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Briefing Notes for the Attorney-General on the Role and Operations of the Parliamentary Counsel Office

8 October 2014

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Executive summary

Background
Current drafting
Investment strategy
Future developments

1   Constitution and functions

1.1   Constitution of the Parliamentary Counsel Office
1.2   Functions
1.3   Funding
1.4   Performance information

2   Organisation

2.1   Organisational structure
2.2   Governance and organisational overview
2.3   Law drafting services
2.4   Access to legislation

3   Relations with external agencies

3.1   Instructing departments
3.2   Legislation Advisory Committee
3.3   Law Commission
3.4   Rules Committee
3.5   Drafting assistance to Pacific Island governments
3.6   Overseas drafting offices
3.7   Commonwealth Association of Legislative Counsel
3.8   Victoria University of Wellington

Appendix: Performance measures for 2014/15

Executive summary

Background

The Parliamentary Counsel Office (PCO) occupies a complex position; it is at once at the heart of executive government but is also closely engaged with Parliament’s law-making function. PCO performs two essential services for executive government: it drafts Government Bills and Legislative Instruments. It also ensures access to NZ statutes by publishing all Acts, Legislative Instruments, and reprinted legislation (legislation that has its amendments incorporated), and provides the mechanism for Parliament to publish, electronically and in hard copy, Bills and Supplementary Order Papers. PCO’s functions and duties are set out in its governing statute, the Legislation Act 2012.

The PCO plays a key role during the passage of a Bill through the House of Representatives and parliamentary counsel work closely with select committees, under the relevant Minister’s direction, and also the directions of the select committee, to produce draft amendments to Bills for consideration at Second Reading. The PCO employs a plain language approach to legislative drafting and has a legislative oversight role to ensure consistency of drafting across the statute book as a whole.

The Chief Parliamentary Counsel (CPC), as with most other heads of legislative drafting offices in Commonwealth jurisdictions, reports to the Attorney-General as the senior law officer, and the PCO occasionally needs to refer to the Attorney-General matters of legal principle that arise during the drafting process. The CPC also enters legislative risks on the GLN risk register and in the regular reports to the Attorney-General. Weekly meetings with the Leader (and Deputy Leader) of the House take place during the parliamentary session to assist in the programming of Government orders in the House.

Current drafting

Following decisions by the previous government in the second half of this year (which required drafting on some matters to continue over the election period), the PCO has received drafting instructions from a number of departments. We are working to the timetable recorded in the relevant Cabinet minute and PCO are working on 56 draft Bills and 83 draft Legislative Instruments.

This is additional to the 41 items on the last Order Paper (Thursday, 31 July 2014), which include 9 Bills that are awaiting their first reading.

Investment strategy

PCO’s ongoing investment in the comprehensive legislation drafting and publishing system, and other support systems is focused on keeping those information technology-dependent systems updated. PCO is also concentrating on efficiency and economy gains as we phase out older systems and take up most of the All of Government IT contracts and other initiatives.

Future developments

Interpretation Act re-enactment

The Legislation Amendment Bill (introduced in 2014) will re-enact in modern form the Interpretation Act 1999 in the Legislation Act 2012. This completes the implementation of the Law Commission’s 2008 recommendation that the main provisions relating to New Zealand legislation and PCO be contained in one statute.

The Bill will also set into legislation Treasury requirements that are currently operating satisfactorily administratively. These require departments to provide legislative disclosure statements when Government Bills are introduced or substantive SOPs are released, and to extend the requirement to disallowable instruments.

The Bill also makes small changes that clarify PCO’s publication functions.

Statute law revision

PCO is required, under the Legislation Act 2012, to improve access to New Zealand’s statutes through the establishment of a rolling three-year programme of statute revision for each Parliament. Revision will modernise and consolidate older or much-amended statutes to make them easier to understand and apply without changing their substantive legal effect. The first revision programme has been developed in consultation with the Attorney-General, government agencies, and the then Opposition Attorney-General, and now needs to be approved by the incoming Cabinet before being presented by you to the 51st Parliament. The former High Court Judge, the Honourable John Priestley CNZM QC, has been appointed to chair the revision Bill certification committee under the 2012 Act.

Pacific Island legislative drafting support

Currently, with the assistance of funding from the New Zealand Aid Programme (NZ Aid), we have been providing a much-welcomed Pacific Island law drafting facility to provide drafting assistance, training, and mentoring to island nations’ legislative drafting officials.

The assistance has been focused on support to the realm of New Zealand (the Cook Islands, Tokelau, and Niue), but has recently been extended to include drafting for UNDP for Fiji and we are examining requests from other Pacific Island nations. We are investigating how best to continue this work, either with the assistance of permanent funding from the Ministry of Foreign Affairs and Trade Aid Programme or from the PCO’s own appropriation. PCO participates in, and contributes to, PILON (Pacific Islands Law Officers’ Network) meetings in relation to legislative drafting as well as drafting and training forums organised by PIFS (Pacific Islands Forum Secretariat) and supported by the Commonwealth Secretariat.

Improving access to New Zealand’s historic statutes

The PCO is currently investigating the size and scope of a possible project to convert the collection of historical Acts enacted from 1841-2007 into a fully-searchable format integrated with, and available on, the New Zealand Legislation (NZL) website[1]. This is the first in a number of additional projects the PCO will investigate as potential investments in further improving access to New Zealand’s current and historic legislation. Consultation with an external group of users of www.legislation.govt.nz is underway to refine these improvements.

Sector contributions - relations with government agencies, the judiciary, and other organisations in New Zealand

The PCO plays a key role in turning instructions from central government departments and associated agencies into draft legislation (Bills and Legislative Instruments) and, accordingly, has extensive links with those agencies’ legal and policy teams.

The PCO also has dealings with other agencies, in particular, those on the Parliamentary Campus (Office of the Clerk, Parliamentary Service, and DPMC), both in terms of shared services and supporting the parliamentary sector’s contribution to strengthening the rule of law and emergency planning and preparedness on the campus. PCO is also involved in other government sectors, supporting the Treasury, Ministry of Business, Innovation, and Employment, and other large regulatory agencies with the better regulation agenda, and with the Law Commission and the Legislation Advisory Committee (LAC), of which the Chief Parliamentary Counsel and Deputy Chief Parliamentary Counsel (DCPC) are members.

PCO has recently invested resources in assisting the LAC with the production of much needed revised and more accessible “Guidelines on Content and Process of Legislation” (last edition 2001 with additions in 2008), which are a key mechanism for improving the quality of draft government legislation presented to Cabinet and the House. Together with the Law Commission, the LAC itself and other interested agencies (DPMC, Treasury, and Ministry of Justice), PCO is working on proposals to further improve the “before-introduction” role of LAC in improving legislative design and regulatory quality.

As part of the PCO’s key function in providing access to legislation, we have developed excellent working relationships with the New Zealand Bar Association, the Auckland District Law Society, and the New Zealand Law Librarians’ Association. Relations with the New Zealand Law Society remain good but more detached.

A significant contribution to the Justice sector is provided by PCO’s standing role in drafting rules of court. We therefore have regular contact, via the Rules Committee, with senior members of the judiciary.

The PCO has developed a programme of inward and outward secondments with key instructing departments (including the Ministry of Business, Innovation, and Employment and the Law Commission) and with UK and Australian drafting offices. The PCO is often visited by staff from overseas drafting offices and provides examples of best practice drafting processes.

Australasian and international contribution

The PCO maintains close links with the 10 Australian drafting offices that, together with the PCO, form the Australasian Parliamentary Counsel’s Committee. That committee has a link into the Council of Australian Governments’ Law, Crime and Community Safety Council, which includes the New Zealand Minister of Justice as a member.

The PCO is a participating member of the Commonwealth Association of Legislative Counsel whose primary object is to promote co-operation across the Commonwealth in supporting legislative drafting and training drafters. The biennial conferences provide the most significant training available to PCO’s parliamentary counsel. The links with both Singapore and Hong Kong legislative drafting and publishing offices are growing.

The PCO also contributes evidence and information to other countries’ parliaments such as the UK Speaker’s Commission on Digital Democracy and the Western Australia’s Legislative Council.

Central agency accountabilities and the Government Legal Network

Although the PCO has a separate statutory basis and is therefore not part of the core public service, many of the central agency initiatives apply to it, including participation in All of Government procurement, the application of the Code of conduct and various oversight and co-ordination operations. In particular, the PCO is currently concluding its first Performance Improvement Framework (PIF) Review (conducted by Patsy Reddy and David Butler as external reviewers) and we anticipate publication of the review and PCO’s response before the end of the year. This will be the subject of a separate briefing to you nearer the time.

PCO has been closely and intensively involved in the development of the Government Legal Network (the CPC was an original member of the governance and steering committee during the development phase and PCO has been a significant funder of the initiative during the voluntary club-funding early years). The CPC and DCPC have access to the GLN Risk Register and have used this to highlight Bills which carry legal risks for various reasons. The PCO also contributes significantly to the GLN training and development activities.

David Noble

Chief Parliamentary Counsel
and Chief Executive of PCO

1   Constitution and functions

1.1   Constitution of the Parliamentary Counsel Office

The PCO is constituted as a separate statutory office under the Legislation Act 2012 (the 2012 Act).

The PCO is under the control of the Attorney-General, and the Attorney-General has important public interest functions that the PCO supports. If there is no Attorney-General, the PCO is under the Prime Minister’s control. The reason for providing for the Prime Minister to have control of the PCO was to avoid the effect of the powers of the Attorney-General being exercisable by the Solicitor-General if the office of Attorney-General becomes vacant.

Under the 2012 Act, the functions of the PCO are to:

  • draft Government Bills and Legislative Instruments (including amendments to them)
  • publish (in electronic and printed form) Bills, Acts, and Legislative Instruments
  • prepare reprints of Acts and Legislative Instruments
  • prepare Bills to revise Acts in accordance with the current revision programme
  • advise departments and agencies on the drafting of disallowable instruments that are not drafted by the PCO
  • advise on and assist with the drafting of all Local and Private Bills, and draft Members’ Bills on the Attorney-General’s direction.

The PCO is also required, if directed by the Attorney-General, to perform any other functions relating to the drafting and publication of legislation.

From time to time, the PCO also drafts certain other instruments such as Orders in Council establishing commissions of inquiry, instruments made under the Royal prerogative, and other official documents.

The PCO is not part of the Public Service under the State Sector Act 1988, and thus is not under the direct control of the State Services Commissioner. However, the PCO is subject to certain provisions of the State Sector Act 1988, including those that relate to the setting and enforcement of minimum standards of integrity and conduct.   

Under the Legislation Act 2012:

  • the PCO is required to publish legislation electronically and continues to publish in printed form
  • the PCO is able to issue official versions of legislation in electronic and printed form (being versions that are presumed to be correct)
  • the PCO’s reprinting powers have been enhanced to enable the PCO to correct obvious errors and (if authorised by Order in Council for the purpose) to renumber specified legislation
  • a 3-yearly programme of systematic revision of Acts has been established
  • the rules providing for the disallowance of subordinate legislation have been carried forward, modernised, and improved, and existing Acts have been consequentially amended to specify whether particular subordinate legislation is disallowable
  • standard provisions (based on those already in use in specific statutes) have been enacted containing powers and processes to enable certain kinds of subordinate legislation to incorporate material by reference
  • earlier outdated statutory provisions, particularly those relating to the appointment of parliamentary counsel and the organisational structure of the PCO, have been modernised.

The 2012 Act implemented the majority of the legislative recommendations in the Law Commission reports:

  • Presentation of New Zealand Statute Law, 2008 (NZLC R104):
  • Review of the Statutes Drafting and Compilation Act 1920, 2009 (NZLC R107).

1.2   Functions

The Statement of Intent for the PCO for 2013/18 states that the goal of the PCO is to contribute to parliamentary democracy under the rule of law.[2] The PCO seeks to achieve this outcome in two ways. The first way is by ensuring that the legislation that it drafts, that Parliament enacts, and that the Executive makes in the exercise of delegated law-making powers, is effective, clear, and consistent with other legislation, the general law, and international law. The second way is by making legislation available to the public. This is reflected in the two principal functions of the PCO. These functions are the drafting of legislation and the publication of legislation.

Drafting Government Bills and Legislative and Other Instruments

The PCO drafts Government Bills and Legislative Instruments. Bill drafting includes preparing amendments required by select committees and by Ministers at the committee of the whole House stage. The PCO also drafts other instruments, such as appointments under, and terms of reference for, public inquiries under the Inquiries Act 2013, regulations under the Royal prerogative relating to medals and honours, the exercise of the Governor-General’s powers under section 406 of the Crimes Act 1961 (which relates to applications for the exercise of the prerogative of mercy), and certain constitutional documents.

Drafting Local and Private Bills

The PCO examines and reports on Local Bills and Private Bills. This involves providing drafting assistance to local authorities and their legal advisers in the case of Local Bills, and to the promoters and their legal advisers in the case of Private Bills. In most cases, this involves providing drafts or redrafts of Bills.

Drafting Members’ Bills

At the direction of the Attorney-General, the PCO provides drafting assistance for Members’ Bills. The practice of the Attorneys-General is to direct the PCO to provide drafting assistance for a Member’s Bill if it is reasonably clear that there is likely to be sufficient support in the House for the Bill to pass. The Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 is a recent example of a Member’s Bill that, with the approval of the Attorney-General, had drafting input from the PCO. The PCO can expect to receive directions to assist with the drafting of about five Members’ Bills a year.

Publishing legislation

The second function of the PCO is to make legislation available to the public. Under the 2012 Act, the Chief Parliamentary Counsel is responsible for the publication of:

  • Acts of Parliament
  • Legislative Instruments
  • reprints of Acts and Legislative Instruments (with their amendments incorporated).

The PCO publishes copies of Acts and Legislative Instruments in pamphlet form. Acts are generally published and provided for sale at designated bookshops and to subscribers within 10 working days of assent, and Legislative Instruments are published and provided for sale at designated bookshops and to subscribers within five working days of being made. Acts are available on the New Zealand Legislation website within five working days of assent and Legislative Instruments are available on the website within one day of the date they are notified in the New Zealand Gazette. Any enactments not yet in force are indicated as such on the website.

The PCO also makes copies of Government Bills and Supplementary Order Papers available to the House and for sale at certain bookshops for purchase by the public.

Publication of supporting documents

Since August 2013, PCO has (as part of an administrative trial) published the new departmental legislative disclosure statements about the development and content of Government Bills and substantive SOPs to assist the public and parliamentary scrutiny of legislation. The statements are published by the PCO to a separate website at http://disclosure.legislation.govt.nz.

1.3   Funding

The PCO is funded by annual appropriation. The Attorney-General is the responsible Minister for Vote: Parliamentary Counsel.

Output expenses

In relation to the 2014/15 financial year, Vote: Parliamentary Counsel has a multi-category appropriation, which comprises two categories that directly reflect the statutory functions of the PCO. These are listed below, together with the appropriation (GST exclusive) for the 2014/15 financial year for the two categories:

Category—Law Drafting Services
2014/15 appropriation $10.674 million (51.8 % of the Vote)

Category—Access to Legislation
2014/15 appropriation $9.931 million (48.2 % of the Vote).

1.4   Performance information

A copy of the PCO’s performance information, which includes specific performance measures and standards for the 2014/15 year, is attached as an Appendix.

 

2   Organisation

2.1   Organisational structure

The organisational structure of the PCO is set out at page 59 of the PCO Annual Report for the year ending 30 June 2014.

2.2   Governance and organisational overview

In managing the PCO, the Chief Parliamentary Counsel is assisted by a senior management team comprising a Deputy Chief Parliamentary Counsel (DCPC), a Chief Information Officer, and a Corporate Services Manager. This team meets fortnightly and is responsible for setting the strategic direction of the organisation. It deals with matters relating to resourcing, annual budgets, staff appointments, significant operating and personnel issues, the development of policies and practices, risk management, accommodation, and the management of the PCO’s finances and expenditure.

The drafting of legislation is undertaken by parliamentary counsel and associate parliamentary counsel. There are currently 33.9 full-time equivalent (FTE) counsel, including 3 fixed-term counsel, grouped into four drafting teams. Each team is responsible for the legislation of a group of government departments and public sector organisations (Commercial, Infrastructure, Justice and Social, and Resources and Treaty). Each is led by a manager who is responsible to the DCPC for allocating drafting instructions, monitoring workflows, liaising with instructing departments, and staff supervision and review. The drafting teams meet regularly to manage the drafting work load and the PCO operates a drafting forum for consideration of legislative drafting issues.

A Legislation Services team, which reports to the Chief Information Officer, provides part of a quality assurance service by proofreading draft legislation.

Two other managers are responsible to the Chief Information Officer – for the Publications Unit (which provides compilation and publication services for legislation) and for the Information Systems Unit (which provides IT and records management services for the PCO and is responsible for the provision and support of the legislation drafting and publishing system and the website).

The Corporate Services Manager has responsibility for corporate support services, including library, communications, human resources, finance functions, and providing administrative support to the parliamentary counsel.

A small Revision Policy team provides direct support to the Chief Parliamentary Counsel in relation to the revision programme and the exercise of other powers under the 2012 Act.

Key relationships

The PCO has key relationships with a number of other organisations. The PCO:

  • receives a range of services from the Parliamentary Service including accounting and financial reporting services, payroll, and access to the parliamentary core computing network. Service level agreements are in place to manage the provision of these services
  • works closely with the Office of the Clerk of the House of Representatives (OoC) and has developed a Memorandum of Understanding with that office, which, in particular, regulates the access to and use of the legislation drafting and publishing system. The PCO helps the OoC, by co-ordinating and managing a joint printing contract and by other measures such as the printing of their non-legislative documents (eg, the order paper during urgency)
  • provides access to the legislation system for the drafting unit in the Inland Revenue Department, which is responsible under current arrangements for the drafting of primary tax legislation
  • assists the Leader of the House (the CPC and DCPC meet weekly with the Leader of the House when the House is sitting)
  • works closely with the Legislation Co-ordinator in the Cabinet Office, whose role is to provide support to the Government of the day in developing, monitoring, and modifying the legislative programme, and with the Secretary of the Cabinet Legislation Committee
  • has extensive working relationships with all central government departments and agencies in terms of taking instructions from them for the drafting of new and amending legislation and providing links and electronic “feeds” from the Legislation website
  • fulfils its obligation to publish New Zealand legislation through a contract with Printlink for the printing, distribution, and sale of legislation
  • is audited by the Auditor-General. The Auditor-General has appointed Audit New Zealand to perform the audit of the PCO on her behalf. There is an Audit and Risk Committee (which includes two externally appointed members and is attended by a representative of the Auditor-General) that meets several times a year to assist the office in assessing risk.
Risk management

PCO’s Audit and Risk Committee provides independent advice and assurance to the Chief Parliamentary Counsel on the PCO’s systems of governance and internal control, risk management and compliance, and external accountability responsibilities.

The PCO keeps a risk register that is reviewed throughout the year (and the major risks are also reviewed by PCO’s Audit and Risk Committee). Its purpose is to assist the mitigation of the PCO’s major risks and manage the achievement of its outputs and deliverables.

The PCO, with its legislative overview role, identifies to responsible departments its concerns about legislation that is inaccessible through heavy amendment (eg, the Social Security Act 1964 – now being reviewed, and the Resource Management Act) or otherwise not fit-for-purpose in the current circumstances (eg, public health). The CPC also raises concerns with chief executives about the risks to quality arising from the pace at which policy and legislation is developed, often in tandem, and the absence of post-implementation reviews of enacted legislation.

2.3   Law drafting services

Introduction

The PCO is the central legislative drafting office. The Inland Revenue Department is responsible for drafting certain revenue Bills that will become Acts administered by that department.[3] With the exception of those revenue Bills, the PCO drafts all Government Bills and all subordinate legislation that is published in the Legislative Instruments series. The PCO also drafts amendments to Private and Local Bills.

A total complement of 37 parliamentary counsel (approximately 33.9 FTEs) are currently engaged to draft legislation as members of one of four drafting teams. This complement of staff is necessary if the PCO is to deliver the level of legislative drafting services provided over the term of the previous Parliament.

Significant features of our legislative drafting environment include:

  • the process of ensuring that Bills are consistent with fundamental legal principles, the New Zealand Bill of Rights Act 1990,  other important statutes, the Treaty of Waitangi, and New Zealand’s international obligations
  • taking account of existing legislation and the common law
  • the activities of the Legislation Advisory Committee
  • variation in the quality of official policy documents underpinning legislation
  • variation in the quality of instructions given to the PCO by departments
  • time spent by parliamentary counsel developing and clarifying legal policy and other preparatory work normally done by departments
  • Bills being extensively revised by select committees and sometimes at the committee of the whole House stage
  • the speed at which Bills can proceed through the House, resulting in less time for checking and correcting errors
  • restrictive rules governing omnibus Bills, making routine error correction difficult for the Executive
  • rules about debating Bills in Parts, which can have an adverse effect on the proper structure of Bills leading to artificial divisions and sub-divisions of material.

In essence, legislative drafting involves translating policy decisions into effective, principled, and clear law. This work is not carried out in a vacuum and parliamentary counsel must keep up to date not only with changes in the law generally, but also with judicial trends in the interpretation of legislation.

Policy decisions are often high-level ones and implementing them in legislation can result in the design of a legislative scheme that can be complex and may involve a number of levels (primary—Acts, secondary—Legislative Instruments, and tertiary—directions, rules, or standards). The PCO and other departments, in response to a number of reviews and reports (including the Whey Protein Inquiry by Miriam Dean QC, the Productivity Commission Report on Regulatory Institutions and Practices, and various Regulations Review Committee reports) is developing improvements to the legislative design process to tackle the issues relating to legislation identified in those reviews.

The Government’s legislation programme

Bills are drafted in accordance with the priorities that they have on the legislation programme. The procedure for developing the legislation programme each year has involved the Legislation Co-ordinator in the Cabinet Office sending a circular to all government departments inviting them to submit bids for Bills for inclusion in the programme. Responses are sought by about mid-January. The proposed programme for the year is referred to the Cabinet Legislation Committee and then to Cabinet for approval.

The 2015 legislation programme will contain six categories of Bills:

Category 1: Bills that must be passed or introduced as a matter of law in 2015
Category 2: Bills that must be passed in 2015
Category 3: Bills to be passed if possible in 2015
Category 4: Bills to be passed under extended sitting hours
Category 5: Bills to be referred to a select committee in 2015
Category 6: Bills for which instructions to the PCO will be provided in 2015.

Drafting Bills

The PCO has operated on the assumption that it will, in any year, be required by the Government to draft between 50 and 70 new Bills. It expects also to examine and draft amendments to up to eight Local and Private Bills each year. The number of Bills and Legislative Instruments is difficult to predict with any accuracy. The drafting of legislation is demand-driven and the PCO is a responsive organisation.

The proper process for drafting of a Bill begins once the Bill has been included in the legislation programme, policy decisions have been made, and drafting instructions have been given to the PCO. All Bills are drafted in accordance with the priorities assigned to them by Cabinet in the legislative programme for each year. The legislation programme enables the PCO to devote resources to the drafting of Bills according to their importance to the Government as reflected in that programme.

The parliamentary counsel will initially produce a first draft. Typically, this will involve discussions with the instructing department as the drafting proceeds to clarify issues, refine policy, provide for matters that have not been addressed, deal with changes in policy, and to suggest possible alternative approaches. Legislation is drafted in the context of existing legislation, case law, international law, key statutes such as the New Zealand Bill of Rights Act 1990, and the Treaty of Waitangi.

Once a draft Bill has been settled with the instructing department, it will be sent for comment to other departments with an interest in the subject matter. Their points and objections have to be considered and dealt with. Many draft Bills, especially those in the financial sector and those attached to Law Commission reports, are released for public consultation.

The drafting of Bills and Legislative Instruments generally involves substantial and continuous revision. It is highly iterative. With large and complex Bills, the drafting process may take months and numerous versions may be produced.

When drafting is completed, the Bill is referred to the Ministry of Justice (or the Crown Law Office if it is a Justice Bill), for advice on compliance with the New Zealand Bill of Rights Act 1990, and subsequently to the Cabinet Legislation Committee, and then on to Cabinet for approval.

Over the last 10 years or more this “proper process” has increasingly been strained to accommodate drafting commencing when policy approvals are still being obtained and by compression of the timetable for drafting (either because of delays earlier in the process – policy formulation, consultation stages in departments – or because of predetermined dates for announcements).

A significant additional drafting demand over recent years has been the drafting of Treaty claim settlement bills which are usually drafted in tandem with deed drafting. These Bills not only contain novel and unique legislative provisions but also utilise certain key standard clauses in part and develop at variable speeds dependent upon the pace of negotiations towards a settlement. The PCO works closely with the Office of Treaty Settlements (in MOJ) and the relevant PCO drafting manager is a member of the OTS Governance Board, which focuses on the overall delivery of the Treaty settlement work programme. To further facilitate the progress of these Bills, a senior OTS staff member is located at PCO to assist with the drafting. Extended sitting days of the House have also meant that the Bills have been dealt with expeditiously by Parliament.

Parliamentary counsel attend all meetings of select committees when consideration is given to amendments to Bills and draft the amendments required by those committees. Parliamentary counsel will, if time permits, usually attend other meetings of select committees to hear from those invited to submit evidence. As with the drafting of a Bill, the drafting of amendments to Bills frequently involves a number of revisions before amendments are finalised. They are incorporated in a “revision-tracked” version of the Bill showing the proposed amendments in a single document.

Parliamentary counsel always attend the consideration of a Bill at the committee of the whole House stage, draft amendments required by the Minister, and provide advice on drafting issues that arise during the committee stages. Parliamentary counsel will draft the opposition party amendments that the Government wishes to adopt.

Parliamentary counsel check the “as reported” copies of Bills to ensure that all amendments recommended by the select committee have been incorporated. Parliamentary counsel also provide advice on the commentaries that accompany “as reported” versions of Bills. The Office of the Clerk is responsible for preparing proof assent copies of Acts. Parliamentary counsel also check the proof assent copy of each Bill to ensure the Bill submitted to the Governor-General for assent incorporates all amendments made to it during the select committee and the committee of the whole House stages, and that section numbering and internal cross-references are correct. This is an important but time-consuming task.

Drafting Legislative Instruments

The PCO operates on the assumption that it will draft between 300 and 400 Legislative Instruments a year. Consequently, about 40% of the drafting resources of the PCO at any time is committed to the drafting of Legislative Instruments. This continues even when Parliament is not sitting.

Legislative Instruments vary in size and complexity. Issues relating to the powers in the empowering Act often arise during the drafting of Legislative Instruments and other delegated legislation and parliamentary counsel advise on these issues in the course of their drafting work.

Legislative Instruments and other delegated legislation are sometimes dismissed as unimportant by commentators. That is wrong. Secondary or delegated legislation is a critical and growing component of most Westminster-style democracies and often has the most direct impact on the citizen, whether individual or corporate. The consequences and costs of poorly-drafted delegated legislation can be just as significant as for Acts of Parliament. For these reasons, the same degree of skill and care is required to draft secondary legislation as for primary legislation.

There is no annual legislation programme for Legislative Instruments, but PCO and Cabinet Office are seeking to improve the management of instructions for those instruments arising from the passing of a new or amended empowering Acts.

The drafting of Legislative Instruments requires the authority of a Minister. Policy decisions underlying proposed Legislative Instruments have to be obtained from the relevant Cabinet committee and from Cabinet before drafting can proceed. However, if the Legislative Instruments are merely routine, they can be drafted on the instructions of the responsible Minister without the need to get Cabinet committee and Cabinet approval.

The drafting process for Legislative Instruments is much the same as for Bills. The Cabinet Office Manual requires that all Legislative Instruments submitted to Cabinet be certified by a parliamentary counsel as being in order for submission to Cabinet. This means that the parliamentary counsel must be satisfied that the Legislative Instruments may lawfully be made and that there are no grounds on which the Regulations Review Committee might draw them to the attention of the House and the risk of disallowance under the 2012 Act.

In cases where it is not possible to provide an unqualified certificate, advice is given to the Attorney-General setting out the reasons for the qualification. A copy of the advice is sent to the Minister responsible for the instrument. The Crown Law Office may also be asked to advise on the Crown litigation risks arising from the issue.

All Legislative Instruments are referred to the Cabinet Legislation Committee for consideration before they are submitted to Cabinet for reference to the Executive Council.

Plain language drafting

It has been the PCO policy since 1999 to draft legislation in a plain language style. It is generally accepted that persons affected by legislation need to understand their rights and obligations under it. However, a parliamentary counsel’s ability to use plain language in drafting is constrained in practice by external factors such as:

  • policy or drafting changes needed to gain political support in an MMP environment
  • drafting specialist legislation (such as rules of court and customs tariffs) where technical language is unavoidable
  • drafting Treaty settlement legislation, the terms of which are negotiated between the Crown and the claimants
  • the pressure of time available for drafting.

The PCO will be reviewing and strengthening its commitment to plain language drafting during the course of the 51st Parliament in the light of the revision programme and other initiatives.

Tax Bills

Under the Inland Revenue Department (Drafting) Order 1995, all Revenue Bills are currently drafted in the Inland Revenue Department Tax Drafting Unit. The PCO, however, still drafts amendments to the Student Loan Scheme Act 1992 and the Child Support Act 1991. The PCO also drafts parts of revenue Bills that will not become Acts administered by the Inland Revenue Department.

Revision Bill programme

Part 2 of the Legislation Act 2012 added a new function to the PCO’s responsibilities, which requires the PCO to revise selected New Zealand Acts to make them more accessible. The Attorney-General is responsible for preparing, and consulting publicly on, a three-year revision programme for each new Parliament. The PCO has developed the first of the revision programmes (awaiting Cabinet approval) in preparation for the 51st Parliament, and former High Court Judge the Honourable John Priestley CNZM QC has been appointed as the chairperson of a committee of revision certifiers. The PCO has worked with the Standing Orders Committee to streamline, a little, the process for the parliamentary examination of Revision Bills.

2.4   Access to legislation

New Zealand Legislation System (NZLS)

The PCO has an integrated XML-based drafting and publishing system, which provides public access to up-to-date official legislation, in both printed and electronic form. The Legislation website provides free access to Bills, Acts, Legislative and certain Other Instruments, and Supplementary Order Papers. The website also provides links to Other Instruments that are published separately by agencies.

The New Zealand Legislation System is the core part of the PCO’s day-to-day business activity, being used for both the drafting and publishing of legislation. It is supported and maintained in-house by PCO’s Information Services team. Approved providers are engaged to provide specialist skills in areas such as code verification and XSL-FO print style-sheets.

Publishing legislation

The PCO’s Publications Unit (PU) has responsibility for all publication functions, both website-based and hard copy printed format (provided by a commercial printer).

The PCO therefore publishes:

  • Bills, Supplementary Order Papers, and Revision-tracked versions
  • supporting documents relating to Bills and SOPs, such as the departmental legislative disclosure statements
  • incorporated amendments to legislation as at the date of the amendment ensuring the published legislation is printed and then available for sale at specified retailers and via online purchasing.

The PU supports the publishing requirements of the PCO, Office of the Clerk, IRD, and other government agencies and departments. To ensure that the publishing requirements of the House are met (on behalf of the Office of the Clerk), the PU staff are also required to cover the parliamentary sitting hours when the House is sitting.

Reprinting legislation

The Publications Unit is further responsible for the reprinting of legislation. A reprint simply republishes a particular enactment with all its amendments incorporated, but the enactment is not re-enacted by Parliament. Reprints published by the PCO have official status under the Legislation Act 2012 as authoritative statements of the law.

With the greater availability of legislation in electronic form, people are increasingly obtaining legislation online and the demand for printed copies of reprints has dropped. The NZL website was declared an official source of legislation on 6 January 2014 under section 17 of the Legislation Act 2012. PCO ceased publication of hard copy reprinted legislation at the end of the 2013/14 financial year. A link to a publishing service is now provided for those who wish to purchase hard copies online.

The PCO has provided a number of information and training sessions to Judges and staff of the Supreme Court, Court of Appeal, and the High Court on how to best use the NZL website and the now official database.

3   Relations with external agencies

3.1   Instructing departments

The PCO works closely with instructing departments and agencies to improve the quality of draft legislation. Drafting legislation is a team effort and the role of departmental officials is critical to the success of the drafting process. Departmental officials are provided with copies of the PCO’s Guide to Working with the Parliamentary Counsel Office to assist when instructing parliamentary counsel to draft legislation. This guide aims to help departments to work effectively with the PCO, particularly when giving instructions and responding to drafts. PCO staff also provide seminars and other assistance to departments.

Parliamentary counsel provide advice to departments:

  • in the course of the development of policy for legislation
  • in the pre-instruction phase
  • during the drafting stage
  • at other times when required.

The subject matter of advice given by parliamentary counsel varies enormously. The context in which advice is sought is generally a specific piece of existing legislation or proposed legislation, but may include questions of drafting practice, the application of the LAC Guidelines, general legal principles, Cabinet procedure, parliamentary procedure, the effect of court decisions, and statutory interpretation.

3.2   Legislation Advisory Committee

The CPC and DCPC are members of the Legislation Advisory Committee (LAC), a committee established by the Minister of Justice in 1986 but which now reports to you.

LAC members are appointed by the Attorney-General. The LAC advises the Government on good legislative practice, scrutinises the legislative work of the Government, and makes submissions to select committee where the LAC considers it appropriate. The PCO assists the LAC to achieve its outcomes and has been assisting with resources and contributions from PCO staff to the rewriting and revising of the LAC Guidelines (2001 edition) and with the establishment of a new, public, LAC website.

3.3   Law Commission

The PCO continues to maintain a very constructive relationship with the Law Commission and is currently assisting with rewrites of the Crown Proceedings Act 1950, the Extradition Act 1999, and the Mutual Assistance in Criminal Matters Act 1992.

3.4   Rules Committee

The PCO assists the (Judicial) Rules Committee with rules of practice and procedure. Rules for the Supreme Court, Court of Appeal, High Court, and District Courts are made by the Governor-General by Order in Council with the concurrence of members of the Rules Committee.

The Rules Committee is a statutory committee established under section 51B of the Judicature Act 1908. The Attorney-General is a member of the Committee ex officio. The other members are the Chief Justice, the Chief High Court Judge, two High Court Judges, the Chief District Court Judge, two District Court Judges, the Solicitor-General, the Secretary for Justice, and two practitioners. The Committee chairperson is the Hon Justice Asher, a High Court Judge based in Auckland.

The PCO provides legislative drafting assistance to the Rules Committee. An experienced parliamentary counsel attends its meetings on behalf of the Chief Parliamentary Counsel and drafting work is carried out by one or more counsel, as necessary. This work can impose significant demands on the PCO’s drafting resources and can be technically difficult compared with other subordinate legislation.

3.5   Drafting assistance to Pacific Island governments

In 2011, the PCO established a Pacific Island desk to provide legislative drafting assistance to Pacific Island nations. The desk is funded by the Ministry of Foreign Affairs and Trade's New Zealand Aid Programme. It is not clear how the desk will be funded after this funding ends in March 2015.

The assistance is primarily focused on the Cook Islands, Niue, and Tokelau, each being nations within the Realm of New Zealand. Assistance is extended to other Pacific Island nations if resources permit.

The assistance provided includes drafting and reviewing legislation for nations to increase the quality and capacity of their legislative drafting, as well as training and mentoring of Pacific Island officials. The PCO provides one full-time Parliamentary Counsel for these purposes. The position is rotated via annual secondments to the desk, which is New Zealand-based but involves travel to relevant Pacific Islands as required.

The PCO's Pacific Island desk has also prepared Guides to Preparing Instructions for the Drafting of Legislation, Legislative Drafting Directives, and electronic drafting templates for Bills and for regulations for the Cook Islands and for Niue.

The PCO proactively engages with other legislative drafting assistance providers around the world, and forums and agencies across the Pacific, to co-ordinate the work that is being done in the Pacific. This includes the Pacific Islands Forum Secretariat, the Pacific Islands Law Officers’ Network, the Commonwealth Secretariat, and various divisions of the Australian Attorney-General’s Department.

3.6   Overseas drafting offices

Australia

The Australian Parliamentary Counsel’s Committee (APC’s Committee) is a committee of the heads of the 10 Commonwealth, State, and Territory drafting offices in Australia. It meets on a regular basis to deal principally with issues relating to uniform legislation in Australia. The PCC’s Committee invites the Chief Parliamentary Counsel to its meetings and sends papers and copies of draft legislation it considers to the PCO. The Chief Parliamentary Counsel tries to attend at least one meeting a year. The PCO has excellent relations with the Australian drafting offices. There is a high level of co-operation with them and a significant amount of information is exchanged.

The APC’s Committee holds an annual Information Technology Forum for the IT personnel in the Australian and New Zealand drafting offices. It provides an opportunity to discuss developments in the technology supporting drafting offices. Staff responsible for the PCO’s IT systems and staff who are involved with the New Zealand Legislation System attend these IT forums. Government-owned databases of up-to-date legislation to which the public has access have been available in Australia for many years. PCO staff attended an IT Forum meeting in Tasmania in 2014.

The Australian and New Zealand drafting offices now hold regular conferences for legislative drafters as part of their continuing professional development. The 2014 conference was held in Perth.

Staff secondments and exchanges

One parliamentary counsel is seconded to the Ministry of Business, Innovation and Employment to provide support to the development of secondary legislation governing financial markets.

The purposes of PCO secondments are to:

  • provide departmental policy and legal staff with assistance in developing new capabilities as instructors
  • provide parliamentary counsel with experience in working inside government departments to gain a better understanding of the environment their instructors are working in
  • provide assistance to the Government as a whole in developing better and smoother policy-making processes.

3.7   Commonwealth Association of Legislative Counsel

The Commonwealth Association of Legislative Counsel (CALC) , and accredited Commonwealth organisation has a membership of over 400 legislative drafters from Commonwealth countries, including Africa, the Caribbean, the United Kingdom, Canada, India, Asia, and the Pacific (Australia, Pacific Islands, and New Zealand). CALC has a governing Council. The PCO has always had a significant leadership role in CALC, previous and the current CPC having been Council members and currently the DCPC is the CALC Secretary.

Other than the Australian PCC, CALC organises the only other professional development conference for legislative drafters that PCO attends. This usually takes place every two years in conjunction with the Commonwealth Law Conference. Counsel attended the last CALC conference, held in South Africa in April 2013, presenting papers and chairing conference sessions, and the PCO will be represented at the next conference to be held in Scotland in April 2015.

3.8   Victoria University of Wellington

Through the provision of parliamentary counsel to teach, the PCO supports the Legislation (Laws 323) course at Victoria University of Wellington. This is an optional subject for the degree of LLB taken by up to 85 third- and fourth-year students. The next reiteration of the course is scheduled for July 2015.

The PCO, together with the Office of the Clerk, co-finances work by a research student in developing and updating the Regulations Review Digest, an invaluable source of guidance and determinations from the Regulations Review Committee of the House of Representatives. This work is conducted under the supervision of a member of the Faculty of Laws at Victoria, parliamentary counsel, and the Clerk Assistant (legal services).

Appendix: Performance measures for 2014/15

These are the measures that we will use in the financial year 1 July 2014 to 30 June 2015 to assess our performance.

Performance measuresBudgeted standard
Category: Access to Legislation

This category is intended to achieve that New Zealand Bills, Acts, and legislative instruments are readily accessible to the public in a timely manner and in an accurate and authoritative form.

Performance in the Access to Legislation category will be assessed as follows:

Free public access to the New Zealand Legislation (NZL) website is available 24 hours a day, seven days a week 99%
Drafting tool availability for Office of the Clerk and Inland Revenue Department staff. A 100% budget standard is not appropriate as system outages are required for planned upgrades 92%
Public enquiries are responded to within one working day 90%
Public enquiries are responded to within five working days 100%
Amendments will be consolidated within 15 working days of the date of effect of the amendment 100%
The number of Government Bills supplied to the House and published in the calendar year. As this output is demand driven, quantities will vary from year to year 50-70
The number of Supplementary Order Papers (SOPs) supplied to the House and published in the calendar year. As this output is demand driven, quantities will vary from year to year 70-100
The number of Acts of Parliament published in the calendar year. As this output is demand driven, quantities will vary from year to year 80-120
The number of Legislative Instruments published in the calendar year. As this output is demand driven, quantities will vary from year to year 300-400
Legislation is published in printed and electronic forms within the following timeframes:
  • within one working day the following will be available on the NZL website:
    • all new Government Bills introduced into the House
    • after the printed version is made available to the House, all subsequent versions of Bills
    • after they have been circulated to Members of Parliament, all SOPs
    • after they are notified in the New Zealand Gazette, all Legislative Instruments
  • within five working days:
    • of introduction or release, all Government Bills and SOPs are published and provided for sale at designated bookshops and to subscribers
    • of assent, all Acts are available on the NZL website
    • of being made, all Statutory Regulations are published and provided for sale at designated bookshops and to subscribers
  • within ten working days:
    • of assent, all Acts are published and provided for sale at designated bookshops and to subscribers
100%
The Attorney-General is satisfied that the quality standard has been achieved.
The quality standard is that:
  • the electronic database of Acts (both as enacted and with their amendments incorporated), Legislative Instruments (both as made and with their amendments incorporated), Bills, and SOPs is up to date
  • Bills, SOPs, Acts of Parliament, and Legislative Instruments are published to the standard required by parliament
The Attorney-General is satisfied
Category: Law Drafting Services

This category is intended to provide high quality legislative drafting services and advice in a professional, impartial, and responsive manner in delivering the Government's legislation programme.

Performance in the Law Drafting Services category will be assessed as follows:

All Bills on the annual legislative programme in categories 1 and 2 (both of which are Bills that must be passed in the current calendar year) are drafted. As this output is demand driven, quantities will vary from year to year 100%
Government Bills drafted and amended in the calendar year. As this output is demand driven, quantities will vary from year to year 50-70
Legislative Instruments drafted in the calendar year. As this output is demand driven, quantities will vary from year to year 300-400
The Attorney-General is satisfied that the following quality and timeliness standards have been achieved.
The quality standard is that:
  • Bills and Legislative Instruments are legally effective, clear, consistent with other legislation, the general law, and international law
  • Bills and Legislative Instruments are consistent with the policy they implement, legal principle, the New Zealand Bill of Rights Act 1990, and the Human Rights Act 1993
  • advice given on matters relating to the provision of legislative drafting services, including advice on legislative drafting, parliamentary procedure, executive government process, and the law, is sound, practical, and clear
The timeliness standard is:
  • Bills, Legislative Instruments, and SOPs are drafted in accordance with time frames set by, or agreed with, the Government, select committees, instructing departments, and agencies
The Attorney-General is satisfied
The proportion of instructing departments and agencies we survey that rate the quality and timeliness standards
as four or better on a scale of one to five, with one being very dissatisfied and five being very satisfied.
The quality standard is that:
  • the legislation produced is drafted as clearly and simply as possible
  • the legislation produced is legally effective
  • the instructing agency is satisfied with the final product
  • advice on legislative drafting matters is provided in a professional, impartial, and responsive manner
The timeliness standard is that:
  • drafts of legislation are produced within agreed deadlines
90%
Select committees are satisfied that the quality and timeliness standards have been achieved as determined by survey responses from relevant select committees.
The quality standard is that:
  • advice given on matters relating to the provision of legislative drafting services, including explaining the changes made by the revision tracked version of a Bill, is objective, accurate, and sufficient

The timeliness standard is that:

  • revision tracked documents are provided for the select committee in accordance with deadlines set by or negotiated with the committee
Select committees are satisfied
Pacific Island instructors are satisfied that the quality and timeliness standards have been achieved as determined by survey responses from relevant Pacific Island instructors.
The quality standard is that:
  • advice given on matters relating to the provision of legislative drafting services is objective, accurate, and sufficient

The timeliness standard is that:

  • legislation is provided to Pacific Island instructors in accordance with agreed deadlines
Pacific Island instructors are satisfied
Proportion of Bills drafted by the PCO and introduced that are peer reviewed.
The quality standard for peer reviewing is that:
  • Bills drafted by the PCO are reviewed for their legal effectiveness, workability, compliance, structure, and readability. These Bills are reviewed once prior to introduction and a second review takes place before committee stages
80%
Proportion of Legislative Instruments drafted by the PCO and submitted to Cabinet that are peer reviewed.
The quality standard for peer reviewing is that:
  • Legislative Instruments drafted by the PCO are reviewed once before being submitted to Cabinet for their legal effectiveness, workability, compliance, structure, and readability
80%

The performance measures and standards for peer reviewing exclude Bills drafted by the Pacific Island desk and local, private, and Members' Bills.
There are also some instances when peer review of Legislative Instruments is not required. These include:

  • single date commencement orders (if not revoking a commencement order and replacing it with a new commencement order)
  • levies and fees if the change relates to figures only
  • ministerial notices that are pro forma (no choice regarding wording)
  • takeovers exemption notices unless a class notice.
Proportion of all introduced Bills drafted by the PCO that are proofread.
The quality standard is that:
  • Bills drafted by the PCO are read in full at least twice by Editorial Services to detect errors before introduction
97%
Proportion of Legislative Instruments drafted by the PCO that are proofread.
The quality standard is that:
  • before Legislative Instruments drafted by the PCO are made, they are read in full at least once by Editorial Services to detect errors
97%
The performance measures and standards for proofreading exclude Bills drafted by the Pacific Island desk.
In regards to the three-yearly revision programme, the Attorney-General is satisfied that the following quality and timeliness standards have been achieved.
The quality standard is that:
  • all certified revision Bills and their accompanying certificates have been provided to the Attorney-General in accordance with section 33 of the Legislation Act 2012
The timeliness standard is:
  • legislation, as outlined in the agreed three-yearly revision programme, is drafted within agreed time frames
The Attorney-General is satisfied
In regards to the three-yearly revision programme, relevant instructing departments and agencies are satisfied that the following quality and timeliness standards have been achieved.
The quality standards for the three-yearly revision programme are that:
  • the legislation produced is drafted as clearly and simply as possible
  • the legislation produced is legally effective
The timeliness standard is:
  • legislation, as outlined in the agreed three-yearly revision programme, is drafted within agreed time frames
Instructing departments and agencies are satisfied

 


[1]www.legislation.govt.nz

[2] See Statement of Intent for the period 1 July 2013 to 30 June 2018 (p9). The Australian Commonwealth Office of Parliamentary Counsel has a similar objective: parliamentary democracy and an effective statute book.

[3] See Inland Revenue Department (Drafting) Order 1995 (SR 1995/286).

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