Bill — Third Reading 
Worth Richard: New Zealand Council of Law Reporting Amendment Bill — Third Reading 
[Volume:630;Page:2546] 
Dr RICHARD WORTH (National) 
: 
 The comments made by the last speaker the Hon Rick Barker remind me of that great Latin tag line noscitur a sociis—a word is known by the company it keeps. Certainly when future generations come to reflect on the contribution that the Hon Rick Barker has made to this House they will remember this bill as probably the high point of his contribution as a Minister. 
In one view the New Zealand Council of Law Reporting Amendment Bill is short and simple but it is wholly reflective of the intellect that a powerful Minister in the current administration has brought to this particular task. This is not difficult legislation as the Minister has been at pains to say. Indeed it is simple. But it is quite old legislation and although he did not say so it has its origins in 1938 when the principal Act was passed. It is good to be remembered for something positive that one has done in the course of a parliamentary career. That is why I started by saying it is particularly significant that this bill should be identified as the high point of the Hon Rick Barker’s period in Parliament. Sadly all periods come to a close. Some are marked by stellar greatness; some perhaps are not. 
I thought I would start with a reference to noscitur a sociis then come to a more familiar theme—[ 
Interruption 
]—which will be picked up instantly by Mr Parker in the valuable contribution he is about to make in the course of this third reading speech—which is the doctrine of stare decisis. Why are we strongly supportive of the New Zealand Council of Law Reporting Amendment Bill? Because we are committed to the doctrine of stare decisis. There are no blank expressions on the faces of those members seated opposite and I know why that is. In common law countries court opinions are legally binding under the rule of stare decisis. In fact it is what we here are all about. [ 
Interruption 
] Those members who are interrupting might like to pause for a moment because I wish to develop other Latin concepts that will clearly be familiar to Mr Barker and his colleagues. 
The concept is a simple one. Under that rule court opinions of superior courts are legally binding—it is the doctrine of precedent. The regular publication of opinions is important so that everyone—the media lawyers judges and laymen—can find out what the law is as declared by judges. 
It is very much a central feature of law reporting that the law reports as one looks at a decision in a particular case are in two very structured parts. The first is the headnote and the second contains in full detail the opinion of the person who delivered the judgment. That is why I want now to consider the concept of ratio decidendi which I think is fundamental to sound law reporting. Ratio decidendi is a simple concept to articulate but quite a difficult one to apply. Ratio decidendi translates into very rough English as the “reason for deciding”. It is the task of the law reporter to draw out from the material contained in the judgment what in fact the ratio decidendi is. What are the guiding principles in the case? How is the case to be remembered reflectively for its precedent value? 
I believe that the hallmark of a good report is the ability to discern the ratio decidendi. But it goes much much further than that and moves into another important area of law obiter dicta. I would like in the short period of time remaining to speak about the important concept of obiter dicta. This is the stuff from which lawyers weave their fairy tales. This is the stuff that keeps them awake at night. It is the pillow talk that is the commonplace of judicial company. I would like for a moment to dwell on obiter dicta. So often in reporting these days we see significant confusion between ratio decidendi which I have briefly explained and obiter dicta which I now want to talk about for just a moment. 
I am not completely sure how obiter dicta is best translated these days but the concept is simple enough. We have the guiding principles of law captured in the phrase ratio decidendi but these other comments—the comments on the side and the outside comments—make up the concept of obiter dicta. That is the test the Minister has grappled with so determinedly in his decision to bless the New Zealand Council of Law Reporting with this important task of reporting Supreme Court decisions. It is for the reporters to sift carefully through the material to determine what is ratio decidendi and what is obiter dicta. So we will see in a well-constructed headnote that differentiation so importantly drawn between those hugely significant concepts. 
Mark Blumsky gave a speech in Parliament the other day that I think is worthy of recollection and recall. He made the point—guided by his famous wife who is a prominent lawyer in the city of Wellington—that one of the problems with law reporting is that the law reports lag significantly behind the publication of the actual decisions of the judges. There is no doubt that this Government with its laudable outcome of accessibility to justice on which it fails so lamentably and so often should clearly pursue a plan that provides accessibility to law reports. Concepts of accessibility are incredibly important but in this context we are talking about the accessibility of judges’ opinions. We all know that in looking at issues of access to law access to statute law is important and well provided for but access to case law is significantly less so. 
I pick up the comments of Mr Blumsky’s wife that it is important we have a timeliness of law reporting. That is why it is important to note the deficiencies in the specialist reports that the Hon Rick Barker has spoken about. They may have an immediacy but they do not necessarily have an accuracy on those two critical benchmarks of identified ratio decidendi and obiter dicta. A much sharper focus should be made in those important areas. 
I could have ventured at some length upon the history of law reporting in New Zealand. I have refrained from doing that and instead have decided to give just a very short summary of where we have gone in the context of law reporting in New Zealand. Some would say this is not a bowel-gripping topic. I am led I suppose to that conclusion in a provisional way myself. But there is no doubt that the history of law reporting in New Zealand has been a solid one and it has been a record marked by scholarship and intellect. 
I see that the previous Attorney-General David Parker who had specific responsibilities for law reporting is in the House and I venture to hope he might comment on this legislation. I certainly hope he will do so because in the course of his career as a lawyer he contributed substantially to decisions in the courts that had a significant commercial consequence. 
With time running against me I will not retrace the complete history of law reporting in New Zealand. I simply say that the current  
New Zealand Law Reports 
 as members may know started in 1881 but complete sets are deemed to have started in 1861 with a number of prior series. In the period from 1861 until about 1872—subject to correction from Mr Parker—we had the Macassey Reports a publication called the  
New Zealand Jurist Reports (New Series) 
 and later reports.