The use of legislative material and, more importantly whether a court will accept it without question, is governed by statute. In certain circumstances a copy of legislation will be evidence of what was enacted by Parliament without further proof, and a court must take judicial notice of it.
Prior to the enactment of the Evidence Act 2006, the matter was covered by the Evidence Act 1908 and the Acts and Regulations Publication Act 1989. Although the provisions of the two pieces of legislation are virtually identical, the 1989 legislation did not repeal the corresponding provisions of the Evidence Act 1908. The Evidence Act 2006 remedied that problem. A clear position was contained in the Acts and Regulations Publication Act 1989 while broader and more embracing language is used in the Evidence Act 2006.
Section 28 of the Evidence Act 1908 provided that “Judicial notice shall be taken by all Courts and persons acting judicially of all Acts of Parliament.” The authoritative nature of a printed copy of legislation was governed by s 29 of the Evidence Act 1908 which provided:
(1) Every copy of any Act of Parliament or of any Imperial enactment or any Imperial subordinate legislation (as defined in section 2 of the Imperial Laws Application Act 1988), being a copy purporting to be printed or published (whether before or after the commencement of this section) under the authority of the New Zealand Government shall, unless the contrary is shown, be deemed—
(a) To be a correct copy of that Act of Parliament, enactment, or legislation; and
(b) To have been so printed or published.
The authoritative nature of reprinted statutes, authorised by the government, was covered by s 29A of the 1908 Act. Sections 16A–16E of the Acts and Regulations Publication Act 1989 have the same effect.
Section 141 of the Evidence Act 2006 addresses New Zealand and foreign official documents and states as follows:
(1) Subsection (2) applies to a document that purports—
(a) to have been printed in the Gazette; or
(b) to have been printed or published by authority of the New Zealand Government; or
(c) to have been printed or published by the Government Printer; or
(d) to have been printed or published by order of or under the authority of the House of Representatives.
(2) If this subsection applies, the document is presumed, unless the Judge decides otherwise, to be what it purports to be and to have been so printed and published and to have been published on the date on which it purports to have been published.
The authoritative nature of legislation, and the recognition of a copy of it presented to a court depends on whether the copy presented has been printed or published by the authority of the government, the Government Printer or by the order of or under the authority of the House of Representatives. Unless the web-based versions of the statutes (including those of commercial publishers) are “published” by the authority of the government, or fulfil the criteria set out in s 141 of the Evidence Act 2006, they should not be offered as material of which the court may take judicial notice. Note:
1. It is not for the court to ask whether or not the copy proffered is authoritative.
2. It is for counsel to satisfy himself or herself that what is being proffered is authoritative.
That is all about to change.
The starting point is the nature of an official version of legislation. Once again, this is defined by statute. Section 18 of the Legislation Act 2012 states: “An official version of legislation as originally enacted or made is taken to correctly set out the text of the legislation”.
From 6 January 2014 onwards, the Chief Parliamentary Counsel will issue official electronic legislation via the New Zealand Legislation website (www.legislation.govt.nz) and may do so, as well as isue printed versions pursuant to section 17 of the Legislation Act..
Official electronic versions of legislation will be available in PDF format displaying the New Zealand coat of arms (and looking for all intents and purposes exactly like the hard copy versions readers will be familiar with). Printouts of official PDFs will be free of charge and also “official”. Users will be able to view, print and rely on the following as official:
- every act and legislative instrument (LI) enacted or made since 2008;
- every reprint (subsequent version) of those acts and LIs;
- the latest version of all principal (i.e. not amendment) acts and LIs enacted or made between 1931 and 2007, if still in force (and some earlier reprints); and
- the latest versions of some pre-1931 Acts, e.g. the Judicature Act 1908 and Sale of Goods Act 1908(and some earlier reprints).
Prior to the digitization of the Statutes and their now official status, a printed version by an authorised publisher provided the basis for evidence of what Parliament had enacted. This relatively straightforward formula has, for many years, put the matter beyond doubt. The provisions of the various Evidence Acts and the Acts and Regulations Publication Act have recognised the preservative, disseminative and standardised qualities of print. Printed law, in this respect, has become authoritative law. But it was not always the case.
In the medieval period the original text of a statute was retained as an official record but does not appear to have been the subject of widespread copying or dissemination. During much of the 13th century, for example, there was no definitive version that one could consult to determine the accuracy of one’s private copy. The official roll containing statutes was kept in Chancery but it was incomplete.
Prior to printing the copying of statutes was laborious and expensive – each copy having to be made individually – no two ever going to be exactly the same. Therefore, it was difficult to establish a canon of authentic statutes. Judges themselves did not have a current set of statues available for reference.
Because of difficulties accessing an accurate version of the text, statutes were often misquoted and in any event seem to have been consulted only sporadically. Furthermore there was little consistency in citation practices, the statute simply being referred to as such or by its initial or important words – for example Quo Warranto, The approach to the interpretation of statutes tended to be fluid and dependent upon factors that were often extraneous to the text.
For example in the 14th century Judges were often members of the King’s Council and they would have been present when a law was adopted. The written record of legislation might have mattered less than a Judge’s own recollection of what had been decided. The text would be a reminder of what had taken place. This is reflected by the statement made by a Judge to a lawyer in Aumeyes Case in 1305 “do not gloss the statute, for we understand it better than you; we made it.” when the lawyer was arguing why a statute had been enacted.
Statute law was seen as the will of the lawmaker rather than the text itself being authoritative. The textualisation of law in England was somewhat complex with linguistic issues arising from statutes that were debated in English but recorded in French.
Legislators probably did not focus on the exact text of a proposed act, since many of them may not have understood the French in which it was written. However into the sixteenth century statutes were becoming viewed as the clear words of the law maker. Professor John Baker in his Introduction to Legal History states that in the Tudor period there was a “new reverence for the written text … legislative drafting was now carried on with such skill …. that the Judges were manifestly being discouraged from the creative exegesis that they had bestowed on medieval statutes”.
Introduction of Print and the Royal Printer.
I suggest that the advent of printing of public statutes, the appointment of a specialist Royal Printer to print them was a significant element of this “new reverence”.
Print technology was introduced to England by Caxton in 1475 and the first law books were printed in 1481. It was Henry VII who saw the possibilities in print and early in his reign appointed a Stationer to the King who later became the King’s or Royal Printer.
On 5 December 1485, Peter Actors was appointed Stationer to King Henry VII. His patent was a valuable one and is the first example of a system of prerogative licensing privileges that were subsequently to be granted to printers. The grant provided Actors with
“license to import, so often as he likes, from parts beyond the sea, books printed and not printed anywhere in the kingdom and to dispose of the same by sale or otherwise, without paying customs etc. thereon and without rendering any accompt thereof.”
Henry VII utilized print for propaganda purposes and was the first English monarch to do so And he also recognized the importance of print for the purposes of promulgating the law. In preparation for a military campaign in France in 1492, every officer was issued with a printed copy of a booklet entitled The Ordenaunces of Warre. It was one of the first publications to recognize the wide dissemination that the new technology allowed, the advantages that it provided in the promulgation of law, and served as a model for subsequent government publications. It also made very clear that ignorance of the law could not be claimed when material was available in print.
The way in which the purpose of putting the Ordinances in print was worded reflected a combination of the traditional means of announcing law, which was by verbal proclamation, along with greater dissemination facilitated by the technology of print.
The importance of printing and its status continued to be recognised by the Crown and the office of King’s Printer, which was not an honorary one, became a tool of Government. The King’s Printer was granted the exclusive right to print all official publications and by 1512 Wolsey had ensured that all “Government legislation whether it concerned trade, apparel or religion, was made widely available and in an accessible and authoritative form.”
The impact of this was that the State ensured the integrity of content by identifying one particular printer to produce the content. This, therefore, restricted others in the industry from printing such material thus conflating an aspect of content with a manipulation of the industry.
The importance of an informed public improved the potential for compliance with and enforcement of the law. No one could claim ignorance of the law if the law was well publicised, available and in a form that had the imprimatur of the State. By granting a monopoly for publication of such material the State was ensuring that there was one authoritative version. This system displays a remarkable insight into the implications of the new technology. On the one hand the disseminative properties of printed material were recognised, with large numbers of identical publications potentially able to be readily spread throughout the Kingdom. On the other hand it was recognised that the new technology did not produce identical copies regardless whose press they came from. There was variation between printers not only in printing style and format but in the quality of product. By restricting publication to one printer the State could ensure that there was consistency and reliability of content.
One of the duties of the Royal Printer was to print legislative material. The qualities of print – dissemination, identical copies and a standard identical text – aided in the promulgation and communication of statutory information. Pre-print promulgation of statutes was done by sending manuscript copies of the statute of the latest Parliament or Session to the Sheriff of each county accompanied by a writ ordering him to proclaim it publicly in all the Cities and towns, at quarter sessions, markets and fairs or other occasions where people gathered together.
The public promulgation of statutes was assisted by the publication of printed broadsides. This represented a shift from the aural-oral promulgation that was the practice in the manuscript period. Broadsides allowed the material to be presented in visible and more lasting form. The broadsides could be affixed to posts and billboards. The earliest clear instance appears in 1529 and seems to have continued intermittently through the reigns of the later Tudors and the reigns of the early Stuarts.
An important consequence was that this form of extended publication and promulgation, along with the availability of hitherto hard-to-find legislative material, placed greater emphasis upon the statutes. The direction by Henry VII that the statutes be published in English gave added weight to this emphasis, although initially publication in “the vulgar tongue” fulfilled the state policy of ensuring that the subject knew the law. Print was present at a time when legislation was seen, especially by Thomas Cromwell, as a means of implementing the Henrician Reformation.
The printing work of the Royal Printers was not restricted to legal works and the privilege grew over the years. By 1577, when Christopher Barker held the patent, it extended to “Statutes, Acts of Parliament, proclamations, injunctions, bibles and testaments, service books, and all things issued by command of Parliament” either wholly or partly in English along with some specialized work.” There were also occasions when a Royal Patent could issue to other printers for a special project even although such work might have been within the scope of the Royal Printer’s patent.
The office of the Kings Printer was distinct from the common law patent – the patent that permitted the exclusive printing of case-law and non-statutory material – although it was another form of monopoly. The advantages of having a single reliable “printing shop” responsible for the printing of Statutes and official material are similar to those attached to the Common Law patent.
Print vs Manuscript
Yet curiously, although the advent of print may have had an impact upon the making the law available, when it came to conflicts between the printed version of the statute and that in manuscript, there seemed little hesitation on the part of Judges to compare the two and favour the manuscript version.
In Stowell v Lord Zouche (1569) where there was an error in the printed statute of Edward I. In Vernon v Stanley & Manner (1571) the printed statute was corrected by sense and by ‘librum scriptum domini Catlyn’ In Ligeart v Wisheham (1573) the printed statute was at odds with ‘lestatute script’ and in Taverner v Lord Cromwell (1572) the French and English versions of the statutes were compared along with Rastell’s edition and the manuscript.
This exemplifies the ease with which the sixteenth century judges lived with the co-existence of manuscript and print. A printed statute was able to be challenged by a manuscript version. Print was not accorded a superior status to the manuscript version and, importantly for a consideration of Eisenstein’s premise that printing technology was an agent of change, the way in which print assumed a status superior to manuscript depended very much upon those who were using and who were expected to rely upon printed material.
Such attitudes stemming from the fluid approach to information from print and manuscript media, which was an aspect of their co-existence, demonstrates that as long as lawyers were going to accord a superior or at least equal status to manuscript material, the superiority (and ultimately authority) of print would remain in question. The printing of a statute had not yet reached the point where a printed statute in and of itself was totally authoritative. That was to come later.
The Digital Paradigm
Although legislation has been available on-line it has not until now been authoritative. Yet even although the on-line version is official there are elements that take us back to the print paradigm and the recognition that the printed version is the authoritative one. The official version may be printed out. The pdf version must have the coat of arms to be the authoritative text which will be accorded recognition by the Court. Thus, even if a Judge is referred to an on-line version it must be in pdf format with the coast of arms. It will not be enough to look at the web-based version of the statute. Strictly speaking, although the content of both the web based version and the pdf may be identical, it is the pdf that is “official” and authoritative.
This echoes some of the themes present in the early days of printed legislation – a question of acceptance of the product of the new paradigm, an attempt to provide some sort of authority by having an authorised agency responsible for the product, a co-existence with an earlier paradigm. In addition it reflects two themes which are prevalent in the shift towards a new paradigm. The first is summed up in the comment made by Marshall McLuhan in Understanding Media: The Extensions of Man where he said:
“When faced with a totally new situation, we tend always to attach ourselves to the objects, to the flavor of the most recent past. We see the world through a rear-view mirror. We march backwards into the future.”
The second is the concept of functional equivalence which is in some respects an aspect of McLuhan’s “rear view” mirror. Functional equivalence focuses upon the content layer of the Digital Paradigm and effectively ignores the fact that its deeper layers and underlying qualities make the nature of information and its communication different from what went before. Functional equivalence can relate only to the end product and not to the inherent properties that underlie the way in which the material or information is created, stored, manipulated, re-presented and represented. Functional equivalence means that we can create a bridge between an old information technology and a new one – even although the new one is paradigmatically different from the old. Functional equivalence allows us to feel comfortable in the face of the continuing disruptive change inherent in digital technologies and, in the case of the statutes on-line gives us a reassurance of authenticity.
As Paul Levinson said in Digital McLuhan – A Guide to the Information Millenium
“A quick glance in the rear-view mirror might suggest that electronic ink is an ideal solution: it allows the convenience of paper, with the word processing and telecommunication possibilities of text on computers with screens. But, on more careful examination, we find that we may not have been looking at not the most relevant part of an immediately past environment. One of the great advantages of words fixed on traditional paper is indeed that they are stationery with an “A”: we have come to assume, and indeed much of our society has come to rest upon the assumption, that the words in books, magazines, and newspapers will be there for us, in exactly the way we first saw them, any time we look at them again in the future. Thus, the stationery as stationary, the book as reliable locus, is a function as important as their convenience in comparison to text on computers. Of course, we may in the future develop electronic modes of text that provides security and continuity of text equivalent to that on paper – modes that in effect allow the liberation of text without any diminution of its reliability – but current electronic “inks” “papers” are ink and paper only via vision in a rear-view mirror that occludes a crucial desirable component of the original.”
But perhaps one of the most significant outcomes of the digitisation of legislation is this. The Parliamentary Counsel’s Office will cease publication of annual bound volumes of legislation after the 2013 volumes are printed, and traditional hard-copy reprints after the current programme is completed. Official online legislation and print on demand will render them obsolete. What started with Henry VII with the printing of legislation will, however remain. The volumes of legislation will go but the individual copies of statutes will remain. As the Royal Printer in Henry’s day printed copies of public statutes as individual publications, Parliamentary Counsel’s Office will continue to publish booklet versions of legislation, available from Legislation Direct and from some bookshops. Plus ca change, c’est la meme chose.