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Cabinet Paper: Report of the Chief Parliamentary Counsel on the Review of Subpart 3 of Part 2 of the Legislation Act 2012

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Hon David Parker
Attorney-General

Report of the Chief Parliamentary Counsel on the Review of Subpart 3 of Part 2 of the Legislation Act
Published 

This document has been proactively released.

Lodged: 3 March 2021
Title: Report of the Chief Parliamentary Counsel on the Review of Subpart 3 of Part 2 of the Legislation Act
Author: Office of the Attorney-General

© Crown Copyright, Creative Commons Attribution 4.0 International (CC BY 4.0)


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In Confidence

Office of the Attorney-General

Chair, Cabinet Legislation Committee

Report of the Chief Parliamentary Counsel on the Review of Subpart 3 of part 2 of the Legislation Act 2012

Proposal

1. This paper outlines my intention to present the Chief Parliamentary Counsel’s report on revision Bills to the House of Representatives as I am required to do under section 36 of the Legislation Act 2012.

Background

2. Under section 36 of the Legislation Act 2012, I must, as soon as practicable after 6 years ending on 30 June 2020, require the Chief Parliamentary Counsel to prepare a report on:

2.1. the need for subpart 3 of Part 2 of the Legislation Act 2012 (Revision Bills);

2.2. subpart 3’s operation and effectiveness; and

2.3. whether any amendments to subpart 3 are necessary or desirable.

3. I am required also to ensure that appropriate persons are consulted and I must present the report to the House of Representatives as soon as practicable after receiving it.

4. Subpart 3 introduced the requirement for the Government to put in place 3-yearly programmes of revision Bills for each new Parliament. There have been 2 programmes of revision Bills (2015 to 2017 and 2018 to 2020) to date.

Comment

5.  The purpose of revision Bills is to improve access to the law by keeping New Zealand’s Acts up to date in language and form, without changing the substance of the law. This will enable people to more easily find, understand, and apply the law.

6.  Subpart 3 sets out the revision Bill powers and process. Selected Acts are rewritten to achieve a clear, consistent, and modern style of expression, which is consistent with current drafting style and format, to generally better express the spirit and meaning of the law. The revision powers authorise very limited changes in a revision Bill on introduction that may:

6.1. clarify Parliament’s intent, resolve ambiguity, or reconcile inconsistencies between provisions;

6.2. update certain monetary amounts for CPI changes;

6.3. update provisions for technological changes consistent with the spirit and meaning of the law; and

6.4. relocate matters of general principle in Acts and detail in secondary legislation.

7.  Subpart 3 is carried forward in subpart 3 of Part 3 of the Legislation Act 2019, which is expected to come into force during 2021.

8.  The Standing Orders Committee’s report Review of Standing Orders 2020 includes a recommendation for a Supplementary Order Paper mechanism that will enable limited, uncontroversial amendments that change the effect of the law to be incorporated into a revision Bill at the select committee stage.

9.  The Parliamentary Counsel Office manages the 3-yearly revision programmes and prepares revision Bills in consultation with departments. Maintaining the currency of their legislation is a key part of a department’s responsibilities in supporting their Minister to be a good steward of the public interest. The Parliamentary Counsel Office has a broader stewardship responsibility to promote high-quality legislation as a whole.

10.  To date, 2 revision Bills have been enacted (the Contract and Commercial Law Act 2017 and the Partnership Law Act 2019) that have modernised 13 Acts. The report covers the issues that impact on subpart 3’s operation and effectiveness. The experience of the first 2 programmes is that the revision process is valuable and has improved access to 13 Acts, with more in the pipeline. Given its nature, the process will inevitably be lengthy and resource-driven, but this could be mitigated by some improvements that the Chief Parliamentary Counsel proposes in her report to enhance the effectiveness of the revision process.

11.  The report recommends changes to subpart 3 to:

11.1. broaden the revision powers to permit limited, uncontroversial policy and technical changes;

11.2. replace the strict “no change in legal effect” certification test (required before introduction) with a test about whether the certifiers are reasonably satisfied that the changes to legal effect had been properly identified in a revision Bill;

11.3. expand the Chief Parliamentary Counsel’s duty to prepare a revision Bill and provide it to the certifiers for certification to include a duty to identify for the certifiers the changes to legal effect; and

11.4. clarify that revised provisions can be moved into an ordinary “non-revision” Act. In in that case, the interpretation rule (that a revision Act is not intended to change the effect of the law unless it expressly provides that a particular provision is intended to change legal effect) would apply only to the revised provisions. They would be clearly identified.

Consultation

12.  The Parliamentary Counsel Office consulted those agencies that had been consulted during the preparation of the 2 programmes on the draft report. The Office of the Clerk, Parliamentary Service, Department of Internal Affairs, Inland Revenue Department, Ministry of Business, Innovation and Employment, Ministry for the Environment, Ministry of Health, Ministry of Justice, Ministry for Primary Industries, Ministry of Social Development, Ministry of Transport, New Zealand Customs Service, and the Public Service Commission provided comments.

13.  The Parliamentary Counsel Office also consulted the revision Bill certifiers (retired High Court Judge Hon John Priestley CNZM QC, the President of the Law Commission, and the Solicitor-General).

14.  All comments were considered. They were generally supportive of the report and recommendations. There was some discussion about how to ensure changes would be limited and uncontroversial. The intention is that the PCO would develop a process for assessing, in consultation with agencies, whether a policy amendment would be within the scope of the broadened powers and the purpose of a revision Bill. This would require a judgement call about whether proposed changes to legal effect would be limited and uncontroversial. The Chief Parliamentary Counsel has a duty to prepare revision Bills in accordance with the revision powers and must have regard to the limits of those powers. The ministerial and Cabinet approval process would provide a further check. To get the Business Committee’s approval to a streamlined parliamentary process (for a revision Bill), a Bill would need to be uncontentious. If contentious, a Bill could be introduced as an ordinary Government Bill.

Financial and Legislative Implications

15.  Not applicable.

Publicity

16.  After the report is presented to Parliament, it will be published on the Parliamentary Counsel Office’s corporate website.

Proactive release

17.  I intend to proactively release this paper on the Parliamentary Counsel Office’s corporate website, subject to any appropriate withholding of information that would be justified under the Official Information Act 1982.

Recommendations

18.  I recommend that the Cabinet Legislation Committee:

1. note that under section 36 of the Legislation Act 2012, I must, as soon as practicable after the 6 years ending on 30 June 2020, require the Chief Parliamentary Counsel to prepare a report on the review of subpart 3 (Revision Bills) of Part 2 of the Legislation Act 2012;

2. note that subpart 3 introduced the requirement for the Government to put in place 3-yearly programmes of revision Bills for each new Parliament, and contains the revision powers and process requirements;

3. note the attached Chief Parliamentary Counsel’s report on the operation and effectiveness of subpart 3 over the last 6 years and her recommendations; and

4. note that, as required under section 36 of the Legislation Act 2012, I intend to present the Chief Parliamentary Counsel’s report to the House of Representatives.

 

Authorised for lodgement

Hon David Parker
Attorney-General

Attachment:  Report of the Chief Parliamentary Counsel on the Review of Subpart 3 of Part 2 of the Legislation Act 2012.

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