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Access to Secondary Legislation Project news

September 2018 update

June 2018 update: Legislation Bill progresses

December 2017 update: First reading of Legislation Bill and next steps

Earlier news


September 2018: Update from the Access to Secondary Legislation Project

The Access Project continues to make progress towards its objective, which is “To make New Zealand’s secondary legislation readily accessible”. The aims are:

  • to define what secondary legislation is
  • to identify the location of all secondary legislation
  • to improve access to it through the New Zealand Legislation (NZL) website.

The project will be implemented by two Bills. The first is the Legislation Bill, which was reported back by the Justice Committee on 1 June 2018. A key change made by the committee is the inclusion of a new list duty that will apply before the duty to publish secondary legislation in full on the NZL website. This list duty requires makers of secondary legislation to provide the PCO with information about all in-force secondary legislation. The default timing for this is one year after the commencement of the Bills and associated regulations. The list information will be published on the NZL website and will form a complete catalogue of secondary legislation.

The second Bill is the Secondary Legislation (Access) Bill, currently being drafted. It will amend each empowering provision in the statute book to clarify which instruments are secondary legislation. Consultation with agencies is underway to ensure that amendments fully capture changes required to empowering provisions.

In August, the PCO briefed the Regulations Review Committee on the project’s progress, as we do regularly. We have also started discussions with the Legislation Design and Advisory Committee (LDAC) whose Guidelines assist with the development of legislation. The legal research and methodology developed by the Access Project is being made available to LDAC to contribute to future editions of the Guidelines, including guidance for future provisions empowering the making of secondary legislation.

We have identified, and made contact with, over 100 government and non-government agencies that are empowered to make or administer secondary legislation. Our advice to all these agencies is that there are steps you can take now,  if you haven’t already:

  1. (For departments) Identify all instruments that will be secondary legislation—based on spreadsheets concluded with the Access Project—and ensure your department’s related Crown entities and other bodies are informed.
  2. (For all agencies) Make all secondary legislation available online.
  3. (For all agencies) Consider publishing consolidations of amended instruments or, better still, revoke and replace instruments that have multiple amendments to form a single current instrument.
  4. (For all agencies) Plan changes to the organisation’s scheme of delegation to delegate formal responsibility for notifying legislation to the PCO. A model will be prepared and circulated by the PCO in due course.

The newly-appointed Workstream Lead—Business Implementation will, with the Project Director, engage with all these organisations to help to prepare them for any changes that will affect them as a result of the project

Next steps for PCO
  1. We will be inviting chief executives of several departments, Crown entities, and statutory bodies to nominate one of their people to participate in a reference group to assist us in planning and supporting the transition.
  2. We will be convening a user group to test the end-user requirements for the lodgement portal.
  3. We will shortly send an information pack to agencies, advising what information must be provided by makers of secondary legislation to the PCO to fulfil the list duty.

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June 2018 update: Legislation Bill progresses

On 1 June 2018, the Legislation Bill was reported back to the House after consideration by the Justice Committee. The committee has recommended some changes to the Bill.

The most significant change was to give makers of secondary legislation a duty to provide information about their in-force secondary legislation to the PCO. The PCO will publish all of this information on the NZ Legislation website. This “list” duty will ensure the early delivery of one of the key benefits of the project—identifying, for the first time, a complete collection of secondary legislation and where it can be found. The Justice Committee also confirmed that secondary legislation made by local authorities is not in scope, and extended this exemption slightly to cover legislation made by council-controlled organisations.

Makers of secondary legislation will have one year from the commencement of the new Legislation Bill to provide their “list” information to the PCO. This deadline may be extended by regulations to a maximum of five years.

The Legislation Bill will be implemented via amendments to existing legislation in the Secondary Legislation (Access) Bill.

The Secondary Legislation (Access) Bill will amend identified empowering provisions (in each Act) so that they clearly state what is legislation. As a result, secondary legislation made under those provisions must be published on the NZ Legislation website and will be subject to oversight by Parliament’s Regulations Review Committee.

The PCO continues to engage with the legal teams in departmental agencies to conclude discussions on empowering provisions in primary legislation that they administer.

Research has identified around 4,000 provisions that empower the making of secondary legislation. Since multiple instruments may be made under a single provision, the research suggests there may be many thousands of items of secondary legislation currently in force.

Over 100 government and non-government agencies have been identified as being empowered to make secondary legislation. The project will continue to engage with these organisations to help to prepare them for any changes that will affect them as a result of the project.

There are three other components required to implement the project:

  • a lodgement and publication system for use by departments and agencies when they make secondary legislation
  • modifications to the PCO’s publishing system and the NZ Legislation website to enable secondary legislation drafted by departments and agencies to be listed (and ultimately published) on the website, and to simplify, broaden, and improve access
  • support to agencies for notifying and (ultimately) publishing instruments, to take advantage of the new centralised publication system.

If your organisation makes secondary legislation, there are some steps you can take now, if you haven’t already:

  • locate all the secondary legislation you have made or administer and that is currently in force
  • provide members of the public with easy access to that legislation, where practicable through your agency website.

For more information about the proposed "list" duty, read about what agencies need to know and do.

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December 2017 update: First reading of Legislation Bill and next steps

On 5 December 2017 the Legislation Bill received its first reading. This Bill, along with the upcoming Secondary Legislation (Access) Bill, provides the statutory structure for ensuring—for the first time—that secondary legislation is readily accessible online.

On behalf of the Attorney-General, Hon Chris Hipkins gave the first reading speech for the Legislation Bill, acknowledging the work of Hon Christopher Finlayson in the previous government. Minister Hipkins emphasised the need for New Zealanders to be able to access the law with ease. He linked this aim to the Government’s commitment to open and transparent government.

The ultimate ambition of the Legislation Bill in relation to access is for the full text of all secondary legislation to be published on the New Zealand Legislation website. The first step towards this goal is identifying all provisions in primary legislation that may empower the making of secondary legislation. In November the PCO completed the first stage of this analysis, having identified more than 5000 empowering provisions that may have legislative effect.

Legal and policy teams across the public service have been reviewing this analysis of the primary legislation their agency administers, using guidance provided by the PCO. We expect this work to be concluded by the end of January.

The PCO is well aware that, for some provisions, it can be difficult to decide whether they empower the making of secondary legislation or purely administrative instruments. Work is continuing on clarifying where the boundary should be drawn.

The next Bill, provisionally called the Secondary Legislation (Access) Bill, will amend each of the identified provisions in primary legislation to expressly state that they empower the making of secondary legislation. This Bill is expected to be introduced later in 2018.

The next step towards full publication is to locate and identify all the secondary legislation that is made under these empowering provisions. To achieve this, the PCO will be encouraging agencies that make secondary legislation to produce a list of all the secondary legislation made by them that is in force. This information will be made available through the NZ Legislation website.

Another key step is an IT solution to enable direct publication of the full text of secondary legislation onto the NZ Legislation website by agencies via a secure portal. To enable this, a Word template has been developed to guide drafters to produce legislation in a consistent style. Text drafted in this template can be easily converted to XML, PDF, and HTML. This will allow publication of the text in multiple formats, as is currently available for legislation on the NZ Legislation website.

Trials of the drafting template by several agencies have brought positive feedback that it is “just fabulous” and is “making life so much easier”. Some instruments drafted using the template have already been made and published online.

Earlier news

  • 20 June 2017: The Legislation Bill is introduced to Parliament.
  • December 2016: Cabinet approved a proposal for the PCO to develop a system to enable secondary legislation drafted by agencies to be published on the New Zealand Legislation website. Cabinet also approves that a Bill be drafted to implement the project. A team of legal researchers are searching for all provisions in legislation that empower instruments to be made that are legislative in nature.

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