DRAFTING OF STATUTES

Press, Volume LXX, Issue 21198, 23 June 1934, Page 12

DRAFTING OF STATUTES

Importance of Work VIEWS OF LAWYERS The remark of Mr Justice Reed in the Full Court at Wellington on Wednesday that "more than half the work before the court was interpreting statutes," and the suggestion of Mr P. J. O'Regan that Parliament should have the assistance of more of the legal profession when amending the law, was commented on by Christchurch lawyers yesterday. They said that in general the drafting of statutes in New Zealand was well done, although at times it appeared that the law draftsman was caused difficulty when legislation was' rapidly dealt with by the House.

Mr W. J. Hunter said that Mr Justice Reed's statement was rather startling. His comment, however, did not mean that the law drafting officers were not able and efficient men, nor did it mean that Parliament was careless in regard to the framing and wording of statutes. However careful, capable, and learned the persons might be who were responsible for the framing of the statutes there would be a certain number of cases which would have to go to the courts for interpretation.

Reasons fior Interpretation

The fact was that many of these cases for interpretation were really efforts on the part of individuals to have the circumstances they were interested in either brought within the statute, or to argue that the statute did not apply to them. It was no reflection on the draftsmanship that such caser were taken to the courts.

The Companies Act, 1933, was an example of the care taken in drafting statutes. It was based on the new Companies Act passed in England, which had the attention of the most experienced company lawyers, accountants, and commercial men before passing into law. In New Zealand the statute was submitted to a committee including re- 1 ' presentatives of the Law Society and the Accountants' Society, which spent months in considering it. All this was done before the bill went to Parliament.

In a subject of such complexity it was only natural that there should be points that could bo elucidated only by the courts. The English Sale of Goods Act was drafted by a master of the subject, and was considered with the greatest care before being passed into law, and yet hundreds of cases had had to be decided upon that statute. When drafting a statute it was humanly impossible to foresee all the combinations of circumstances which might arise.

Lawyers' Statutes

For many statutes it seemed that there was no need for further collaboration with the legal profession in the drafting work—that remained between the law draftsman and Parliament. In the case of statutes which Sir Joseph Ward used to call "lawyers' statutes" it was certainly desirable that something should be done along the lines suggested by Mr O'Regan. The assistance of legal men with particular knowledge of the matter dealt with should be called in. In general the standard of law draftsmanship in New Zealand had been high. Another lawyer remarked that the law draftsman might often give considerable care to drafting a statute before it was introduced to the House, but later, by amendments made there, be compelled to work into it clauses that were not readily assimilated into his original plan. His work was made particularly difficult when, as had happened frequently in the last few years, a great mass of legislation was dealt with hurriedly by the Hous^ Judges' Comments That the courts are bound to assume that Parliament has given full consideration to the statutes it passes and to their drafting has been referred to from tirr „> to time by the judges of the Supreme Court. The Chief Justice (Sir Michael Myers) in the case of Worth v. Worth in the Court of Appeal in 1931, after referring to several possible effects of the legislation, and stating that the language of the statutory provision was perfectly clear, without any ambiguity, said: "We are entitled—and indeed bound—to assume that all matters of this kind were within the knowledge of and were duly considered by the Legislature, and that Parliament has considered, notwithstanding these possible difficulties and doubts, that it was necessary and desirable to confer the right it has conferred. . . Mr Justice Herdman in the same case said: "It may be that ii* legislating as it has done Parliament has paved the way for scandal, injustice, and the suffering of innocent people; but, no matter how strange and fantastic may be the legislation which Parliament enacts, our sole duty is to interpret it." The manner of drafting the Dairy Produce General Regulations, 1933, made under the Dairy Industry Act, 1908, was discussed by Sir M'ichael Myers in 1933. He then said: "If it be thought necessary to interfere with either the personal liberty of the subject or his freedom in exercising his lawful trade or business - . . it can scr.-cely be doubted that such a matter should (except where emergency conditions require otherwise in the interests of public safety) be the subject of direct lejgislation by Parliament itself in appropriate, clear, and unequivocal language rather than be left to the discretion of a delegated authority."