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The Pamphlet Collection of Sir Robert Stout: Volume 88

Introduction

page 3

Introduction.

The greatest boon resulting from abolition is, without a question, the unification of the authority for making laws in the future. From this time forth, the entire complexion of the Statute Book will be altered; Acts of a purely local and personal character will be multiplied; no small part of the legislation will have to be directed towards the gradual absorption of the different laws of the several Provincial Districts into measures of general applicability; and something will have to be done very soon towards the publication of a revised edition of the existing Statutes for convenience of reference.

There could not be a more favourable time than the present for a review of the existing law of the Colony, and I have therefore made the attempt in this publication, in a method intended to serve as an accurate index to the legal practitioner on the one hand, and as a no less safe guide for the legislator on the other.

Every Act passed by the Supreme Legislature of New Zealand will be found in this book in an alphabetical arrangement, as far as this was possible without serious alteration of short titles—where short titles have been varied the alteration is indicated in italic type. No attempt has been made of classification into subjects, with the sole exception that all Waste Lands Acts and Special Settlements Acts have been brought together under the one general head of "Waste Lands."

The whole law of the General Assembly is here divided into two main branches : the Existing Law, and the Extinct Law; sub-divided into Tables as follows :—
Existing Law—840 Acts- Extinct Law-690 Acts-
Table B. General Acts ...556 Table E. Abrogated Acts 54
Table C. Local Acts 214 Table F. Obsolete Acts 270
Table D. Personal* Acts70 Table G. Repealed Acts 365

The Imperial Acts relating to or in force in New Zealand will be found distributed in the first and the last of the Tables.

Table A comprises a selection of those Imperial Acts in force in the Colony that are of most frequent application; together with a Supplementary Table of the same Acts arranged in chronological order.

Table H, intended to be read with Table A, indicates those Imperial Acts and parts of Acts formerly in force here, but which are now repealed.

Following the Tables are inserted lists of the geographical divisions page 4 of the Colony, which it is trusted will be found useful for general reference, and may possibly induce some of my professional brethren in Auckland to abandon the practice of inserting in conveyances and other deeds the names of counties that have only a paper existence. Auckland differs from Wellington in this respect, that while in the former Province, certain counties were constituted without any legal authority to do so, in Wellington the authority had a legal existence, but it was never exercised.

In the Postscript at the end of the book, I have drawn attention to the state of the law relating to mortgages, in the hope that a change therein may be made, and uniformity attained; also, I have advocated a scheme by which selector's of land on deferred payments may have their licences registered. In the remarks I have made in connection with trusts, I have in no way intended that the rule of not registering trusts should be itself relaxed, but I think a declaration of trusts ought to be required, because the public will not be satisfied unless some step is taken by which the status of a person dealing with land, as a trustee, shall be made manifest; caveat emptor notwithstanding.

Of the Ordinances and Acts of the several Provincial Councils I have taken no notice in the present work, as the doing so would have too much increased its bulk and delayed its publication. This is a work that will have to be undertaken at a future time. A classification of these Ordinances in a shape easy for reference is indisputably necessary, if we are to know thoroughly what is law in the land and what has ceased to be such; and I see no more accurate way of doing this than by a careful study of the records in the possession of the Colonial Secretary to complete in an amended form (omitting the long titles) the Table of Provincial Ordinances and Acts which I prepared for the Government and was published in the Appendix to the Journals of the House of Representatives in 1862. (A. No. 4A.)

A Table such as this, brought up to the date of abolition, and accurately annotated, would exhibit at a glance, not only such of the Provincial Ordinances as remain in force, but also should indicate the different Provincial Ordinances on the same subject still existing, and thus become a certain and safe guide in the future preparation of general measures that may be intended for the consolidation of those Ordinances. Many of the aforesaid Ordinances have already been, more or less, affected by Acts of the Assembly, and no doubt the compilation of such a table as is here indicated would require great care and circumspection; but its general utility would amply repay the trouble of preparing it, and once done, it would be done for good and all. Deferring, then, the consideration of these provincial enactments, I desire, in this work, to limit attention to the Acts of the Supreme Legislature in the Colony.

From the Tables cited above it will be seen that there are 1530 Ordinances and Acts of the Supreme Legislature of New Zealand passed since the foundation of the Colony; and these are distributed page v through nineteen volumes, costing nearly as many pounds. What can be done with this mass of law to reduce it into a more practical and useful shape ?Much has heretofore been said about consolidation and codification; but nothing has been done, seemingly from a dread of the difficulties attending the work. And yet these difficulties vanish as the work is approached nearer. Let us see what has been done in England in the matter.

The Imperial Parliament, during the past fifteen years, has passed ten revision Statutes, whereof the principle seems to be unsparingly to cutaway from the Statute Book all Acts, and sections of Acts, and even particular words of sections, that have become either obsolete or redundant. As soon as an Imperial Statute has worked out its operation, it is removed. Four volumes of the revised edition of the Imperial Statutes have already been published, and already there has been repealed by the later revision Statutes whatever matter in this revised edition has become obsolete since its publication. Why can we not in New Zealand do likewise ?

Following this Introduction will be found a copy of one of the English Statute Revision Acts altered and adapted to suit the circumstances of New Zealand, by which I would suggest that the whole 600 Acts comprised in Tables E, F, and G, the Imperial Acts and parts of Acts in Table H, and the repealed sections of the Acts in Tables A and B, should be specifically repealed together. There is Imperial precedent for this; and by following this precedent there would be obtained in one sheet a collection of the whole dead law of the Colony upon a particular day. One single act such as this would be cheap if it could be bought for a thousand pounds.

Were this to be done, and all repealed and obsolete sections of existing Acts included in such repeal, the whole existing law could be collected in three volumes of Hansard size. These repealed sections of Acts number more than 550, and with obsolete sections (say another 100) make up together about 700 sections, or the bulk of 70 Acts of 10 sections each : all which could be cut away. Such a repealing Act as I have here proposed is a measure that needs no advocacy; at any rate, I feel that anything I could say would not make the need of such a measure more apparent. They who have occasion the most frequently to refer to the number and the clumsy size of our New Zealand Statute Books will the most readily appreciate the value of a compressed reduction of the same.

I do not wish anything to be done hastily, although I desire something may be done speedily : I therefore invite the profession candidly to criticise the draft Bill I have suggested (see Appendix B, page xi.), so that some Bill may be arranged in the best shape for the purpose contemplated, viz., a wholesale sweeping away of all dead leaves.

Having said thus much as to the purging of the existing Statute Book, I would venture to add a few words as to the shape of its publication in future.

page vi

The Constitution Act (sec. 60) requires every Act of the Assembly after assent, to be published in the Gazette for a promulgation thereof.

This is accordingly done, and some fifteen hundred copies of all Acts are gazetted accordingly. But when this is done, where is the necessity of printing all the local Acts with the public general Acts, thus making up a bulky volume of which only one-half is of universal interest.

Take the Statute Book of 1876 for an example. It consists of 103 Public Acts of 710 pages and one Private Act of 10 pages. In the first place, to print "The Timaru Gas Act, 1876," in the Statute Book as a Private Act is an error. There has never yet been passed in New Zealand one single Private Act The Standing Orders of the General Assembly say that "Private Bills shall be understood to be Bills which are promoted for the private interest of individuals or companies, or which, by their provisions, directly interfere with the private property of individuals."

This, it must be remembered, is a parliamentary definition respecting Bills which is of no authority whatever in respect to an Act when submitted for the Governor's assent. The Act is judged by law, and the Interpretation Act says that "every Act of the General Assembly shall be taken to be a Public Act, unless the contrary be expressly provided by the Act." A special enacting clause therefore is necessary to convert a Private Bill into a Private Act. All the Acts printed as Private Acts are Public Acts of a local and personal character, in no way different from other Acts of the same nature printed in the body of the volume of Acts.

To revert, however, to the 103 Public Acts of 1876—of these Acts only 39 are Public General Acts; the remaining 64 are all Local and Personal Acts. In the English Statute Book these are not printed, but are arranged in a separate and distinct classification—their titles alone being given at the end of the volume. Why could not this plan be adopted here; all the Local and Personal Acts having been already gazetted, every requisite need is supplied without multiplying the copies so much. If two thousand copies of the Counties Act are required, what is to be done with two thousand copies of the Local and Personal Acts (such as the Timaru Gas Act or the Renwick Lease and Conveyancing Act) ? These local Acts fill 306 pages, i.e., half the volume, which means that for every 1000 printed copies of these alone, one ton weight of paper is required, and when printed they are not looked at.

The entire arrangement of the Statute Book is under the direction of the Joint Printing Committee of the two Houses. Upon their report, the Assembly by resolution could order that all Acts should be classified into two branches, the Public General Statutes and the Local and Personal Acts; the first class to be numbered consecutively by themselves in Arabic figures, and the Local and Personal Acts to be numbered consecutively by themselves in Roman numerals. If the system of consecutive paging of the Acts in the Gazette were abandoned, several Acts of the different classes could be gazetted simultaneously. The gazetting page vii of an important Act like the Debtors and Creditors Act would not be delayed for the necessary paging and gazetting of all Acts anterior to it in number, though far below it in general interest. Each Act gazetted being paged by itself, the number of the Act ought to be put at the top of each page after the year of the reign; the year of our Lord, after the italic Short Title in the second line of the page; and the words "Local and Personal" inserted after the Roman numeral on the first pages of those Acts. Thus every Act gazetted would form a separate document complete in itself. With the Gazette issue I would suggest that the printing of all Local and Personal Acts should cease, and the compilation of the General Statute Book be commenced by the removal of the Analysis of all the General Acts, and their collection together in continuous double column alphabetically at the end of the book; remove royal arms, close up the type, reduce the size of the page to a quarto, page the volume thus reduced in size and bulk, and by this arrangement all the Public General Acts could be published completely in numerical order, with an alphabetical index to each Act, and a paged index to every section thereof. All the Public General Acts of the year 1876 could thus be reduced to about 300 pages instead of 700, and instead of thirty shillings would only cost the half—whilst, on the other hand, a sufficiently abundant number of all other Acts would be available for reference in the files of the Gazette.

While speaking of the arrangement of the Statute Book, I would also wish to draw attention to the short titles of Acts. By the Interpretation Act, any Act having a short title may be cited by such short title, but some of our Acts have short titles as long as the long titles themselves. Here I would suggest that the Clerk of Parliaments should have an authority so far to transpose the words of short titles of Bills before they are assented, as to adapt them for classification in an useful manner. I insert a few short titles to illustrate my meaning:—"The New Zealand Post Office Act, 1858." "The New Zealand Forests Act, 1874." The "Borough of Wanganui Borrowing Act, 1872." The "Constitution of the Westport Borough Proceedings Validation Act, 1874."

The "Anne Hood Grant Act, 1875." The "Hugo Max Bucholz Naturalization Act, 1869." Inverted commas are only of use to indicate a quotation, they are out of place in the short title enacting clause of a Bill, and ought not to be used there; because, when inserted therein they act like the iron band around a bale of merchandise—what is within cannot be brought out; the first two Acts above, would, by their short titles, have to be classified under the letter "T." Again, why "New Zealand" Post Office? we cannot legislate for any other country. The pregnant word of every public Act, the geographical word of every local Act, the surname (all Christian names being omitted) of every personal Act. should be brought first, and the above Acts should be, The Post Office Act; The Forests page viii Act; The Wanganui Borrowing Act; The Westport Borough Constitution Proceedings Validation Act; The Hood Grant Act; The Bucholz Naturalization Act. These matters may appear trifling, but it is by the neglect of trifles that disorder arises.

The privilege of citing an Act by its short title is of no use unless the short titles themselves are short and pithy. No better short title could be given to any Bill, than the popular name by which such Bill is most generally known; in fact, this is the original intention of short titles.

This leads me to the concluding matter I wish to draw attention to and which is a matter somewhat akin to short titles.

The Interpretation Act, 1868, to which reference has been made above, is by no means sufficiently known, or at least attended to. The long title of it is bad; at any rate, in order to bring the Act out of its obscurity, I would amend the Title of it, and call it "An Act for shortening and explaining the language used in Acts of Parliament." and I would propose the insertion of certain sections therein which will be found in Appendix A, (page ix.) to this introduction, from the adoption of which I am satisfied that there would result an immediate saving in the text matter of every Act passed in the future.

I herewith conclude my remarks upon the Statutes and the Statute Book. I have written nothing in any spirit of carping criticism, still less do I wish it supposed that I have any desire to thrust my particular views forward; in all that I have done or written herein I have been prompted by an earnest zeal to do my little share towards obtaining a public benefit, and I have no other motive whatever. There is a legal maxim which says "Lex appetit perfectum;" our laws in New Zealand are far from perfect; but before? the work of improving the law can be properly done, it is of almost absolute necessity that a revised Statute Book should be prepared to indicate the real existing state of that law at the present time. Like a garden deserted for years, the Statute Book is overgrown with weeds; my modest part by the present work has been, as an ancillary part of the greater work that will have to be done, to gather these weeds and dead leaves together in heaps : it remains for the General Assembly to decide whether the rubbish shall still encumber the ground, or be carted away and burned. If my suggestions are destined to meet with approval, well and good; but, equally well, if in provoking attention, and becoming themselves condemned, they in any way advance the work of condensing the Statutes.

Si quid novisti rectius islis, Candidus imperti; si non, his utere mecum.

John Curnin.

* One Act has been accidentally omitted from this Table; sec Addendum at beginning of the book.