OPINION OF THE ATTORNEY AND SOLICITOR-GENERAL ON THE PUBLICATION OF STATUTES.

Appendix to the Journals of the House of Representatives, 1880 Session I, A-11

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1880. NEW ZEALAND.

OPINION OF THE ATTORNEY AND SOLICITOR- GENERAL ON THE PUBLICATION OF STATUTES.

Return to Order of the House of Representatives, dated Qth July, 1880.

TrtE question submitted to us is whether the statutes passed in the sessions of 1878 and 1879 are invalid, or affected, by reason of their non-publication in the Gazette, as required by the 60th section of the Constitution Act. We have considered the question from two points of view, first, the general proposition as to the necessity for promulgating the law; and, second, whether the Constitution Act has controlled or affected the general proposition in any way. 1. As to the first point: —• Although, as a general rule, promulgation is required, yet it is stated to be " matter of very great indifference how this is done." It may either be by tradition and long practice, as is the case with the common law of England, or by being notified by writing or printing, which is the general course taken with all Acts of Parliament. (See Stephen's Commentaries, vol i., p. 27, 7th edition.) In early days in England, and before the invention of printing, it was the practice that Acts of Parliament should be proclaimed by the Sheriff at the County Court, and in the case of premunire upon the statute of 27 Edward 111. against the Bishop of Chichester, mentioned in the fourth part of Coke's Institutes, it was objected that the statute had never been published in the county. But the Court held that, although proclamation had not been so made, " every one is bound to take notice of that which is done in Parliament, for as soon as the Parliament hath concluded anything, the law intends that every person hath notice thereof; for the Parliament represents the body of the whole realm, and therefore it is not requisite that any proclamation be made, seeing the statute took effect before." As to the second point:— The 60th section of the Constitution Act directs that the Governor shall cause every Act of the G-eneral Assembly, which he has assented to in Her Majesty's name, to be printed in the Government Gazette, and declares that such publication shall be deemed the promulgation thereof. It appears to us that this enactment is merely directory, and that its omission would not, and did not, in any way invalidate the Acts passed by the Assembly. We are confirmed in this view by reference to American authorities, where in several States publication of laws is provided for ; and it has been held that if the Legislature provides that an Act shall take effect from its passage, it will have operation, although not published in the official Gazette. (See Cooley's Constitutional Limitations, 4th edition, p. 193.) But we are further of opinion that the 60th section of the Constitution Act has been virtually abrogated by subsequent legislation in the colony, and that the formal repeal of that section, by the Interpretation Act of 1878, did no more than declare what was already law. The Interpretation Acts of 1858 and 1868 each provided that every Act which should not contain a provision as to the date when it came into operation should come into force on the day when it received the Governor's assent. There is a further provision that this date should be indorsed on the Act and deemed part of it. These provisions are repeated in the existing Act of 1878, and have been adapted from the statute of 13 George 111., c. 13. Previous to the passing of this statute, every Act, in which no particular time was specified for its commencement, took effect from the first day of the session of Parliament in which it was made, often giving it a retrospective effect, sometimes months before it could be promulgated or was even passed. The date of the Governor's assent is therefore the date when the Act comes into operation if no other date has been fixed ; and, as it is a well known rule that Acts of Parliament prove themselves, there seems to us no doubt that an Act of the General Assembly showing upon its face the date of the Governor's assent is law in the colony, although it may never have been gazetted as directed by the Constitution Act. Proof of an Act is usually made by reference to a printed copy, and if this be questioned, then recourse must be had to the Parliament roll. Upon the whole question, therefore, we are clearly of opinion that the Acts of 1878 and 1879 are not invalid, or affected, by reason of their non-publication in the Gazette, as formerly directed by the 60th section of the Constitution Act. Fred. Whitakee. W. S. .Reid. Crown Law Office, 28th June, 1880.

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