New Zealand Council of Law Reporting Amendment Bill — Third Reading 
New Zealand Council of Law Reporting Amendment Bill — Third Reading 
[Volume:630;Page:2546] 
New Zealand Council of Law Reporting Amendment Bill 
Third Reading 
Hon RICK BARKER (Minister for Courts) 
: 
 I move  
That the New Zealand Council of Law Reporting Amendment Bill be now read a third time 
. This is straightforward legislation that will add the Supreme Court to the list of higher courts for which the New Zealand Council of Law Reporting will be responsible for preparing formal law reports. This is not as some Opposition spokespeople have said a major overhaul of our judicial system; nor was it ever intended to be. 
The Supreme Court is the highest appellate court and through all the appellate pathways has the ability to review the decisions of our courts across the full range of New Zealand law. Given the central importance of the Supreme Court the law reports will need to be of the highest quality. To achieve this standard the Council of Law Reporting has been consulting the judges in the Supreme Court and also the New Zealand Law Society to review the current practices and suggest possible improvements. A protocol has been agreed to ensure good practice. We are fortunate to have a number of specialist law reports covering a wide range of specific case law such as tax law family law and resource management law. This bill will also clarify the basis on which consent may be given by the New Zealand Law Society to enable specialist reporters to continue this valuable series. 
During the debate an issue was raised about reports on the Maori Land Court and the Maori Appellate Court. It is accepted by the Government that we have an inadequate series of reports in this area. I gave an assurance to the Committee of the whole House at that time that the Government was going to move on this. I want to repeat that assurance that within the next 6 months or so we will have a better structure for the Maori Appellate Court and approximately 12 months after that we will have a better series of reports for the Maori Land Court. 
In conclusion the New Zealand Council of Law Reporting Amendment Bill will ensure the continued value and validity of New Zealand law reports by extending the responsibilities of the Council of Law Reporting to include reports on significant decisions of the Supreme Court. This bill is as simple and as straightforward as that and I commend it to the House. 
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. 
Dr WAYNE MAPP (National—North Shore) 
: 
 I must confess that I am tempted to yield my 10 minutes to the previous speaker. I think it is worth noting on the record that Dr Richard Worth member of Parliament was also the winner of the Sweet and Maxwell prize at Auckland University for being the most prominent graduate of his year and that he was a member of the New Zealand Council of Law Reporting for many many years. 
I think we saw that depth of expertise being reflected tonight as he explored the principles of firstly how to write a law report and secondly—for the benefit of members on the other side—how to read and understand law reports. After all unless law reports are accurate and unless they sum up in the ratio of the case the little headnotes that the previous speaker was talking about it would be impossible I suggest to understand the development and structure of the law. 
I know that lawyers are sometimes criticised for going on about the common law and its development over many many centuries. But the fact that we can stand here on the summit of centuries and centuries of legal decisions is of enormous benefit to our country. The principles that we are all so accustomed to in this country: the rule of law the protection from the powers of the State and the fact that people can be detained by the police only after they have been arrested as opposed to simply being hauled off the street and summarily dragged off to jail which would happen for instance under Saddam Hussein’s regime—something that no doubt the Greens would applaud—are due to the development of the law by our judges. 
 Let us imagine that we did not have decent law reports. How would we know what had been decided not just last week last year or a decade ago but literally centuries ago? It is absolutely crucial to our system of law that we have good law reports and that they are accessible. Indeed people like the Clerk of the House David McGee who has written a superb book on the procedures of the House have provided that enormous depth of precedents that we all value and rely on when we read the law and understand its practical application. How often have I heard a member of the Green Party for instance talk about the importance of being protected against the State talk about civil rights or talk about the importance of the individual? I know that I have heard members speak on those topics many many times. None of the precedents would exist without the work of judges and those precedents would not be available to us unless they had been written—unless in short they had been reported. 
I also want to put one other point on record because I am not sure that Mr Chris Finlayson will have the opportunity to speak tonight although he has spoken previously. He was shabbily treated by the current Attorney-General I might add and members on the other side of the House ought to reflect in shame at the political interference that occurred which meant that proper recognition of his skills of advocacy was not able to be made last year. So I want to put that on record because it was a shabby little thing done by the Attorney-General—a lack of understanding really of the importance of advocacy. It would do well for members on the other side to understand that it is not uncommon in fact in other jurisdictions for people to be elevated to the level of Senior Counsel—as the title is now—while in Parliament. 
The point I am really making here is that amongst Mr Finlayson’s many achievements he was also a member of the New Zealand Council of Law Reporting for many many years and that needs to be put on record. We actually have in this House today two members of Parliament who do not just have a general knowledge of the law who did not just practice the law who are not just learned and esteemed in their profession but who have had a direct and material connection to the development of the  
Law Reports 
. 
I turn now specifically to the bill which primarily allows the reporting of Supreme Court reports. It is an interesting little oversight is it not? Because Government members rushed through the decision on the Supreme Court and because they did not bother to ask the public of New Zealand what they thought this bill is actually a correction of an oversight— 
Christopher Finlayson 
: Another one. 
Dr WAYNE MAPP 
:—another oversight. A Government worth its salt would have included in the initiating legislation the ability to report the decisions of the Supreme Court but it was not even thought about. Why? It was a matter of: laziness I guess; incompetence I imagine; haste I dare say; lack of consultation— 
Kate Wilkinson 
: Ignorance. 
Dr WAYNE MAPP 
:—and ignorance as my colleague Kate Wilkinson has suggested. All those factors had a role to play. So here we have had yet another repair job where the Government has come across to the Opposition and said: “Help us out by voting for this legislation.” Opposition members are having to do that on a regular basis—helping out the Government to repair its botched jobs for the benefit of New Zealand. 
Hon Rick Barker 
: He goes on for a long long time. 
Dr WAYNE MAPP 
: I tell the Minister for Courts who needs to reflect I guess where he will fit in the sequence of seniority for justice Ministers that this bill is not a fine reflection on him or on his Government. The Supreme Court has now been in action for 2 years—the court did not even get a permanent home until just recently and that will take years and years to actually become reality—so finally we will get the decisions of the Supreme Court published. 
I want to conclude on a particular point—again an issue that Mr Finlayson raised and I acknowledge that the Minister has taken it on board—that is the reporting of the decisions of the Maori Appellate Court and the Maori Land Court. They have been very badly reported in the past. There is no easy way currently to access those reports. One can go into any lawyer’s office or for that matter into any law school or into any Government department and one will not find decisions of the Maori Appellate Court or the Maori Land Court on the shelves but one will find reports from every other court easily accessible. 
The Government must ask itself why the United Nations sees fit to say “Well frankly in some areas you haven’t done the job properly.” I guess that this is a little example is it not? And to be fair I do not just blame the current Government. As a nation we have been neglectful of giving proper reporting of and indeed respect to the decisions of those two courts. 
National will be supporting this bill and members have heard the very learned dissertation from the winner of the Sweet and Maxwell prize—the top law student in his year at Auckland University—on the challenge facing law reporting. How does one work out what is the stare decisis of the decision and the reasons for deciding that? What is the obiter dicta? What kind of guide will be given not just to us in this Parliament not just to contemporary generations of law students but to students who will be sitting in their high-tech law schools a century from now? They will be reading the decisions of 2005 and saying “Actually that court made a fine decision.” or “How is it that the reporter made an error there?”. So we are doing an important part of repairing the legal tool kit but again National has had to come and rescue the failures of the Labour Government by voting for this legislation—albeit 2 years after it should have been passed. 
MARK BLUMSKY (National) 
: 
 Yet again I follow some very learned legal colleagues from the National Party. I suggest to members however that my background in footwear retailing and my current ownership of 10 years of my lingerie business has also given me a background similar to that of Dr Worth. In fact I can share with members many Italian words also—words such as Amalfi Botticelli and Elle MacPherson— 
Dr Wayne Mapp 
: That is not Italian. 
MARK BLUMSKY 
: I know it is not Italian but I know many Italian men who wish she was Italian. In my background I probably have more knowledge and skills in legal matters than those that we saw from the Minister for Courts in his gripping speech when he introduced this bill for its third reading tonight. In fact if I keep talking on these legal bills I am sure that some members in this House will actually believe that the Blumsky household has two lawyers. 
I see my new pen pal David Benson-Pope is over there in the House and I acknowledge him. Can I thank him for his lovely letter the other day so personal and so very signed. Can I suggest to him that a Minister on top of his game would do better things than write me love letters as he did. But I do look forward to his Christmas card which I am sure I will get because I am on his “most favourite persons” database. 
This is a very serious but simple bill and National supports it. Is it important that the  
New Zealand Law Reports 
 are authoritative and without peer? To quote a press release from 30 September 2001: “The argument of counsel and Privy Council cases is to be reported in the  
New Zealand Law Reports 
(NZLR) 
 from now on. This will give a major boost to their authority and standing”. That was a press release from the managing director of LexisNexis reinforcing the importance of the authoritative volumes the New Zealand Law Society put out. 
Should the Law Society produce those reports? Of course it should. To quote from another fine journal the  
New Zealand Law Journal 
 of February 2005: “The difficulty for publishers and clients alike is that the New Zealand legal profession is small but diverse … What role does the New Zealand Law Society play in this? As it states in s 4 of the Law Practitioners Act 1982 one function of the NZLS is (e) To promote opportunities for the acquisition and diffusion of legal knowledge … A guiding hand at least; an informed voice for the legal profession at best the New Zealand Law Society should ensure that issues … are identified and debated.” So without doubt the New Zealand Law Society is the exact perfect authority to produce those fine volumes. 
How important are those reports; will they get referred to; and are they to be used? Lawyers in practice lawyers in commerce lawyers in intellectual property—I put that in for my wife—judges law librarians New Zealand agencies overseas local bodies the Ministry of Justice main Government agencies—those people and organisations need to see how law develops and to find out just what the distinguishing facts behind the decisions were. They are very important documents indeed. 
It was with surprise that I saw that the Greens in the first reading debate of March 2005 totally agreed with our position on this bill. I quote Nandor Tanczos’ speech from  
Hansard 
: “… I have to say that in my view it is important that in relation to judicial decisions and the importance of implications for the wider society there be a clearly authorised publication that can accurately report the courts’ decisions.” We agree with him on that point but we do not agree with the next section of his speech where he spoke about the fact that he liked the provision on the Supreme Court in the bill. We do not. It is a pity that when the New Zealand Council of Law Reporting Act came into being in 1938 there was no mention of the Supreme Court. Legislation introduced in 2002 ended 160 years of New Zealanders’ rights to appeal to the Privy Council which was a major constitutional change. The Government made that change and many are uneasy about that and about the arrogance this Government showed when it made that decision. 
We are supportive of the bill. We believe that it is important that the Supreme Court is now added to the  
New Zealand Law Reports 
. We also totally endorse the provision in clause 3 that refers to the need for there to be other publications that can print some of the material if the New Zealand law report is delayed overdue or too costly. That will keep some pressure on the need for them to deliver and deliver true. We support the bill and I look forward to seeing it go through. 
CHRISTOPHER FINLAYSON (National) 
: 
 I had not intended to take a call but I thought a number of points could usefully be made about the New Zealand Council of Law Reporting Amendment Bill which as my colleagues have said the National Party supports. It is very short technical legislation that essentially amends section 12 of the New Zealand Council of Law Reporting Act to enable decisions of the Supreme Court to be reported in the  
New Zealand Law Reports 
—which as Dr Worth said are the official series of law reports. 
As my friend the MP for North Shore said the bill is a bit of a late development. In fact this should have been done a couple of years ago. It is another example of what I call sloppy or inadequate drafting by this Government’s team. The point is—and this needs to emphasised—that the  
New Zealand Law Reports 
 have already been publishing decisions of the Supreme Court. For example those in the Zaoui case took up almost an entire part of the  
New Zealand Law Reports 
. So it is a case—to get into the Latin mood—of ex post facto. It is being done now it should have been done earlier and it was not done earlier because this Government has difficulties with attention to detail and that is disappointing. Essentially that is what the bill amends. 
In the Committee stage I made a brief comment about new section 12(6) inserted by clause 3 which provides that the Chief Justice may on occasion authorise an individual a firm or a company to publish reports of the Supreme Court. I ventured to suggest that I thought that was a bad idea. I do not know where that provision came from; its background was certainly not explained in the Committee stage. I would have thought that the Council of Law Reporting should have the sole responsibility for publishing reports of Supreme Court cases unless the job is not being done in a speedy and effective manner in which case the council of the New Zealand Law Society can authorise another company or firm to publish law reports. 
Occasionally in the history of the Council of Law Reporting the  
New Zealand Law Reports 
 have got behind and the council of the New Zealand Law Society has been required to authorise competitors to publish reports. For example I know that when the  
New Zealand Law Reports 
 were getting a bit behind the action the council of the New Zealand Law Society authorised Brooker’s a distinguished legal publishing firm in New Zealand to start publishing the  
Procedure Reports of New Zealand 
. This has also happened in the past with the  
Family Reports of New Zealand 
 and the  
Criminal Reports of New Zealand 
. 
To most people law reporting is a rather boring occupation and does not seem to be of any great moment. But Dr Worth made a number of important points that are worth reiterating. I begin by going back to what I said in my speech during the third reading of the Judicature Amendment Bill (No 3). I talked with reference to what Sir Geoffrey Palmer said last week about the importance of accessibility to statute law in New Zealand. It is fair to say that this country’s Parliament is one of the fastest and most prodigious lawmakers in the West and complaints are often made that New Zealand’s statute law is not as accessible as it should be. 
The other great source of law in New Zealand is as Dr Worth said the common law. For many years the common law has been reported in the  
New Zealand Law Reports 
 and before that in the  
Gazette Law Reports 
. In the early years of this country private individuals and firms reported New Zealand law reports. It is incredibly important that in terms of the development of the common law judges lawyers law students and public officials have access to up-to-date reports of New Zealand cases because the common law changes through the decisions made by judges in the various courts. A major problem has occurred over the years when from time to time reports of the cases that have been decided by judges have not been readily available. That is why we have a Council of Law Reporting that is why we have the  
New Zealand Law Reports 
 and that is why we have other types of law reports. So it is incredibly important that the decisions of the courts are properly recorded and are readily available in a high-quality series of law reports for lawyers and judges. 
When I was making that statement I heard the member for Dunedin South groan and I was not quite sure what he said. If he would care to repeat himself I would be quite happy to answer him. He has fallen silent again. 
Hon David Benson-Pope 
: Stand up straight! 
CHRISTOPHER FINLAYSON 
: He is getting back to his schoolboy tactics of telling me to stand up straight. I will do so because knowing that member’s past I would be frightened of what might happen if I did not subject myself to his bullying. 
That is why we have the  
New Zealand Law Reports 
. 
Hon Member 
: No backbone! 
 The member says I have no backbone. This is technical legislation and I find it very disappointing when I am trying to help educate the member for Dunedin South on these very important points— 
Chris Auchinvole 
: An impossible task. 
CHRISTOPHER FINLAYSON 
:—it probably is an impossible job as my friend Mr Auchinvole says—that he continually makes cruel rude and vicious comments. One can understand why he was so loved as a teacher at Bayfield High School. 
Putting that to one side I conclude by emphasising the important role that the Council of Law Reporting plays. It has a major task to produce—not just in physical form but also in electronic form—up-to-date high-quality reports and I must say that it has been doing a very good job over the years. It will continue to do a good job with reports of the Supreme Court. One of the innovations that has come in under Bernard Robertson the editor of the  
New Zealand Law Reports 
 is that in the Supreme Court Mr Robertson or a reporter for the  
New Zealand Law Reports 
 will often be present to listen to and record the argument. That too has its place in the development of the law. When one goes to the Privy Council one sees that a reporter is there to take down the argument. It also now happens in the Supreme Court and that is a very good thing. 
So as my colleagues on this side have said National supports the New Zealand Council of Law Reporting Amendment Bill. The bill makes a minor change to law reporting by permitting Supreme Court proceedings to be reported. This should have been done a couple of years ago as should one of the changes in the Judicature Amendment Bill (No 3) but the important thing is that it is done now so the  
New Zealand Law Reports 
 can continue the fine work it has been doing for many years. 
Bill read a third time.