WHAT IS DISTINCTIVE ABOUT NEW ZEALAND LAW AND THE NEW ZEALAND WAY OF DOING LAW - INNOVATION IN NEW ZEALAND STATUTE LAW

Some statutes are known for the boldness and novelty of their policy. Others for the use of intricate and novel legislative techniques. Some lawyers may admire particular legislative techniques that have no great impact except to implement faithfully the policy of the Act. On the other hand, statutes that are simple in drafting terms may raise enormous controversy leading to a difficult and long parliamentary passage. In an informal survey of Law Commission lawyers, three pieces of legislation were elected as the top innovative pieces of New Zealand legislation: the accident compensation legislation; the Official Information Act 1982; and Treaty of Waitangi legislation. The criteria adopted for selection by the author in this paper are innovation in the policy behind the legislation, including policy that is unusual by international standards; innovation in how the legislation operationalizes the policy; and examples of failure and ineffectiveness of legislation. While New Zealand tends to pat itself on the back regarding our supposed innovation and bold law reform, we could do a great deal better with our legislation and we have a number of endemic faults that need to be cured. This paper attempts to analyse those features of New Zealand statute law that are novel and innovative. It first looks at the history of legislation in New Zealand, then analyses innovative features in particular areas of law. These include: environmental statutes; constitutional statutes including statutes dealing with local government; social welfare statutes and other social legislation; economic regulation statutes; family law; commercial law; tax law; and education. First, the question of whether statute law is derivative or original is discussed. That is followed by an attempt to look at statutory innovation in terms of waves of reform at various historic periods. Then comes a discussion arranged around legal topic headings. The New Zealand statute book reeks of the common law method. It is unsystematic, incomplete, sporadic and episodic. New Zealand passes highly elaborate statutes to deal with particular policy issues without really considering the profile of the statute book as a whole. Codification is essentially a rational activity trying to produce order out of chaos, and there must be a better intellectual method for arranging the body of the law in a coherent pattern.