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Cabinet Paper: Implementation of the Legislation Bill

Coversheet for proactive release

Hon David Parker
Attorney-General

Implementation of the Legislation Bill
Released: 3 October 2019

This document has been proactively released.

Lodged: 19 September 2019
Title: Implementation of the Legislation Bill
Author: Office of the Attorney-General

Some information would not be appropriate to release and, if requested, would be withheld under the Official Information Act 1982 (the Act). The relevant section of the Act that applies is section 9(2)(f)(iv), maintaining the constitutional conventions for the time being which protect the confidentiality of advice tendered by Ministers of the Crown and officials. Where information has been withheld, no public interest has been identified that would outweigh the reasons for withholding it.

© 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

IMPLEMENTATION OF THE LEGISLATION BILL

Proposal

1  This paper seeks Cabinet's approval for changes to the Legislation Bill, currently awaiting its second reading. The proposed changes will provide for the Legislation Bill and its companion Bill – the Secondary Legislation (Access) Bill – to be commenced, before triggering the obligations on all 150+ makers of secondary legislation to lodge information about their secondary legislation with the Parliamentary Counsel Office (PCO) for publication on the New Zealand Legislation website. This will define secondary legislation in New Zealand law for the first time (as recommended by the Regulations Review Committee) and enable the PCO to later establish a service for agencies to lodge information about secondary legislation with the PCO, which will require new funding.

Executive summary

2  The Access to Secondary Legislation Project aims to improve access to a variety of regulations, rules, standards, and so on, that are made by Ministers, officials, and organisations inside and outside of government under powers delegated by Parliament (or under the Royal prerogative). It depends on two bills:

2.1  The Legislation Bill, currently awaiting its second reading, establishes for the first time one coherent category of secondary legislation.

2.2  The Secondary Legislation (Access) Bill (SLAB), which is in preparation, will determine which instruments made under Acts of Parliament fall within that category by amending the empowering provisions under which they are made.

3  When they are commenced, the bills will require all makers of secondary legislation to lodge details of that legislation with the PCO for publication on the New Zealand Legislation website. To enable this, the PCO will have to establish an electronic lodgement system and associated support processes, which will require new funding. [2 sentences redacted]

4  Rather than delay the commencement of the bills (which will deliver benefits beyond those of public access to secondary legislation) I propose to decouple the legal reforms to establish the category of secondary legislation from the publication changes needed to make them available through the New Zealand Legislation website. Under this proposal the current publication requirements for agency-drafted secondary legislation will be retained from the bills’ commencement until the lodgement service is available.

5  I also propose that the provisions of the Legislation Bill relating to publication of secondary legislation drafted by agencies come into force five years from the date of Royal assent (as opposed to three years currently), if not brought into force earlier by Order in Council. This will ensure that the PCO has sufficient time to implement the necessary IT and business changes to publish that secondary legislation. Other parts of the Bill will be able to be commenced very soon after assent.

6  Finally, I propose that the SLAB, comprising all the necessary amendments to empowering legislation, be introduced in the last quarter of 2019. This supersedes an earlier decision to introduce the amendments in two tranches (ie, a Bill followed by a large SOP at the select committee stage) which offers no particular advantage under the preceding proposal.

Background

7  Secondary legislation comprises a variety of regulations, rules, standards, and so on, that are made by Ministers, officials, and organisations inside and outside of government under powers delegated by Parliament (or made under the Royal prerogative). A subset of secondary legislation (called 'legislative instruments' in the Legislation Act 2012) is available on the New Zealand Legislation website (www.legislation.govt.nz) alongside Acts of Parliament. However, secondary legislation made by over 150 persons and organisations is published in a variety of ways, or not at all.  Furthermore, it is not fully clear what documents drafted by agencies count as secondary legislation (or, therefore, over what documents Parliaments can exercise oversight).

8  The Access to Secondary Legislation Project aims to implement recommendations of the Regulations Review Committee in 2014, and remove the legal complexity which underlies this confused status quo. It also lays the foundation for making as much secondary legislation as possible accessible from the New Zealand Legislation website.

9  The implementation of the project depends on two Bills.

9.1  The Legislation Bill, currently awaiting its second reading, establishes for the first time one coherent category of secondary legislation.

9.2  The Secondary Legislation (Access) Bill (SLAB), which is in preparation, will determine which instruments made under Acts of Parliament fall within that category. It will amend each provision on the statute book that empowers the making of instruments with legislative effect to classify those instruments as secondary legislation.

10  Part 3 of the Legislation Bill builds on this by requiring makers of secondary legislation to notify to the PCO details of all their secondary legislation to be published on the New Zealand Legislation website.

11  To enable this the PCO will have to establish a service that enables agencies to lodge information about secondary legislation for publication on the New Zealand Legislation website. This will consist of—

11.1  an electronic lodgement system for use by agencies when they make secondary legislation or notify and publish it under a delegation from a maker;

11.2  changes to the New Zealand Legislation website to enable secondary legislation drafted by agencies other than PCO to be listed and published on it; and

11.3  support to agencies both to prepare and lodge details of their existing secondary legislation, and to use the service on an ongoing basis.

12  The PCO has funded the project to date from baseline but operating the lodgement service will require additional funding. [2 sentences redacted]

Proposal to implement the Bills

13  Essentially I propose to decouple the legal reforms to establish the category of secondary legislation from the publication changes needed to make them available through the New Zealand Legislation website. This will deliver the benefits of clarifying and simplifying the law relating to secondary legislation while allowing centralised publication to be implemented when funding permits.

14  The PCO has evaluated options for progressing the project in the current financial year within available resources. One option would be to extend the legislative timeframe by delaying the introduction of the SLAB and the commencement of the Legislation Bill. However, I consider it a priority to complete the legislative changes by commencing both Bills because—

14.1  there is considerable benefit to be had in clarifying what is secondary legislation and what instruments are therefore subject (with limited exceptions) to Parliamentary oversight through the disallowance procedure;1

14.2  the Legislation Bill contains reforms to the statutory framework for New Zealand's legislation beyond those required to improve access to secondary legislation, which are useful in their own right; and

14.3  keeping the SLAB up-to-date is a resource-intensive activity for the PCO and agencies that administer empowering legislation because the Acts SLAB will amend are themselves subject to ongoing change. Without resourcing to do this in 2020/21 it could have to be abandoned.

15  Instead of delaying the commencement of the Bills, I propose that changes be made to the Legislation Bill so that the changes to publication of agency-drafted secondary legislation are only triggered once a lodgement system is available.

16  The key features of the proposed approach are to—

16.1  commence both Bills to clarify what instruments made under Acts and the Royal prerogative are secondary legislation and whether they are disallowable; but

16.2  preserve the status quo publication requirements in respect of instruments that become secondary legislation; and

16.3  provide for the subsequent implementation of the publication requirements set out in Part 3 of the Legislation Bill as envisaged (ie, enact those requirements, but allow for them to be implemented at a later date); and

16.4  apply new publication requirements for the few current legislative instruments that are being classified as administrative so that, over time, these are transitioned from being published on the New Zealand Legislation website to being published elsewhere.

17  The changes to the Legislation Bill to give effect to this staggered approach could be made by way of a Supplementary Order Paper (SOP) to the Legislation Bill.

18  This proposal involves saving existing publication requirements for all instruments which will be secondary legislation under the new provisions. These are currently diverse and prescribed in different places across the statute book. I therefore recommend that the PCO be required to make transparent what the saved publication requirements are and in a way that makes them easy for users to find.

19  Currently, the Legislation Bill provides that all parts of the Bill come into force on the third anniversary of Royal assent, unless they are commenced earlier by Order in Council. I propose that the provisions relating to publication of secondary legislation drafted by agencies have a backstop commencement date of the fifth anniversary of Royal assent. This will allow the other provisions of the Legislation Bill, along with the SLAB, to be commenced very soon after they receive assent while ensuring that there is a reasonable amount of time to implement the IT and business process changes in the PCO and agencies.

Subsequent implementation of Part 3 of the Legislation Bill

20  Subject to funding being available, the bulk of the work required to make secondary legislation available from the New Zealand Legislation website could begin to be implemented from financial year 2020/21 onwards. The PCO anticipates that the necessary technology and other systems will be developed during financial year 2020/21, with appropriate staff across all agencies being trained in the new systems and the service progressively implemented thereafter. This will involve all makers of secondary legislation lodging details of their in-force legislation with the PCO and the creation of a catalogue of all secondary legislation for the first time. The Bill sets an initial deadline of 12 months for this from commencement of the relevant parts of the Legislation Bill. This deadline can be extended to a maximum of 5 years by Order in Council.

21  As the number of pieces of secondary legislation, and their size, is currently unknown (this being one of the reasons for the project) the Legislation Bill does not set a timeframe over which all secondary legislation must be reformatted and republished in full on the New Zealand Legislation website. It will be possible to set a timescale for this once all agencies have lodged details of their secondary legislation with the PCO.

Timing for introduction of the Secondary Legislation (Access) Bill

22  Cabinet previously agreed that the SLAB be split into two tranches [LEG-19-MIN-0031 refers]. The first tranche would be introduced as a Bill in mid-2019 and the second promoted as an SOP to be referred to the select committee while it is considering the first tranche. The intention behind this was to allow Parliament's consideration of the Bill, and thus the implementation of changes to the publication of secondary legislation, to begin sooner. In view of the proposal in this paper to defer implementation of those publication reforms, I no longer consider this necessary. I propose instead that the SLAB, comprising all amendments to empowering legislation, be introduced in the last quarter of 2019. This is also the approach supported by the Regulations Review Committee.

Consultation

23  The following agencies have been consulted on this paper:

  • Crown Law Office
  • Department of Conservation
  • Department of Corrections
  • Department of Internal Affairs
  • Department of the Prime Minister and Cabinet
  • Government Communications Security Bureau
  • Inland Revenue Department
  • Land Information New Zealand
  • Ministry for Culture and Heritage
  • Ministry for Primary Industries
  • Ministry for the Environment
  • Ministry of Business, Innovation, and Employment
  • Ministry of Defence
  • Ministry of Education
  • Ministry of Foreign Affairs and Trade
  • Ministry of Health
  • Ministry of Housing and Urban Development
  • Ministry of Justice
  • Ministry of Social Development
  • Ministry of Transport
  • New Zealand Customs Service
  • New Zealand Defence Force
  • New Zealand Police
  • New Zealand Security Intelligence Service
  • Office of the Clerk
  • Oranga Tamariki—Ministry for Children
  • Parliamentary Service
  • State Services Commission
  • Statistics New Zealand
  • Te Puni Kōkiri
  • The Treasury.

24  The agencies that commented support the proposals in this paper.

Financial Implications

25  The proposals in this paper do not have financial implications. [1 sentence redacted]

Legislative Implications

26  The Legislation Bill will be amended as a result of the proposals in this paper.

Impact Analysis

27  The Regulatory Quality Team at the Treasury has determined that the regulatory decisions sought in relation to this proposal are exempt from the requirement to provide an Impact Assessment as the relevant issues have been addressed in the business case.

Human Rights

28  The Legislation Bill is consistent with the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993.

Gender Implications

29  A gender analysis has not been undertaken. The Legislation Bill will benefit all users of legislation alike.

Disability Perspective 

30  The proposal has no specific disability implications, but will make it easier for people with disabilities to find the law.

Publicity

31  No publicity is proposed in relation to this proposal.

Proactive Release

32  The PCO will publish a copy of this paper on its website.

Recommendations

The Attorney-General recommends that the Committee—

note that the Legislation Bill, which is awaiting its second reading, includes reforms to improve access to secondary legislation by providing that information about secondary legislation currently published by other agencies (and, over time, the full text) be lodged with the PCO for publication on the New Zealand Legislation website

note that the PCO is preparing a companion Bill, with the working title of Secondary Legislation (Access) Bill (SLAB), to amend provisions in legislation that enable secondary legislation to be made to clarify that instruments made under these provisions are secondary legislation (and so must be published in accordance with the Legislation Act)

note that to implement the publication reforms to secondary legislation drafted by agencies the PCO will have to establish a lodgement service for agencies that make secondary legislation and will need new funding for this

note that there are benefits to commencing the Legislation Bill and SLAB to clarify what instruments are secondary legislation and the law that applies to them, even if the changes to the publication of secondary legislation are not triggered right away

agree that the Legislation Bill be amended to—

5.1  retain the current publication requirements for agency-drafted secondary legislation, from the Bill’s commencement until the lodgement service is available

5.2  require the PCO to make those saved publication requirements transparent, in a way that makes them easy for users to find

5.3  provide for a later implementation of the publication requirements set out in Part 3 of the Legislation Bill

5.4  provide for legislative instruments that do not become secondary legislation to be transitioned, over time, from being published on the New Zealand Legislation website to being published elsewhere

note that the changes to the Legislation Bill would be made by way of a Supplementary Order Paper

agree that provisions of the Legislation Bill relating to publication of secondary legislation drafted by agencies will commence on the fifth anniversary of Royal assent (unless commenced earlier by Order in Council)

agree that the Secondary Legislation (Access) Bill, including all the amendments to empowering legislation needed to implement the project, be introduced in the last quarter of 2019.

Authorised for lodgement

Hon David Parker

Attorney-General

 


1 The exceptions are secondary Legislation made under a provision listed in Schedule 3 of the Legislation Bill, bylaws (as defined in the Bylaws Act 1910), and secondary legislation made under the Royal prerogative, or by a resolution of the House of Representatives.

 

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