Recently, in Hemert v R [2023] NZSC 116, we were given an illustration of statutory interpretation aided by reference to extraneous material. [1] At [57] the majority (with Williams J agreeing at [111]) refer to a report from the Law Commission which mentions how the relevant section should be interpreted, and to the absence of any contrary indication in the debates that Parliament had in the course of passing the legislation. Accordingly, the natural meaning of the enactment applied, and the Court held at [63] that this had been misconstrued by the Court of Appeal.
That’s all very well, and there is of course much more of interest in this case. But what I have summarised does raise the question, what would the approach be if proper judicial assessment of the natural meaning of legislation was in conflict with what other bodies - such as the Law Commission and Parliament (or more accurately, politicians in the course of debates in Parliament) - had indicated?
The Legislation Act 2019 does not explicitly endorse reference to such extraneous materials. Whether s 10, the relevant section here, does implicitly allow that in the search for the “purpose” of the legislation, and to any relevant material for “context”, is a matter upon which screeds may be written. Generally, enactments are taken to preserve as much of the existing law as is possible (or, as is sensible, given that they are usually intended to change something). Reference to extraneous materials was a common practice before the Legislation Act came into force, replacing earlier legislation on the interpretation of legislation.
Constitutionally speaking, the courts interpret and apply legislation. Independence of the judiciary implies that individual people, whether unelected officials who work on drafting legislation, elected members of Parliament, or legal experts who do not represent any party to litigation and who are not called upon to assist the court with submissions, do not tell the courts what enacted law means. It is for the legislature to make the meaning of its enactments intrinsically clear.
Still, opinions may differ over those matters. When judges find support for their own take on what is a natural meaning of legislation in the work of extraneous bodies, they may be inclined to cite that work in support. No harm is done by that, and it may provide further clarity.
Of course, as Williams J is careful to point out at [112]-[113], application of a prescribed phrase to particular circumstances can be difficult, and its meaning may not be static where “contemporary community attitudes and values” must be taken into account, so that it may need to be developed incrementally but only as necessary. This is, we may observe, the process whereby the law shifts to meet the needs of the community as judicial experience and judgement is brought to bear in individual cases.
In some ways this approach to interpreting legislation is like the development of the common law. Who can really forget what Julius Stone said [2] (I paraphrase in order to remove some of the diction which now appears rebarbative):
“… changes in legal precepts by reference to contemporary social facts and ideals … [are brought about by] the person in the appellate judgement seat, imbued by a life-span with some of the temper, perplexities, insights, preferences and values of their generation. When we ask how [this change in precepts is to occur], the answer is certainly not in the giving of judgements which conform to predictions based on past performances. It is rather in deciding what is now just [as the judge sees it].”
Stone was writing in 1966 about how machines cannot adequately replace human beings in the judicial role. “[Judges], in doing justice, seem always to be transcending the drive, methods, and limits of mere intellect.”
And from Stone it is worth turning our attention to a lecture delivered by the Chief Justice of New Zealand on 13 July 2023, marking the occasion of the 150th anniversary of the Law School at the University of Canterbury, Christchurch, New Zealand. This asks, if I may put it generally, what topics should be included in a law degree, aside from the core subjects? This may leave one wondering if there is any room for more than there now is, or whether some subjects could be dropped. The central concern seems to be putting the law in the context of the community and its institutions (its “systems”). Getting students acquainted with how things are done, and with what should be done, has its place in the law degree.
This is not to ignore the reality that most law graduates will learn in practice more of what they need to know than they could ever be taught at law school.[3] In the environment of office, courtroom or other workplace, an awful lot of education goes on. So, what are the surviving effects of a law degree? The mind trained to analyse and reason in the legal way, to locate relevant law both legislation and case law, and to work towards a goal desired by the client. A mind that could not be imitated by a machine.
In going to work in criminal law, most graduates have left their formal study of the subject several years in the past. There are plenty of training opportunities provided by the profession [4] to get such graduates back up to speed, and there will be colleagues who are ready with advice and assistance. Refresher seminars in the law of evidence and procedure will also be available, as will opportunities about contextual matters such as client relations, cultural contributions to legal process, and working with state agencies.
The Chief Justice’s points are, of course, well made, but it seems to me that there are plenty of ways of accommodating them outside of formal university education. University study at the undergratuate level should be devoted to getting an understanding of the intellectually demanding aspects of legal education: the substance of the subjects, their interrelationships, and the qualities that make them “law”. [5] And skills in utilising the advantages and avoiding the dangers of AI generated text will have to become second nature for students, with emphasis on accessing official versions of judicial decisions and legislation, and genuine copies of secondary materials.
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[1] The issue was interpretation of the phrase “the evidence of the offence and the circumstances of the offender” in relation to whether a life sentence for murder would be manifestly unjust. The Supreme Court held that these two elements - the evidence and the circumstances - were to be considered in the round, so that although the evidence of the offence might of itself not make a life sentence manifestly unjust, when considered with the circumstances of the offender the life sentence could be manifestly unjust, although not in this case.
[2] Julius Stone, Social Dimensions of Law and Justice, Stevens and Sons, 1966.
[3] I left my formal undergraduate law studies not knowing what bail is, but after a morning in the Magistrates' Court (observing, in preparation for becoming a duty lawyer) I certainly did know. No one was disadvantaged by my ignorance. In due course I did find a use for the considerable amount of law that I did know. Many people were advantaged by that. As Adam Gopnik observes in The Real Work - On the Mystery of Mastery (2023), "The real work is what we do for other people."
[4] What could be more wonderful than “continuing legal education”- a now institutionalised requirement. Just saying it makes us feel better.
[5] And (don’t let me go on about this), some law schools appear to gain status by heaping an awful lot of work on students, to the disadvantage of the slow, thoughtful readers.
